FILED

April 4, 1996

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION

AT KNOXVILLE

_______________________________________________________

)

ATLANTA CASUALTY COMPANY, ) Claiborne County Circuit Court

) No. 7335

 Plaintiff/Appellant. )

)

VS. ) C. A. No. 03A01-9507-CV-00232

)

MARGIE ETTA FUSON, DAMON )

LEE FUSON, and SHANNON NICOLE )

FUSON, )

)

 Defendants/Appellees. )

)

______________________________________________________________________________

From the Circuit Court of Claiborne County at Tazewell.

Honorable Conrad E. Troutman, Jr., Judge 

 Steven L. Hurdle, 

Jeffrey Ingran,

ARNETT, DRAPER & HAGOOD, Knoxville, Tennessee

Attorneys for Plaintiff/Appellant.

Dennis M. Robertson, Tazewell, Tennessee

Attorney for Defendants/Appellees.

OPINION FILED:

AFFIRMED AND DISMISSED

FARMER, J.

CRAWFORD, P.J., W.S. : (Concurs)

HIGHERS, J. : (Concurs)
1At the time of the filing of the complaint, Margie Fuson was a resident of Kentucky.

2

This appeal stems from a declaratory judgment action filed by Appellant, Atlanta

Casualty Company (Atlanta Casualty), seeking a determination of whether an automobile insurance

policy issued by Atlanta Casualty to Damon P. Fuson, now deceased, affords uninsured motorist

coverage to the appellees, Margie Etta Fuson, surviving spouse of the deceased, and their two minor

children, Damon Lee and Shannon Nicole Fuson (hereinafter “the Fusons”). The trial court

entertained motions for summary judgment filed by both parties. The trial court denied Appellant’s

motion, but entered summary judgment in favor of the appellees, finding that the insurance policy

in question affords them coverage. For reasons hereinafter detailed, we affirm the judgment of the

trial court.

The facts of this case are undisputed. On September 17, 1992, the decedent was a

passenger in an automobile driven by Michael D. Shockey and owned by Josie Lee, neither of whom

carried liability insurance at the time. The automobile was involved in a single car accident in Ohio,

resulting in the death of Mr. Fuson. None of the appellees were involved in the accident. On the

date of the accident, Mr. Fuson was insured under an automobile insurance policy issued him by

Appellant in Tennessee, while he and the Fusons were residents of Claiborne County, Tennessee.1

The insurance policy identifies the deceased as the named insured. The policy period

was from April 27, 1992 to October 27, 1992. Its limits of liability under the uninsured motorist

provisions for “bodily injury” are “$25,000 per person $50,000 per acc.” The policy defines “bodily

injury” as “bodily harm, sickness or disease, including death that results.” 

In accordance with the policy, Atlanta Casualty tendered $25,000 to the deceased’s

estate. This declaratory judgment action was filed when a dispute arose between the parties as to

whether Atlanta Casualty is further obligated under the uninsured motorist provisions to make

additional payments to the Fusons beyond the $25,000 per person limit. 

In ruling, the trial court found:
2The appellees’ motion for summary judgment specifically requested the court to declare

that Atlanta Casualty was obligated to pay them an additional $25,000 under the policy.

3

[T]hat [Appellees’] Motion for Summary Judgment, to the extent that

it requests the entry of an Order denying plaintiff the declaratory

judgment sought, is well founded and is therefore granted. Further,

the court finds that the uninsured motorist provisions of the insurance

policy issued by Atlanta Casualty to Damon P. Fuson provides

coverage to the [appellees] for the accident occurring in Ohio which

is the subject of this cause. To the extent that the [appellees], through

their Motion for Summary Judgment, seek additional relief, their

Motion is denied.2 

The issue on appeal, as stated by Appellant, is as follows:

Does Atlanta Casualty, which issued a split-limits uninsured

motorist policy to Damon P. Fuson, and which paid the per person

limits of that policy to his estate due to a wreck with an uninsured

motorist, owe any additional contractual duties to his family, none of

whom were: 1) named insureds; 2) injured in the wreck; 3) occupants

of the vehicle in the wreck; or 4) owners of an insured vehicle, given

that T.C.A. § 56-7-1201(b) provides that only injured occupants of a

vehicle can recover and then only from a policy covering a vehicle

they own?

The parties agree that under our supreme court’s decision in Hataway v. McKinley,

830 S.W.2d 53 (Tenn. 1992), Ohio law would most likely govern the tortious aspects of this case.

Under Ohio law, each survivor (surviving spouse, children and parents of the deceased) is statutorily

afforded a separate claim to recover damages that they have “rebuttably presumed” to have suffered

by reason of the wrongful death. R.C. 2125.02(A)(1); Wood v. Shepard, 526 N.E.2d 1089 (Ohio

1988). The parties, likewise, agree, and correctly so, that for purposes of construing and interpreting

the insurance contract at issue here, Tennessee law shall govern. See Ohio Casualty Ins. Co. v.

Travelers Indemnity Co., 493 S.W.2d 465 (Tenn. 1973). The well settled rule in this jurisdiction

is that insurance contracts are to be construed under the same rules of construction and enforcement

applicable to contracts generally. Allstate Ins. Co. v. Wilson, 856 S.W.2d 706, 708 (Tenn. App.

1992). Thus, it is the duty of this Court to enforce the insurance policy as written. See Spears v.

Commercial Ins. Co., 866 S.W.2d 544, 548 (Tenn. App. 1993). The policy language should be

construed in light of reason and given its plain, ordinary meaning. Demontbreun v. CNA Ins.

Companies, 822 S.W.2d 619, 621 (Tenn. App. 1991). It should not be given a forced construction

that renders it ineffective or extends its coverage beyond its intended scope. Demontbreun, 822
3The policy defines “You” as the “ ‘named insured’ as shown in the Declarations; and

[t]he spouse if a resident of the same household.” 

4

S.W.2d at 621. Any ambiguities are to be resolved against the insurer, who drafted the policy. See

e.g., Palmer v. State Farm, 614 S.W.2d 788, 789 (Tenn. 1981). Where there are no ambiguities,

we must take the ordinary meaning of the words used, and favor neither party. We cannot create an

ambiguity where none exists. Omaha Property & Casualty Ins. Co. v. Johnson, 866 S.W.2d 539,

541 (Tenn. App. 1993).

The policy at issue contains the following endorsement (Form T-05) reading, as here

pertinent:

UNINSURED MOTORISTS COVERAGE-TENNESSEE

Part C is replaced by the following:

INSURING AGREEMENT

A. We will pay damages which an “insured’ is legally entitled

to recover from the owner or operator of an “uninsured motor

vehicle” because of:

1. “Bodily injury” sustained by an “insured” and

caused by an accident;

. . . . 

The owner’s or operator’s liability for these damages must

arise out of the ownership, maintenance or use of the “uninsured

motor vehicle.” . . . .

B. “Insured” as used in this endorsement means:

1. You3 or any “family member.”

2. Any other person “occupying” “your covered

auto.”

3. Any person for damages that person is entitled to

recover because of “bodily injury” to which this

coverage applies sustained by an [sic] person

described in 1. or 2. above. 

Applying the foregoing rules of construction, we find the policy unambiguous as

written. It clearly includes as “insureds” the appellees, who were the named insured’s spouse and/or

his “family member[s]” at the time of the accident. As insureds, they are entitled to those damages
5

which they are legally entitled to recover from Shockey and/or Lee (within policy limits, of course)

for the bodily injuries sustained by the deceased, an “insured,” in accordance with Part A1. As

heretofore stated, Ohio law grants the appellees separate and distinct claims from those of the estate

against the uninsured motorists. Thus, if either or both be proven liable, the appellees would be

“legally entitled to recover” their own separate damages as a result of the accident. Part B3 also

provides coverage to the appellees for those damages they are “entitled to recover” because of bodily

injuries sustained by, in this case, Mr. Fuson.

Atlanta Casualty argues that T.C.A. § 56-7-1201(b) effectively eliminates any

coverage for the appellees under the present circumstances. The statute, as it read in 1992, provides:

56-7-1201. Requirements and types of coverage --

Presumptions. --

. . . .

. . . . With respect to bodily injury to an insured while

occupying an automobile not owned by the injured party, the

following priorities of recovery under uninsured motorist coverage

shall apply:

(1) The uninsured motorist coverage on the vehicle in which

the injured party was an occupant shall be the primary uninsured

motorist coverage;

(2) Should that primary uninsured motorist coverage be

exhausted due to the extent of compensatory damages, then the

injured occupant may recover as excess from the insurance on the

vehicle owned by the insured that provides the highest limits of

uninsured motorist coverage. In no instance shall more than one (1)

coverage from more than one (1) uninsured motorist policy be

available as excess over and above the primary coverage available to

the injured occupant.

Appellant asserts that because none of the appellees were “injured occupant[s]” or

owned a vehicle insured by Atlanta Casualty, they are statutorily denied coverage. We find this

statute inapplicable to the case at bar because it clearly addresses “priorities of recovery.” Such is

not the issue currently before us.

We conclude that Appellees are afforded coverage under the policy as to the accident

in question as a matter of law. We, therefore, affirm the summary judgment entered in their favor
6

by the trial court and dismiss this cause. Costs are assessed against Atlanta Casualty Company, for

which execution may issue if necessary.

__________________________________

FARMER, J.

______________________________

CRAWFORD, P.J., W.S. (Concurs)

______________________________

HIGHERS, J. (Concurs)