# FILED Ap ril 4, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT KNOXV

ILLE

_______________________________________________________ ) ATLANTA CASUALTY COMPANY, ) Claiborne County Circuit Court ) No. 7335 Plaintiff

/Appella nt. ) ) VS. ) C. A. No. 03A01-9507-CV-00232 ) MARGIE

ETTA FUSON , DAMON ) LEE FUSON,

and SHANNON

NICOLE ) FUSON , ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ From the Circuit Cou

rt of Claib orne Coun

ty a t Tazewell. Honorable Conrad E. Troutman, Jr., Judge

Steven L. H

urdle , Jeffrey Ing ran, ARNETT, DRAPER & HAGOOD, Knoxville, Tennessee Attorney s for Plain

tiff/App ellant.

Dennis M. Robertson , Tazewell, Tennessee Attorney for Def endants/ Appellee s.

OPINI ON FIL

ED: AFFI RMED AND

DISMISSED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) HIGHERS, J. : (Concur s)1 At th e t im e o f t he fi li ng of th e c om pl ai nt , M ar gi e F us on wa s a re si de nt of Ke nt uc ky. 2 This appeal stems from a declaratory judgment actionfiled by A ppellant , Atlanta Casualty Comp any (Atlan ta Cas ualty), s eekin g a determination of whether an automobile insurance policy issued by

Atlanta Casualty

to Damon P. Fuson, no w decea sed, aff ords unins ured moto

rist
covera ge to the app ellees, Margie Etta Fuson, surviving spouse of the deceased, a nd their two minor children, Damon Lee and Shannon Nicole Fus on (here inafter “the Fusons”). The trial court entertained

motions for

summary judgme

nt filed by both parties. The tria l court denied Appellant’s motion, but entered summary judgment

in favor of the appellees, finding that the insuranc e policy in question affords them coverage. For reasons hereinafter de tailed, we affirm the judgment of the trial cou rt.

The facts of this case are undisputed. On Sep tember 17 , 1992, the decede nt was a passenger in an automobile driven by Micha el D. Shockey

and owned by Josie L

ee, neither of whom carried liability insurance at the time. The automobile

was involv ed in

a single car accident in Ohio, resulting in the death of Mr. Fuson. None of the appellees we re invol ved inthe accident. On the date of the acci dent, Mr. Fuson was insured under an automobile insurance policy issued him by Appellant in Te nn es se e, wh il e h e a nd th e F us on s w er e r es id en ts of Cl ai bo rn e C ou nt y, Tennessee. 1

The insurance policy

identifies the deceased as the named insured. The policy pe

riod
was from April 27, 1992 to October 27, 1992. Its limits of liability unde r the unins ured moto rist provisions for

“bodily injury

” are“$25,000

per per son $50,00 0 per ac c.” The policy defines“bodily injury” as “bodily

harm, sickness or disease, including death that results.”

In ac co rd an ce wi th th e p ol ic y, Atlanta Casualty tender ed $25,000 to the deceased’s estate. This declaratory

judgment action was filed when a dispute arose be twe en the par ties as to whether Atlanta C asualty is further oblig ated under the uninsured motorist provisions to make additional payments to the Fusons bey ond the $25,000 per person limit.
In ruling, the trial cour

t found:2 The appellees’ motion for summary judgment specifically

requested the court to declare th at At la nt a C as ua lt y wa s o bl ig at ed to pa y th em an ad di ti on al $2 5, 00 0 u nd er th e p ol ic y. 3 [T]hat [Appellees’] Motion for Summary Judgment, to the extentthat it reques ts the entry of an O rder deny ing plaintiff the declaratory judgment sought, is well founded and is therefore granted. Fur ther, the court finds that the uninsured motorist provisions of the insurance policy issued by Atlanta C a sualty to Damon P. Fuson provides covera ge to the [appellees] for the accident occurring in Ohio which is the subject

of this cause. To the exte nt th at the [app ellee s], t hrough their Motion for Summary Judgmen t, seekadditiona

l relief , their Motion is denied. 2
The issue on appea l, as stated by

Appellan t, is as follows: Does Atlanta Ca sualty , which iss ued a split-limits uninsured motorist policy to Damon P . F uson, and which paid the per person limits of that policy to his estate due to a w reck with an u nins ured motorist, owe any

additional contractual duties to his family, none of whomwere: 1)named ins ureds; 2) injuredin the wreck; 3) oc cupants of the vehicle in the wreck; or 4) owners of an insured vehicle, given that T.C.A. § 56-7-12 01(b) pr ovides tha

t only injured occupants of a vehicle can recover and then o n ly f rom a policy c overing

a vehicl e 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 g overn the tortious aspects of this case. Under Ohio law, each survivor (surviving spouse, children and pa rents of the deceased) is statutor ily afforded a separate claim to recover da mages that they

have “r ebuttabl y presumed” to have suffered by reason o f the wro ngful de ath. R. C. 2125 .02(A)( 1); Wood v. She pard , 526 N.E. 2d 1089 (Ohio 1988). The parties, likewise, agree, a nd correctly

so, that for purposes of construing and interpreting the insur ance contract at issue here, Tenne ssee law shall govern. See Ohio Ca sualty Ins. Co . v . Travele rs 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 applica ble to contra

cts generall y. All

state Ins. Co. v. Wilson , 856 S.W.2d 706, 708 (Tenn. App. 1992). Thus, it is th

e duty of this Co urt to enfor ce the insurance policy as written. See Spears v. Commercial Ins. Co. , 866 S.W.2d 544, 548 (Tenn. App. 1993). The policy lang uage should be construedin light of reason and given its plain, ordinary meaning. Demontbreun v. CN A 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 coverag e beyond its intende d scope. Demontbreun , 8223 The policy def ines “You” as the “ ‘named insured’ as shown in the D eclarations; and [t]he spouse if a resident of the same household.” 4 S.W.2d at 621. Any ambig uities are to be re so lv ed ag ai ns t t he in su re r, wh o d ra ft ed th e p ol ic y. See e.g., Palmer v. Sta

te Farm , 614 S.W.2d 788, 7 89 (Tenn . 1981). Where the re are no ambig

uities,
we must take the ordinary me aning 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 endor semen t (Form T-05) readin g, as here pertine nt:

UNINSURED MOTORISTS C OVERAGE- TENNESSEE Part C is rep laced b y the foll owing: INSURING AGREEMENT A. We will pay

damage s which a

n “insured’ is legally

entitled to recover from the owner or oper ator of an “uninsured motor vehicle” because of: 1. “Bodily injury

” s ustaine d by an “insured” and caused by a

n accide nt;

. . . . The owner’ s or oper

ator’s li ability

for thes e damag es must arise out of the ownership, maint enance or use of the “uninsured motor vehicle.” . . . . B. “I nsured”as used in

this endor sement me ans: 1. You 3 or any “f

amily member.” 2
. Any other person “occupying ” “your c over e d auto.” 3. An y perso n for damages th at perso n is entitled to recover because of “bodil

y in jury ” to which t his covera ge applies sustained by an [ s ic] person described in 1. or 2. above.
Apply ing the foregoing rules of construction, we find the policy unambig uous 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 ac cident. A s insured s, they are ent itled to tho se damages5

which they are

legally entitled to recover from Shockey and/or Lee (within policy limits, of course) forthe bo dily

injuries s ustained

by t he dece ased, an

“insure d,” in ac cordanc e with Par t A 1. A s heretoforestated, Ohio law grants the appellees separate and distinct claims from those of t he estat e agains tthe uninsu

red motor ists. Thus, if

either or both be proven liable, the appellees would be “lega lly entitled t o recove r” their own sepa

rate da mages a s a result o f th e accid ent. Part B3 also provides coverage to the appellees f or those damages they are

“entitled to recover” because of bodily injuries sustained by, in this case, Mr. F uson.

Atlanta Casualty argue s t hat T.C.A. § 56-7-1201(b) effectively eliminates any
covera ge for the appellees under the present circumstance s. The statute, as it rea d in 1992, p

rovides:

56-7-1201. Requ ireme nts and types of coverage -- Presumptions. --

. . . .

. . . . With respect to bodily inj ury to an insured w hile occupying an automobile not owned by the injured party, the following prior itie s of rec overy und er uni nsure d mot orist covera ge sh al l a pp ly: (1) The uninsuredmotorist c overag e on the ve hicle in which the injured party wa s an occupant shal l be the primary uninsured motorist coverage; (2) Should that primary uninsured motorist covera ge be exhausted due to the extent of compensatory da mages, then the injur edoccupant may

recover as excess from the insurance on t h e vehicle owned by the insured that provides the highe st limi ts of uninsuredmotorist c overag e. I n no instance shall

more than one (1) covera ge from mo r e than one (1) uninsured motorist policy be availab le as excess over and above the pr imary cov erage availab le to the injured occupa

nt.
Appellant asserts that because none of the a ppell ees were “injured occupant[s]” or owneda vehicle insured by Atlan ta Casual ty, they are sta tutorily denied c overag e. We find this statute in applica

ble to the case at bar because it clearly

addresses “priorities of recovery .” Such is not the issue curre

ntly before us.

We concl ude th at App ellee s are afforded covera ge under the policy a s to the accident in question as a matter of law. We, therefore, af firm the summary judgment entered in their favor6

by the trial court

and dismissthis caus e. Costs ar e assess ed aga

inst Atlan ta Casual ty Company, for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

__________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)