Appellant-defendant Celina Mutual Insurance Company (Celina) is appealing an adverse summary judgment rendered in favor of appellee-plaintiff Shirley D. Forister in the amount of $25,000 plus $3,333.33 in prejudgment interest together with costs. The basis for Forister’s complaint against Celina is that Celina is liable to her on an unsatisfied judgment which she obtained against her former husband Parker Wells (Wells) in a personal injury action brought to remedy the injuries she received when Wells shot her in their home. At the time of the shooting Wells was covered by a broad form homeowner’s policy with Celina.
Celina claims the trial court’s summary judgment against it in the present case is erroneous because 1) genuine issues of material fact exist regarding its policy defense that Forister’s injuries were “expected or intended” by Wells; and 2) Celina was entitled as a matter of law to refuse to defend Wells in the Forister/Wells suit based upon the policy’s exclusion of coverage for injuries expected or intended from the standpoint of the insured, and thus Celina is not precluded from raising the intended injury defense in the present action. Because we find Celina failed in its burden of establishing a genuine issue of material fact regarding its affirmative defense that Wells intentionally inflicted Forister’s injuries, we affirm the trial court’s judgment and need not address the second issue.
FACTS
The facts are undisputed that on 4.pril 26, 1978 Wells injured his wife, Shirley Wells (now Forister) by shooting her in their home. At the time of the incident Wells was insured by Celina under a “Broad Form” homeowner’s policy which provided:
“COVERAGE E—PERSONAL LIABILITY. This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligаted to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, evеn if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient.” 1
The policy section entitled “Coverage F— Medical Payments to Others” obligated Celina
“to pay all reasonable medical expenses, incurred within onе year from the date of the accident, to or for each person who sustains bodily injury to which this insurance applies caused by an accident, while *1009 such person is ... on an insured premises with the permission of any Insured; or . . . elsewhere, if such bodily injury ... is caused by the activities of any Insured.”
The exclusion section of the policy provided:
“[t]his policy does not apply .. . [ujnder Coverage E—Personal Liability and Coverage F—Medical Payments to Others . . . [for a loss due] to bodily injury ... which is either expected or intended from the standpoint of the Insured.”
Forister brought the present action against Celina on December 11, 1979 in Bartholomew Superior Court and alleged she had an unsatisfied judgment against Wells, Celina’s insured, in the sum of $75,-000, which judgment she had received on August 24, 1979 in a personal injury action she had brought against Wells in the Jennings Circuit Court to recover damages for her injuries resulting from the shooting incident. The theory of her present complaint is that the shooting incident was covered under Wells’s homeowner policy and consequently Celina is responsible for the unsatisfied judgment against Wells. It is undisputed that Forister’s complaint against Wells simply alleged Wells “negligently and carelessly shot and wounded” Forister, and Celina did not defend Wells in the Forister/Wells action. Further, the parties agree that at the time the trial court entered summary judgment in the instant ease, Foristеr had established her judgment against Wells, the existence of the homeowner’s policy and that the policy provided facial coverage for her injuries. Celina’s theory of defense, as stated in the trial court’s pre-trial order, was the policy specifically excluded coverage for bodily injury intentionally inflicted by the insured.
In an affidavit supporting its affirmative defense and in opposition to Forister’s summary judgment motion, Celina’s trial attorney averred he was “generally familiar with defendant’s [Celina’s] file in this matter and the various occurrences before, during and after the 1978 shooting,” and asserted that the facts established the shoоting to have been committed intentionally. The trial judge also conducted a hearing at which he heard testimony from Celina’s counsel pertaining to Celina’s refusal to defend Wells.
As noted above, the trial judge entered judgment against Celina in the sum of $25,-000 (the policy limits) plus prejudgment interest in the amount of $3,333.33 together with costs.
DISCUSSION AND DECISION
At the outset we note the well-settled rule that summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.
Criss v. Bitzegaio,
(1981) Ind.,
With respect to which party generally carries the burden of proof regarding an exception to an insurance policy, our Supreme Court has stated “[i]f the loss is within a warranty or exception, it is a matter of defence, [sic] which must be pleaded affirmatively by the defendant.”
Louisville Underwriters v. Durland,
(1890)
“Snodgrass [the judgment holder] established a prima facie case by presenting evidence of his judgment, the insurance policy and facial coverage undеr the policy, i.e., the policy provided coverage for bodily injury due to an accident caused by the insured. It then became incumbent upon Penn Mutual to go forward with evidence sufficient to create a genuine question of fact. The insurance company introduced evidence that Baize’s act was intentional and, thus, not covered by the policy. The trial court, faced with a conflict in the evidence, resolved the conflict in Penn Mutual’s favor. On appeal we will not reweigh the evidence.”
Id. at 647.
In the present case the record reveals (as Celina conceded at oral argument) that at the time оf summary judgment Forister had established her prima facie case—her negligence judgment against Wells, the insurance policy and facial coverage under the policy. It then became incumbent upon Celina to present material sufficient to establish a genuine issue of fact regarding its affirmative defense, that is, Wells’s actions were intentional and thus fell within the intentional injury exclusion of the policy.
Here, in ruling on the summary judgment motion the trial court had before it the pleadings, Forister’s motion, Celina’s affidavit and the testimony of Celina’s counsel. Having reviewed these materials we find the only information to show Wells intentionally shot Forister, as contended by Celina both in the trial court and on appeal, is contained in the affidavit by Celina’s trial counsel. 2 This affidavit as it relates to Wells’s intent reads as follows:
“Comes now defendant by its counsel, C. Richard Marshall, and being first duly sworn upon his oath, does say the following in opposition to Plaintiff’s Summary Judgment Motion:
1. that he is counsel for dеfendant and is generally familiar with defendant’s file in this matter and the various occurrences before, during and after the 1978 shooting which is the subject of this case;
2. that the shooting of Shirley Wells (now Forister) by her then husband, Parker (Parkey) Wells was accomplished by his using a 6-shot .22 cal. non-automatic revolver which required the trigger to be pulled for each shot; that on April 26, 1978, defendant’s insured, Parkey Wells, discharged 5 shots from the weapon and struck plaintiff Forister with 4 of them; that said revolver had no safety on it and apparently contained only 5 shells, the empty cylinder being used as a resting place for the hammer;
* sis * * * *
6. that at the criminal trial against Mr. Wells arising out of this shooting icident [sic] (Jennings Circuit Court 78-CR-35) Mr. Wells pleaded not guilty and did not enter an insanity defense with a plea of not quilty [sic] by reason of insanity;
7. that at no time has Parkey Wells ever advised defendant, or claimed to defendant, that at the time of the shooting he was insane or was of an unsound mind such that he did not *1011 intend or expect the shooting of or injuries to his wife.”
(Record pp. 84-85.) The jurat of the affidavit read in part: the “things ... contained [in the affidavit] are true as he [Celina’s attorney] verily believes.”
Ind. Rules of Procedure, Trial Rule 56(E) requires,
inter alia :
“[supporting and
opposing affidavits shall be made on persona] knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affi-ant is competent to testify to the matters stated thеrein.”
The assertion in a summary judgment affidavit of conclusions of law or opinions by one not shown to be qualified to testify to such will not suffice.
E.g., Podgorny v. Great Central Insurance Co.,
(1974)
Returning to the case at bar, the affidavit by Celina’s trial counsel asserted he was “generally familiar with” the “file in this matter” and the events of this case;
*1012
however, there is no showing that he had personal knowledge of the statements set forth in his affidavit, nor is there any showing he would be competent to testify to the matters stated therein. The affidavit does not affirmatively indicate Celina’s attorney had any firsthand knowledge of the shooting incident let alone personal knowledge of the type of weapon used, nor did the affidavit establish that the attorney was competent to testify to the mechanics of non-automatic .22 caliber revolvers. Were we free to go beyond the language of the affidavit we might be able to infer from the attorney’s investigation of his case that he had some personal knowledge of revolvers; but Celina’s counsel foreclosed such an inference by affirmatively stating his averments were “true as he verily believes” as opposed to “on personal knowledge.” Moreover, we are mindful of authority disregarding an attorney’s conclusory summary judgment affidavit even when it claims it was made on “personal knowledge” in the absence of an affirmative showing of a firsthand knowledge of the facts underlying the attorney’s conclusions.
Cozzens v. Bazzani Bldg. Co.,
(E.D.Mich.1978)
Affirmed.
Notes
. The policy defined an “ocсurrence” as “an accident . .. which results ... in bodily injury or property damage.”
. Interestingly Celina’s pretrial witness list, which was filed before the summary judgment motion, contained the names of state police officers who apparently were involved in an investigation of the shooting. The list also mentioned the name of a Cоlumbus policeman who was a “firearms expert.” Celina did not file any affidavits of these individuals in opposition to the summary judgment motion. Moreover, three days after summary judgment was entered Celina requested the trial court for leave to file a certified transcript of the evidence in the Forister/Wells suit. Celina nevеr obtained a ruling on its motion.
. The federal rule contains the following language identical to our T.R. 56(E): “ [supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e). Where an Indiana trial rule is patterned after a federal rule, “the authorities on the latter are helpful in construing our Indiana rule.”
Gumz v. Starke Cty. Farm Bureau Co-op Ass’n.,
(1979) Ind.,
. We are aware the trial court entered findings with its summary judgment. Findings of fact are inappropriate when no issues of fact exist as in the case of summary judgment.
Uhl v. Liter's Quarry of Indiana, Inc.,
(1979) Ind.App.,