# FILED August 24, 199

9 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 STEV EN A . CAR TER , ) ) SULLIV AN CIR CUIT Plaintiffs-Appellants, ) ) HON. RICHARD LADD, v. ) JUDGE ) USAA PROPERTY & CASUALTY ) INSURANCE, ) AFFIRMED ) AND Defendant-Appellee. ) REMANDED

J. WESLEY EDENS, B ristol, for Plaint iffs-Appellants. RICHARD M. CURRIE, JR., and J OEL A. CONKI

N, WILS ON, WORLEY & GAMBL E, P.C., Kingsport, for Defendant-Appell ee.

O P I N I

O N Franks, J. From an adverse ruling in the Trial Court, plaintiffs,policy holders, have a ppeale d to this C ourt.

The issues rais ed on appeal are: 1. Are the benefits paid under Part C - - Uninsured Motorists Cover age, of the Automobile Insur ance Policy subject to a reduc tion for pay

ment by USAA of additional medical expense benefits under Special Coverages, Air Bags and Seat Bel ts, of the Automobil

e Insurance Poli cy? 2. Is the award of $12, 000.00 to Plaint iff, Steven A. Cart

er, for loss

of consortium a deri

vative action, such as to fal l under the defini

tion of that term as it i s used in Part C - -Uninsured Motorists Cover age, Limited Liab ility, A , of th e Au tom obil e Ins uran ce P olicy? Martha a nd Steven Carter, husb and and w ife, had an a utomob ile2

insurance policy with U.S.A.A. Prope rty and Casual

ty Insura nce (USAA). Part B of the policy

provided medical pay

ment benefits wit

h policy l

imits of $10,000. 00 per person. That part

also contained a pr

ovision which provided an additional $10,000.00 in med ical ben efits if th e perso n is injur ed wh ile prote cted by an air bag o r a seat b elt. Under Part C, the uninsured motorists coverage, the pol

icy provide

d coverage for bodily injury with lim its of $100 ,000.00 pe r person an d $300,0 00.00 per a ccident.

During th e policy term, M artha Carte r and her d aughter A mira Nico le Carter were involved in an accident with Billy L. King, who was uninsured. Ms. Carter was protect

ed by an air bag,

but she and her daughter both suffered inj ury in the accident. The Cart

ers brought sui

t against Bil

ly L. King, and a

jury ret urned a verdict attribut ing 80% of the fault for t he accident to Bil

ly L. King and 20% fault t o Martha Carter. Da mages w ere assessed for Ma rtha in the am ount of $ 150,000 .00 for bo dily injury, medical expenses and loss of earnings or e arning capacit y, and for her

husband Steven in the amo unt of $15,000.00 for loss of services and c onsortium. Am ira Nicole was awarded $1,000.00 for bodily i njury, a nd her parents $500. 00 for medical expenses and loss of se rvices of thei

r daughter. The j udgment was reduced by the 20% fault attri

butable to Martha,with the final j udgment entered as fol lows: 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 par ties focuses on t

he constructi on of the insurance contr

act. Issues

relating t

o the scope of insura

nce coverage present questio ns of la w. 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 presum ption th at the jud gmen t below is correc t.

Contracts of insur

ance must be read in t

heir entir ety, and t he language used mus t be g iven its “p lain a nd o rdin ary m eani ng, a nd w here ther e is n o am bigu ity,3

it is the duty of the Court

to apply t

he words used in their

ordinary meani

ng, without any false constru ction. Paul v. Insurance Co. of North America , 675 S.W.2d 481, 483-4, (Te nn. App . 1984); Beef N’ Bird of Am. v. Conti nental Cas. Co. , 803 S.W.2d 234, 23 7 (Ten n. App . 1990)
.

We find no ambiguity i n the policy

before us. Under Part C,the uninsured motorists coverage, t he 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. U nder the he ading “L imit of Liab ility,” Part B provides: A. Medical Payments Coverage:

. . . 2. Any amounts other wise payable for

expenses under Medical Payments Coverage shal l be reduced by any

amounts paid or paya ble f or the same

expens es under Par

t A or P art C. 3. If we make a payment t o an injured person unde r Medical Payments Coverage, t

hat payment shal

l be applied t

oward any settlement or judgmen t that person receives unde r Part A or Part C. Under th is provision, th e benefits p aid to Ms . Carter und er the med ical payments coverage of Part B must be appl ied toward her tot

al recovery

of $100,000.00 under the uninsured motorists coverage. However, Par t B contains a special provision de aling with air bags and seat belts, which provides as follows:

If Medical Payments Cover age is in effect

and a covered person is wearing a seat belt, prote cted by an air b ag or in an a ppropriate c hild restraint devic e at the time o f an accide nt, we w ill: 1. Increase t

he limit of l

iabilit y shown in the Declar

ations for Medical Payments Coverage by $10,000.00 for that

covered person for that acciden t.

. . . . It is cle ar from this l anguage that the i ntent is t o increase the l

imit of liability for m edical p ayments by $10,0 00.00 f or a cov ered pe rson fo r one ac cident. Plaintiffs point to language

found outside the i

nsurance policy

for the proposit

ion that $10,000.00 is a se

parate benefit

from the medical benefi ts. However, since

the policy4

langua ge is no t ambig uous, w e do no t resort to extrinsic eviden ce. See Blue Diamond Coal v. Holland-America Ins. Co. , 671 S .W.2d 829, 83 3 (Ten n. 1984 ).

Next, plainti

ff Steven Carter cont

ends that his j udgment for loss of consortium is not

a derivative a

ction, such as

to fall under t

he definition i

n the uninsured motorists co verage. Pa rt C of the p olicy sets forth the uninsured motorists
covera ge, wh ich has limits of $100,0 00.00 p er perso n and $ 300,00 0.00 pe r accide nt. Under th e heading , “Limit of L iability,” in Part C, the policy states:

A. For BI (bodily

injury) sustained by

any one person in a

ny one accident, our maximum limit of liability for all resulting damages, including, but

not limited t

o, all dir ect, deriva

tive or consequent

ial damage s recovera ble by any person s, is the limit of B I liability shown in the Decla rations for “e ach Perso n” for U M Co verage. Su bject to this limit for “e ach person”, our maximum li mit of liabi

lity for all damages for BI res ult ing f rom a ny o ne ac cide

nt i s th e limit

of BI l iabi lit y shown in the Declarat

ions for “each accident” for UM Coverage. . . . This is the most we will pay r egard less of the number of cove red pe rsons , cl aims made, vehicles or

premiums shown in the Declarat ions or vehicles involved in the acciden t. It is the Car

ters posit ion, that t

he husband’s loss of cons ortium claim, though derivative of t

he wife’s injuri

es, is a separ

ate claim which is

subject to a s eparate “per person” limit . The defendant, on t he other hand, argue s the policy includes loss

of
conso rtium cla ims in its p er perso n limit fo r the inju red par ty.

While we have long recognized that the husband or wife’s claim for loss of consortium is de

rivative i n the sense that

the injuries to his or her spouse are an element that must

be proved, the los s 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 consor

tium under an insurance policy may be li mited to the per

person policy

limits, depending upon the constru ction of the polic y. See Yan cey v. Util ities In s. Co ., 23 Tenn. App. 663, 137 S.W.2 d 318, 3 25 (19 39). Accord, Harper v. Kelle y , No. 03A01-9106CV199, 1991 WL 220611 (Tenn. App. Oct. 31, 1991). I n the policy

before us, givi

ng the language5

its ordinary and n atural mean ing, it limits the liability for in juries to one p erson to $100,00 0.00. This lim it of liability is for bod ily injury to any one pers on, and “a ll resulting da

mages, including,

but not limit

ed to, all di

rect derivat

ive or consequenti al damages recoverable by any person”. This includes the loss of consortium claims, which ar e derivative a ctions and r ecoverab le by someon e other than the physically injured part

y. Accordingl

y, 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. Godd ard, P.J.

___________________________ Charles D. Susano, Jr., J.