              IN THE COURT OF APPEALS OF TENNESSEE
                                                                 FILED
                             AT KNOXVILLE                       March 08, 1999

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt
                                                                  Clerk
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 COMPANY,                 )
                                   )
       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., and FRED     )
B. RYAN,                           )
                                   )
       Defendants,                 )
                                   )
and TENNESSEE FARMERS MUTUAL)
INSURANCE COMPANY,                 )
                                   )
       Defendant-Appellee.         )


SHELTO N B. HILLM AN, JR., GORE & HILLM AN, Bristol, for Plaintiffs-
Appellants.

STEVEN C. RO SE, WEST & RO SE, Kingsport, for Defendant-Appellee.




                               O P I N IO N

                                                 Franks, J.
               The dispo sitive issue on this appeal is w ell stated by the ap pellant:

“Does the wording of the subject policy of insurance expand ‘bodily injury to a

person ’ to inclu de deriv ative cla ims.”

               This case arises from an automobile accident that occurred on March 9,

1996. Misty Gouge, a minor, was injured in the accident, and her parents Larry and

Carol Gouge sought damages for Misty’s medical expenses, as well as derivative

claims for medical expenses and loss of services.

               Anticipating a deficit in the 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 policy limits. Tennessee Farmers Mutual

moved for partial summary judgment, claiming that the policy’s $100,000.00 “per

person” limit applied to all of the Gouge’s claims. The Trial Judge granted 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 following relevant sections:

               Bodily injury means injury to a person and the sickness, disease or
               death of that person resulting from that injury. Bodily injury sustained
               by any one person includes all injury and damages to others, including
               but not limited to, the loss of services and loss of consortium resulting
               from that b odily injury.

               Limited of Liab ility . . . The maximum limit for “each person” includes
               damages claimed by the injured person for medical expenses, loss of
               services and loss of consortium. The maximum limit of liability for
               “each person” also includes all damages claimed by others, such as
               damages for medical expenses, loss of services and loss of consortium,
               resulting from the bodily injury sustained by the injured person.

               The parties dispute the m eaning of the forego ing langua ge. App ellants

content that they each, in addition to their daughter, are entitled 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 appellants’ claims.

                                              2
               “Contracts of insurance, like other contracts, 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, ordinary, and popular sense.” Guardian Life Ins. Co. Of America v.

Richardson, 129 S.W.2d 1107, 1115 (Tenn. App. 1939). Thus, where there is no

ambiguity, “it is the duty of the Court to apply to the wo rds used their ordinary

meaning and neither party is to be favored in their construction.” 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 uncertain meaning and may fairly be understood in 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 the language used to find

ambiguity where none exists.” Id. at 191.

               In this case, the contract is not ambiguous. It states that damages

“claimed by others,” including loss of services, are subject to the same limitation as

the damages “sustained by the injured person.” Thus, the policy includes within 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 injuries,

they are subject to a single 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 cite Tate v. Allstate 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 instructive, the policy in that case contained different language from the

contract at issue. First, the contract in this case specifically states that “bodily injury


                                                3
sustained by any one person includes all injury and damage to others.” Second, the

policy defines it per person limit of liability to include “all damages claimed by others,

such as . . . loss of services . . . resulting from bodily injury sustained by the injured

person .” Thu s, Tate is distinguishable.1       The Trial Cou rt properly granted summary

judgm ent.

               The cost of the appeal is assessed to appellants, and the cause remanded.




                                                __________________________
                                                Herschel P. Franks, J.

CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.




   1

       The insurance policy under consideration by the Tate Court provided:

               The limits [$100,000.00 per person, $300,000.00 per occurrence] are the maximum
               we will pay for any single auto accident. The limit stated for each person for bodily
               injury applies to all damages arising from bodily injury, sickness, disease, or death
               sustained by one person in any one occurrence. The occurrence limit is our total
               limit of liability for all legal damages for bodily injuries sustained by two or more
               persons in any one occurrence.

       That policy further provided:

               Allstate will pay for all damages a person insured is legally obligated to pay because
               of bodily injury or property 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 construed the policy to provide separate coverage for “bodily
       injury” where the only injury was “loss of consortium”, i.e., “loss of services” was held to be
       a “bodily injury”.

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