### FILED March 08, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

LARRY S. GO UGE and wife, ) C/A NO. 03A01-9805-CV-00174 CAROL J. GOUGE, ) ) SULLIV AN CIR CUIT Plaintiffs-Appellants, ) ) HON. JO HN M CLELL AN, III, v. ) JUDGE ) FRED B. RYA N, ET AL., and ) AFFIRMED FRED B. RYAN, ) AND ) REMANDED Defendants, ) ) and TENNESSEE FARMERS MUTUAL) INSURANCE C OMPANY, ) ) Defendant-Appellee. ) _________________________________ ) ) MISTY A. GOU GE, a minor child, by ) her parents and natural guardians, ) LAR RY S . GOU GE an d CA ROL J. ) GOUGE, ) ) Plaintiff-A ppellant, ) ) v. ) ) FRED B. RYAN, ET AL., a nd FRED ) B. RYAN, ) ) Defendants, ) ) and TENNESSEE FARMERS MUTUAL) INSURANCE C OMPANY, ) ) Defendant-Appellee. )

SHELTO N B. HILLM AN, JR., GORE & HILLM AN, Bristol, for PlaintiffsAppellants. STEVEN C. RO SE, WEST & RO SE, Kingsport, for Defendant -Appellee.

O P I N I

O N Franks, J.2 The dispo sitive issue on this appeal is w ell stated by the ap pellant: “Does the wording of the subj ect policy of insurance expand ‘bodi ly inj ury to a person ’ to inclu de deriv ative cla ims.”

This case arise s from an automobile acci dent that occurr

ed on March 9, 1996. Misty Gouge, a minor, was injured i n the accident,and her parents Larr y and Carol Gouge sought damages for Misty ’s medical expenses , as well as der ivative claims for medical expenses and loss of services.

Anticipating a

deficit in t

he amount of the defendant’ s insurance coverage, the Go uges also sought to reco ver from their underinsu red carrier, Tenness ee Farme rs Mutua l Insurance compan y. This policy prov ided split limits coverage with $100,000. 00/$300,000.00 poli cy limit s. Tennessee Farmers Mutual moved for partial s

ummary judgment, claiming that t he policy’ s $100,000.00 “per person” limit

applied to al

l of the Gouge’s clai

ms. The Trial Judge gra nted the motion and later am ended the previous o rder to cons titute a final jud gment, pu rsuant to T.R.C.P. Rule 54.02.

The insurance policy at issue contains the foll owing relevant sections: Bodily injury

means injury

to a person and the si

ckness, diseas e or death of that person resulti ng from that injur

y. Bodily

injury sustained by any one person includes al l injury and damages to others, including but not limit

ed to, the los s of services and l oss of consortium r

esulting from that b odil y inju ry. Limited of Liab ility . . . The maximum limit for “each person” includes damages claimed by t

he injured person f

or medical expenses,

loss of services and los s of consortium. The maxi mum limit of liabi

lity for “each person” also i

ncludes all damages

claimed by ot

hers, such as damage s for

medic al ex

pense s, l oss of

servicesand lo ss of c onsor tium , resulting fr

om the bodily i

njury sust

ained by the i

njured person. The parties dispute the m eaning of the forego ing langua ge. App ellants content that

they each, in addition t o their daughter, are entit led to up to $100,000. 00 each in co verage. T he appellee argues that th e $100,00 0.00 limit app lies to both Misty’s injuries and the appellant s’ claims.3 “Contracts of insurance, like other contract

s, are to be construed according to the sense and mea ning of the terms wh ich the parties have use d, and if they are clear an d unamb iguous, their te rms are to b e taken an d understo od in their plain, ordi

nary, and popular sense.” Guardian Life Ins. Co. Of America v. Richardson , 129 S.W.2d 1107, 1115 (Tenn. App. 1939) . Thus, where there i s no ambiguity, “it is the duty of the Court to apply to the wo rds used their ordinary meaning and neither par ty is t o be favored in thei

r constructi

on.” Brown v. Tennessee Auto. Ins. Co. , 237 S.W .2d 553, 55 4 (Tenn. 1 951). A c ontract is am biguous “ when it is of uncertai

n meaning and may fairl y be understood i

n more ways than one.” Empress Health and Beauty Spa Inc., v. Turner , 503 S.W.2d 188, 190-191 (Tenn. 1973). “A strained construction may not be placed on t he language used to fi

nd ambiguity where none e xists.” Id. at 191. In this case,

the contract i s not ambiguous. It states tha

t damages “claimed by ot

hers,” incl

uding loss of servi

ces, are subj ect to the same l imitation as the damages “sustai

ned by the inj ured person.” Thus,the policy includes withi

n the limit of cove rage for ea ch person claims for lo ss of service s arising from bodily injuries to one person. Since all the claims in this case derive from Misty’s injuri es, they are subj ect to a singl e limit of $100, 000.00. The Trial Court properly construed the contract. Moreover, other Tennessee cases have reached similar conclusions, albeit un der som ewha t differe ntly word ed con tracts. See e.g., Yancy v. Utilities Ins. Co. , 137 S.W .2d 318 (T enn. Ap p. 1939); Maryland Cas. Co. v. Gordon , 371 S.W.2d 460 (Tenn. A pp. 1963).

Appellants cit

e Tate v. Allst

ate Ins. Co. , 692 So. 2 d 822 (A la. 1997) to suppo rt their po sition tha t each o f the cla ims is su bject to a separa te $100 ,000.00 limit. While Tate is instr

uctive, the

policy i n that case conta

ined different

language from the contract at issue. First, the contract in this case specifically states that “bodily injury1 The insurance policy under consideration by the Tate Court provided: The limits [$100,000.00 per person, $30 0,000.00 per occurrence] are the max imum we will pay f

or any sing

le auto acciden

t. The limit s

tated for each p

erson for bodil

y injury applies to all damag es arising fro

m bodily in

jury, sickne

ss, disease, o

r death sustained by one person in any o ne occurrence. The occurrence limit is our tota l limit of liab

ility for all le

gal damag

es for bodily

injuries sustain

ed by two or

more persons in any one occurrence. That policy further provided: Allstate will pay for all damages a person insured is legally oblig ated to pay because of bodily inj ury or propert y damage, meaning: 1. Bodily injuries, sickness, disease or death to any person, including loss of services; and 2. Damages to, or destruction of property, including loss of use. The Alabama Court construe d the policy to provide se parate covera

ge for “bodil

y injury” where the only injury was “loss o f consortium”, i.e., “loss of serv ices” was held to be a “bodily injury”. 4 sustained by

any one person includes all i njury and damage to ot

hers.” Second, t

he policy defines it per person li mit of liability

to include “all damages claimed by others, such as . . . loss of services . . . r esulting from bodi

ly inj ury sustai

ned by the inj ured person .” Thu s, Tate is disti nguishable. 1 The Trial Cou rt properly granted summary judgm ent. The cost of the appeal i s assessed to appel lants, and t

he cause remanded.

__________________________ Herschel P. Franks, J. CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.