### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 23, 2002 Session BETTY BLACK AND BARRY E. GOINS, v. STATE FARM MUTUAL

AUTOMOBILE INSURANCE COMPANY Direct Appeal from the Circuit Court for Washington County No. 20932 Hon. John K. Byers, Senior Judge

FILED NOVEMBER 6, 2002
No. E2002-00206-COA-R3-CV

In action for

breach of insurance contract, the Trial Court granted Summary

Judgment on the ground insurance company

had prop erly

satisfie d all claims un der plaintiffs’ policies. Plaintiffs have appeale d. We aff

irm. Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d.
H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.
Bruce D. Fox, Clinton, Tennessee, C. Neal Pope, R. Timothy Morrison, Michae l L. McGl amry , Wade H. Tomlinson, Atlanta, Georgia, Thomas C. Jessee, Johnson City, Tenne ssee, and W. Gordon Ball, Kn oxville, Te

nnessee , for App ellants. Stephen G. Anderson, Knoxville, Tennessee, for Appellee.

OPINION

In this acti on for b reach of contract, the Trial Court g ranted defendant summary judgment and plaintiffs have appealed.

Plaintiffs had policies of

insuranc e with def

endant a nd were involved in automobile accide nts which resulted in damage to their insu red vehi cles. De

fendant , in adjust

ing the c laims pursuant to the policy, paid the body shop estimate of repairs to plaintiffs, and neither plaintiff was “dissatis fie d with the qua lity of the repairs” . Plaintiffs then brought this action for breach of-2-

contract, claiming their vehicles had been diminished in value as a result of the accident and repa irs. Plaintiffs offered evidence that their vehicle s had, in fact, been diminished in value, while defendant offered evidence that there ha d been no diminution. The insurance policies at issue contain a section dealing speci fical ly with co verage for physical damag e, and define a loss as “each direct and accidenta l loss of or damage to . . . y our car.” The policies state that defendant will pay for “loss to your ca

r . . . but only for the amount of eachsuch loss i n excess of the deductible amou

nt.” The policies t hen have a subse ction ent

i tled “Limi t of L iability ” which s tates: The limit of our liability for loss to property or any par

t of it is the lower of:
1. the actual cash value; or 2. the cost o f repai

r or rep laceme

nt.
Actual cash value is determined by the market value, age and condition at the time the loss occurred. Any

deductible amount that applies is then subtracted.
The policy then

describes how the loss may be paid under certain circumstances. The Trial Court, in granting summary judgment, determined that the policy

langua ge wasunambig

uous, which provided that the defe ndant ’s liability would be limited to the actual cash value or cost of repair /replac ement. Essentially, the Court held that plaintiffs had no right to recover any diminution in value in addition to the cost of repair.

The issue of the scope of coverage and/or construction of an insuranc e contra

ct is a question of la w, and the T rial Court’s decision granting summary judgment is not entitled to a presumption of correctness on appeal. Standard Fire Ins. Co. v. Chester O’Donley , 972 S.W.2d 1 (Tenn. Ct. App. 1998).

It is th e duty of the Cou

rt to interpret

an insurance policy

as written and give to the policy’s terms their natural and ordinary mea

ning. Insurance

policies are subject

to the same rules of co ns truction t

hat are used to int

erpret other ty pe of con tracts a nd courtsmust give

effec t to provisions in an insurance policy where the terms are clear a nd the intent is certain. See Merrimack Mutual Fir

e Ins. Co., v. Batts, 59 S.W.3d 142 (Tenn. Ct. App. 2001). Also see, Gouge v. Ryan , 1 S.W.3d 663-665 (Tenn. Ct. A pp. Easte rn Sectio n 1999). B ut where the contr actual writ ing is not plain and unambi guous, extrinsic evidence may be considered in order that the trier of fa ct may determine the actu al intent o f the par ties to the contract. See in re: Estate of Espey, 729 S.W.2d 99 (Tenn. Ct. App. 1986).

We agree with the Trial Court, that the quoted limit of liability p

rovision in defendant’s policies is not ambiguou s. T his concl usion is re

inforce d by

the opinio ns of cour

ts in numerous other jurisdictions who ha v e considered the same or similar policy provisions, and concluded

there was no ambiguity

in rejecting plaintiffs’ theory of recovery

. See Wildi

n v. Amer

.-3-

Camily Mut. Ins. Co., 638 N.W.2d 87 (Wis. Ct. App. 2001); Fishel v. Financial Indemn. Co. , No. 99 2 08051 9 (

Wash. Supe

r. Ct. Dec . 1, 2000) ; Carlton v. Trinity Univ. Ins. Co. , 32 S.W.3d 45 4 (Tex. Civ. App. 2000 ) (revie w denied Apr. 12 20 01); Smither v. Progressive County Mut. Ins. Co. , 2002 WL 730535 (Tex. Civ. App. Apr. 25, 2002); Kent v. Cincinnati Ins. Co. , 2001 WL 1566969 (Ohio Ct. App. Dec. 10, 200 1); Camden v. State Farm Mut. Automobile Ins. Co. , 66 S.W.3d 78 (Mo. Ct. App. 2001); Lupo v. Shelter Mut. Ins. Co. , 70 S.W.3d 16 (Mo. Ct. App. 2002 ); Spellman v. Sentry Ins. , 66 S.W.3d 74

(Mo. Ct. Ap

p. 2001); O-Brien v. Progressive Northern Ins. Co. , 785 A.2d 281 (Del . 2001); Pritchett v. State Farm Mut. Ins. Co. , 2002 WL 254007 (Ala. Civ. App. Feb. 22, 2002), cert. denied, No. 1011129 (Ala. May 17, 2002) ; Unigard I

ns. Co. of Se attle v. W

ish , 496 S.W.2d 392 (Ark . 1973); Siegle v. Progressive Consumers Ins. Co. , ___ So. 2d. __ _, 200 2 WL 1029196 (Fla. Ma

y 23 , 2002); General

Acciden t Fire &

Life Assurance Corp. v. Judd , 400 S.W.2d 685 (Ky . 1966); Manguna v. Pudential Property & Casualty Ins. Co. , 276 F.3d 720 (5 th Cir. 2002); Townsend

v. State F arm Mut. Automobile Ins. Co., 793 So.2d 473 (La. Ct. App. Aug. 22, 2001), writ denied , 804 So.2d 635 (La. Dec. 14, 2001); Campbell v. Markel American Ins. Co. , 2001 La. App. LEXIS 1967 (La. Ct. App. Sept. 21, 2 001); Carter v. State F

arm Mut. Auto. Ins. Co. , 87 N.W.2d 105 (Mich. 19 57); Riley v. National Auto Ins. Co. , 77 N.W. 241 (Neb. 19 56); Bickel v. Nationwide Mut. Ins. Co. , 143 S.E.2d 903 (Va. 1965); Stucker v. Travelers Indem. Co., 84 N.W.2d 566 (S.D. 1957). However, P la intiffs str enuously argue that “Te nnessee law is com

pletely differe nt, unlike any of the c ases . . . from other jurisdictions , th e rule of law established in Tennessee has developed

consistently and from an unbr oken line of cases datingback more than72 years” . They contend that while the wording of the policy

itself may not “aff

ord coverage for diminished value” a line of cases in Tennessee established covera ge for diminished value a nd become s a part of the insurance contracts covering motor ve hicles in this state.
A ca re fu l a na lys is of th e casesrelied u pon by plaintiff s, does no t establis h this premise as a matte

r of law. Plaintiff

s cite as s eminal au

thority for their posi tion St oops v. Fi rst Amer

. Fire Ins. Co. , 22 S.W.2d 1038 (Tenn. 1930). The policy lang uage in Stoops , unlike t h e langua ge in the polic ies befo re us, wa s held

to be ambi guous a

nd the Cour

t constru ed the pol

icy in favor of the insured. The next case relied upon by p laintiff

s is Weems v. Service

Fire Ins. Co. of NY

, 178 S.W.2d 377 (Tenn. 1944). The Wee ms Court held the disputed l angua ge in tha t case a s “almost identica l” to the Stoops policy and construe d the policy ag ainst the insurance company . The subsequent

cases cited by

plaintiffs, i.e., Mason v. Tenn. Farmers Mutual , 640 S.W.2d 561 (Tenn. Ct. App. 1982), and Senter v . Tenn. Farmers Mutual Ins. Co. , 702 S.W.2d 175 (Tenn. Ct. App. 1985), are not authority for holding the language in the policies before us is ambiguous, nor do they establish diminution of value as a doctrine to be appl ied by Tenness ee cour

ts to all moto

r vehicl e policies.
Plaintiffs have cited a few cases from other jurisdictions, which as a matter of law construe a poli cy of insu rance aga inst t he ins urer wi thou t firs t find ing th e poli cy language ambiguo us. See e.g ., StateFarm Mut. Automobil e Ins. Co. v. Mabry , 556 S.E.2d 114 (Ga. 2001). As we have

noted, thi s rule doe s not apply in Tenne ssee unti l the Court determines that the wording-4-

of the policy

is ambiguous. These holdings are consistent with Stoops , but as we have also noted, Stoops found the policy

langua ge to be ambiguo us befor e constr uing the policy agains tthe insurance co mp an y. Under

Tennessee law, policies of insurance are treated like other contracts. The plain and ordinary mea

ning is given to the terms of the policy to establish the intent of the part ies, and unless an d until the l angua ge of th e policy itself is d etermine d to be amb iguous, the cour t will not construe the policy a

gainst the insurer in favor of the insured.
For the foregoing reasons, we affirm the Jud gment of the Trial Court and remand, with the c ost of the

appeal a ssessed t

o the appe

llants.

_________________________ H ERSCHEL P ICKENS F RANKS , J.