FILED

August 24, 1999

Cecil Crowson, Jr.

Appellate Court

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

MARTHA CARTER AND ) C/A NO. 03A01-9810-CV-00327

STEVEN A. CARTER, ) 

) SULLIVAN CIRCUIT

Plaintiffs-Appellants, )

) HON. RICHARD LADD,

v. ) JUDGE

)

USAA PROPERTY & CASUALTY )

INSURANCE, ) AFFIRMED

) AND

Defendant-Appellee. ) REMANDED

J. WESLEY EDENS, Bristol, for Plaintiffs-Appellants.

RICHARD M. CURRIE, JR., and JOEL A. CONKIN, WILSON, WORLEY &

GAMBLE, P.C., Kingsport, for Defendant-Appellee.

O P I N I O N

Franks, J.

From an adverse ruling in the Trial Court, plaintiffs, policy holders,

have appealed to this Court. 

The issues raised on appeal are:

1. Are the benefits paid under Part C - - Uninsured Motorists Coverage,

of the Automobile Insurance Policy subject to a reduction for payment

by USAA of additional medical expense benefits under Special

Coverages, Air Bags and Seat Belts, of the Automobile Insurance

Policy?

2. Is the award of $12,000.00 to Plaintiff, Steven A. Carter, for loss of

consortium a derivative action, such as to fall under the definition of that

term as it is used in Part C - - Uninsured Motorists Coverage, Limited

Liability, A, of the Automobile Insurance Policy?

Martha and Steven Carter, husband and wife, had an automobile
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insurance policy with U.S.A.A. Property and Casualty Insurance (USAA). Part B of

the policy provided medical payment benefits with policy limits of $10,000.00 per

person. That part also contained a provision which provided an additional $10,000.00

in medical benefits if the person is injured while protected by an air bag or a seat belt. 

Under Part C, the uninsured motorists coverage, the policy provided coverage for

bodily injury with limits of $100,000.00 pe r person and $300,000.00 per a ccident.

During the policy term, Martha Carter and her daughter Amira Nicole

Carter were involved in an accident with Billy L. King, who was uninsured. Ms.

Carter was protected by an air bag, but she and her daughter both suffered injury in the

accident. The Carters brought suit against Billy L. King, and a jury returned a verdict

attributing 80% of the fault for the accident to Billy L. King and 20% fault to Martha

Carter. Damages were assessed for Martha in the amount of $150,000.00 for bodily

injury, medical expenses and loss of earnings or earning capacity, and for her husband

Steven in the amount of $15,000.00 for loss of services and consortium. Amira

Nicole was awarded $1,000.00 for bodily injury, and her parents $500.00 for medical

expenses and loss of services of their daughter. The judgment was reduced by the

20% fault attributable to Martha, with the final judgment entered as follows: Martha

Carter - $120,000.00; Steven Carter - $12,000.00; Amira Nicole Carter - $800.00, and

Martha and Steven Carter - $400.00.

The dispute between the parties focuses on the construction of the

insurance contract. Issues relating to the scope of insurance coverage present

questions of law. Standard Fire Ins. Co. v. Chester O’Donley & Assoc., 972 S.W.2d

1, 5-6 (Tenn. App. 1998). Accordingly, our review is de novo without any

presumption that the judgment below is correc t. 

Contracts of insurance must be read in their entirety, and the language

used must be given its “plain and ordinary meaning, and where there is no ambiguity,
3

it is the duty of the Court to apply the words used in their ordinary meaning, without

any false construction. Paul v. Insurance Co. of North America, 675 S.W.2d 481,

483-4, (Tenn. App. 1984); Beef N’ Bird of Am. v. Continental Cas. Co., 803 S.W.2d

234, 237 (Tenn. App. 1990). 

We find no ambiguity in the policy before us. Under Part C, the

uninsured motorists coverage, the policy has limits of $100,000.00 per person and

$300,000.00 per accident. Part B deals with medical payments coverage, and has a

limit of $10,000.00 pe r person. Under the he ading “Limit of Liability,” Part B

provides: 

A. Medical Payments Coverage:

. . . 

2. Any amounts otherwise payable for expenses under Medical

Payments Coverage shall be reduced by any amounts paid or

payable for the same expenses under Part A or Part C.

3. If we make a payment to an injured person under Medical

Payments Coverage, that payment shall be applied toward any

settlement or judgment that person receives unde r Part A or Part

C.

Under this provision, the benefits paid to Ms. Carter under the medical payments

coverage of Part B must be applied toward her total recovery of $100,000.00 under the

uninsured motorists coverage. However, Part B contains a special provision dealing

with air bags and seat belts, which provides as follows:

If Medical Payments Coverage is in effect and a covered person

is wearing a seat belt, prote cted by an air bag or in an appropriate child

restraint devic e at the time of an accident, we will:

1. Increase the limit of liability shown in the Declarations for

Medical Payments Coverage by $10,000.00 for that covered person for

that accident.

. . . .

It is clear from this language that the intent is to increase the limit of

liability for medical payments by $10,000.00 for a covered pe rson for one ac cident. 

Plaintiffs point to language found outside the insurance policy for the proposition that

$10,000.00 is a separate benefit from the medical benefits. However, since the policy
4

language is not ambiguous, we do not resort to extrinsic evidence. See Blue Diamond

Coal v. Holland-America Ins. Co., 671 S.W.2d 829, 833 (Tenn. 1984). 

Next, plaintiff Steven Carter contends that his judgment for loss of

consortium is not a derivative action, such as to fall under the definition in the

uninsured motorists coverage. Pa rt C of the policy sets forth the uninsured motorists

coverage, which has limits of $100,000.00 per person and $300,000.00 pe r accident. 

Under the heading, “Limit of Liability,” in Part C, the policy states: 

A. For BI (bodily injury) sustained by any one person in any one

accident, our maximum limit of liability for all resulting damages,

including, but not limited to, all direct, derivative or consequential

damage s recoverable by any persons, is the limit of BI liability shown in

the Decla rations for “e ach Person” for UM Coverage. Subject to this

limit for “each person”, our maximum limit of liability for all damages

for BI resulting from any one accident is the limit of BI liability shown

in the Declarations for “each accident” for UM Coverage. . . . This is the

most we will pay regardless of the number of covered persons, claims

made, vehicles or premiums shown in the Declarations or vehicles

involved in the accident.

It is the Carters position, that the husband’s loss of consortium claim, though

derivative of the wife’s injuries, is a separate claim which is subject to a separate “per

person” limit. The defendant, on the other hand, argues the policy includes loss of

consortium cla ims in its per person limit for the injured party. 

While we have long recognized that the husband or wife’s claim for loss

of consortium is derivative in the sense that the injuries to his or her spouse are an

element that must be proved, the loss of consortium is a right independent of the

spouse ’s right to recove r for the injuries. Swafford v. Chattanooga, 743 S.W.2d 174,

178 (Tenn. App. 1987). The right to recover for the loss of consortium under an

insurance policy may be limited to the per person policy limits, depending upon the

construction of the policy. See Yancey v. Utilities Ins. Co., 23 Tenn. App. 663, 137

S.W.2d 318, 325 (1939). Accord, Harper v. Kelley, No. 03A01-9106CV199, 1991

WL 220611 (Tenn. App. Oct. 31, 1991). In the policy before us, giving the language
5

its ordinary and natural meaning, it limits the liability for injuries to one person to

$100,000.00. This limit of liability is for bodily injury to any one person, and “a ll

resulting damages, including, but not limited to, all direct derivative or consequential

damages recoverable by any person”. This includes the loss of consortium claims,

which are derivative a ctions and recoverable by someone other than the physically

injured party. Accordingly, we affirm the judgment of the Trial Court and remand

with cost of the appeal assessed to the appellants.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

Charles D. Susano, Jr., J.