                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    July 11, 2001 Session


      LINDA GREEN, M.D., ET AL. v. UNITED STATES AUTOMOBILE
                       ASSOCIATION, ET AL.

                      Appeal from the Chancery Court for Knox County
                        No. 146816-1    John F. Weaver, Chancellor
                                 FILED AUGUST 16, 2001

                                No. E2000-02713-COA-R3-CV


Linda Green, M.D., and Steve Ferguson, M.D. (“Plaintiffs”), who are married, filed a Complaint for
Declaratory Judgment (“Complaint”) against their automobile insurance carrier, United States
Automobile Association, or USAA, regarding a dispute over the terms of their insurance policy
(“Policy”). Plaintiff Green claimed coverage under their Policy’s uninsured/underinsured motorist
liability section for her physical injuries, medical expenses, and loss of income resulting from an
automobile accident. Plaintiff Ferguson claimed coverage for loss of consortium. Defendant
contends that the Policy limits Plaintiff Ferguson’s loss of consortium claim to the $300,000 each
person coverage already extended to Plaintiff Green. After Plaintiffs filed suit disputing this
interpretation of the Policy, Defendant filed a Motion for Summary Judgment which was granted
by the Trial Court. Plaintiffs appeal. We affirm.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.

Celeste H. Herbert and W. Tyler Chastain, Knoxville, Tennessee, for the Appellants, Linda Green,
M.D., and Steve Ferguson, M.D.

James E. Wagner, Knoxville, Tennessee, for the Appellee, United Services Automobile Association.



                                           OPINION

                                          Background
               In April 1999, Plaintiffs Linda Green and Steve Ferguson and their two minor
children were involved in an automobile accident with another vehicle. As a result of this accident,
Plaintiff Green suffered serious physical injuries. Plaintiffs’ automobile insurance policy was with
the Defendant, United States Automobile Association. The driver of the other vehicle was insured
by Farmers Insurance Group.

               Plaintiffs’ Policy with Defendant provides, in pertinent part, as follows:

                                       DEFINITIONS . . .

               E. Bodily Injury (referred to as BI) means bodily harm, sickness, or
               disease, including death.

                                           *******

                  [PART C. UNINSURED MOTORISTS COVERAGE] . . .

               INSURING AGREEMENT
               We will pay compensatory damages which a covered person is
               legally entitled to recover from the owner or operator of an
               uninsured motor vehicle because of:

                       1.     BI sustained by a covered person and caused
                              by an accident . . . .

               LIMIT OF LIABILITY
               a. For BI sustained by any one person in any one accident, our
               maximum limit of liability for all resulting damages, including, but
               not limited to, all direct, derivative or consequential damages
               recoverable by any persons, is the limit of BI liability shown in the
               Declarations for “each person” for UM Coverage. Subject to this
               limit for “each person”, our maximum limit of liability for all
               damages for BI resulting from any one accident is the limit of BI
               liability shown in the Declarations for “each accident” for UM
               Coverage. The limit of PD liability shown in the Declarations for
               “each accident” for UM Coverage is our maximum limit of liability
               for all PD resulting from any one accident. This is the most we will
               pay regardless of the number of covered persons, claims made,
               vehicles or premiums shown in the Declarations or vehicles involved
               in the accident.

(emphasis in original). The Policy’s Declarations showed that Plaintiffs had uninsured motorist
coverage limits for bodily injury claims of $300,000 for each person and $500,000 for each accident.

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                Plaintiffs averred in their Complaint that Farmers Insurance paid Plaintiff Green the
full “per person” limits under its liability coverage in the amount of $100,000. Plaintiffs claimed
that because their damages exceeded Farmers’ limits, they were entitled to uninsured/underinsured
motorist (“UM”) coverage under their Policy with Defendant. Plaintiffs’ coverage under the Policy
for Plaintiff Green is not in dispute in this appeal.

                Defendant, however, refused Plaintiff Ferguson’s attempt to make a separate claim
for loss of consortium under the Policy’s UM coverage. Defendant tendered one “each person”
policy limit of $300,000 for both Plaintiffs’ claims. In short, Plaintiffs claim they have coverage
under their Policy for Plaintiff Green’s injuries up to $300,000 and for Plaintiff Ferguson’s loss of
consortium claim up to a separate $300,000. Defendant argues that Plaintiff Ferguson’s consortium
claim is limited to the same coverage limitation for the bodily injuries suffered by Plaintiff Green,
resulting in a cap of $300,000 of coverage for both Plaintiffs’ claims.

                Thereafter, Plaintiffs filed a Complaint for Declaratory Judgment under Tenn. Code
Ann. § 29-14-101, et seq., against Defendant, alleging a dispute over the Policy’s language regarding
Plaintiff Ferguson’s loss of consortium claim. Defendant filed a Motion for Partial Dismissal and/or
Motion for Summary Judgment (“Motion for Summary Judgment”). As grounds for its Motion,
Defendant contended that under the Policy language, Plaintiff Ferguson’s loss of consortium claim
was a “derivative claim and subject to the same ‘each person’ limit of the uninsured motorist
coverage” as Plaintiff Green, a cap of $300.000. In response, Plaintiffs argued that summary
judgment was not appropriate because the Policy is ambiguous with respect to its treatment of loss
of consortium claims, and, therefore, Plaintiff Ferguson’s loss of consortium claim was a separate
claim under the Policy. The Trial Court granted Defendant’s Motion for Summary Judgment, and
made a Tenn. R. Civ. P. 54.02 determination that the Order was final as to the matters addressed in
the Order and there was no just reason for delay. Plaintiffs appeal. We affirm.

                                             Discussion

                 On appeal and although not stated exactly as such, Plaintiffs contend that the Trial
Court erred in granting summary judgment to Defendant for the following reasons: 1) since the
Policy does not specifically exclude or include consortium claims from its definition of Bodily
Injury, it is ambiguous; 2) Tennessee courts have treated loss of consortium claims both as derivative
and separate claims; and 3) Plaintiff Ferguson’s claim was, therefore, a separate claim.

              Our Supreme Court outlined the standard of review of a motion for summary
judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn. 2000):

               The standards governing an appellate court's review of a motion for summary
               judgment are well settled. Since our inquiry involves purely a question of
               law, no presumption of correctness attaches to the lower court's judgment,
               and our task is confined to reviewing the record to determine whether the

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              requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown,
              955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South,
              816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04
              provides that summary judgment is appropriate where: (1) there is no genuine
              issue with regard to the material facts relevant to the claim or defense
              contained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993);
              and (2) the moving party is entitled to a judgment as a matter of law on the
              undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555,
              559 (Tenn.1993). The moving party has the burden of proving that its motion
              satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d
              523, 524 (Tenn.1991). When the party seeking summary judgment makes a
              properly supported motion, the burden shifts to the nonmoving party to set
              forth specific facts establishing the existence of disputed, material facts
              which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at
              215.

              To properly support its motion, the moving party must either affirmatively
              negate an essential element of the non-moving party's claim or conclusively
              establish an affirmative defense. See McCarley v. West Quality Food Serv.,
              960 S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426
              (Tenn.1997). If the moving party fails to negate a claimed basis for the suit,
              the non-moving party's burden to produce evidence establishing the existence
              of a genuine issue for trial is not triggered and the motion for summary
              judgment must fail. See McCarley v. West Quality Food Serv., 960 S.W.2d
              at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving party
              successfully negates a claimed basis for the action, the non-moving party may
              not simply rest upon the pleadings, but must offer proof to establish the
              existence of the essential elements of the claim.

               The standards governing the assessment of evidence in the summary
               judgment context are also well established. Courts must view the evidence
               in the light most favorable to the nonmoving party and must also draw all
               reasonable inferences in the nonmoving party's favor. See Robinson v. Omer,
               952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant
               a summary judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one conclusion. See
               McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900
               S.W.2d 23, 26 (Tenn.1995).

Staples, 15 S.W.3d at 88-89.

            The record shows that the material facts of this case are undisputed. In addition, our
Supreme Court recognized that “issues relating to the scope of [insurance] coverage . . . present


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questions of law.” Standard Fire Ins. v. Chester O’Donley & Assoc., Inc., 972 S.W.2d 1, 6 (Tenn.
Ct. App. 1998). Accordingly, our review concerns whether Defendant is entitled to judgment as a
matter of law. Id.; Tenn. R. Civ. P. 56.04. Therefore, we will conduct a de novo review of the Trial
Court’s conclusions of law with no presumption of correctness of the Trial Court’s decision.
Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

                “In general, courts should construe insurance contracts in the same manner as any
other contract.” American Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d 811, 814 (Tenn. 2000).
In interpreting the Policy, this Court’s task is to determine the intention of the parties, and view the
“[t]he language of the policy . . . in its plain, ordinary and popular sense.” Id.; Guiliano v. Cleo, Inc.,
995 S.W.2d 88, 95 (Tenn. 1999). Accordingly, this Court has held:

                [an insurance policy] should not be given a forced, unnatural or
                unreasonable construction which would extend or restrict the policy
                beyond what is fairly within its terms, or which would lead to an
                absurd conclusion or render the policy nonsensical and ineffective.

Dixon v. Gunter, 636 S.W.2d 437, 441 (Tenn. Ct. App. 1982) (citing 44 C.J.S. Insurance § 296); see
also Demontbreun v. CNA Ins. Co., 822 S.W.2d 619, 621 (Tenn. Ct. App. 1991) (holding that an
insurance policy should not be construed to extend “coverage beyond its intended scope”). This
Court has a “duty to enforce contracts according to their plain terms[,]” and we are “precluded from
creating a new contract for the parties.” Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc.,
521 S.W.2d 578, 580 (Tenn. 1975).

                An insurance policy’s language is ambiguous if it “is susceptible of more than one
reasonable interpretation . . . .” American Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d at 815.
The courts, however, should “avoid strained constructions that create ambiguities where none exist.”
Marshall v. Jackson & Jones Oils, Inc., 20 S.W.3d 678, 682 (Tenn. Ct. App. 1999). Moreover, “[a]ll
provisions in the contract should be construed in harmony with each other, if possible, to promote
consistency and to avoid repugnancy between the various provisions of a single contract.” Guiliano
v. Cleo, Inc., 995 S.W. 2d at 95.

                A loss of consortium claim is “‘a derivative claim in that the physical injuries or
incapacities of one’s spouse give rise to and establish the claim.’” Tuggle v. AllRight Parking Sys.,
Inc., 922 S.W.2d 105, 108 (Tenn. 1996) (quoting Jackson v. Miller, 776 S.W.2d 115, 117 (Tenn. Ct.
App. 1989)). However, a person’s “right to recover for loss of consortium is a right independent of
the spouse’s right to recover for the injuries themselves.” Swafford v. City of Chattanooga, 743
S.W.2d 174, 178 (Tenn. Ct. App. 1987); see also Tenn. Code Ann. § 25-1-106 (providing that
“[t]here shall exist in cases where such damages are proved by a spouse, a right to recover for loss
of consortium”).

                The Trial Court, in granting Defendant’s Motion for Summary Judgment, indicated
in its Order that it was relying upon a decision of this Court, Carter v. USAA Prop. & Cas. Ins., No.

                                                   -5-
03A01-9810-CV-00327, 1999 WL 652423 (Tenn. Ct. App. Aug. 24, 1999). USAA was the
insurance carrier and defendant both in Carter and in this case. The insurance policy in Carter
contained the identical language found in the Policy in this case. Id., at *2. The issue in Carter was
the same as in this case, that is, whether a loss of consortium claim is subject to the “each person”
limit of liability for Bodily Injury to one person. Id., at * 2-3. In Carter, this Court held that a loss
of consortium claim is a derivative claim “in the sense that the injuries to his or her spouse are an
element that must be proved. . . ,” but recognized that the right to pursue this type of claim is
“independent of the spouse’s right to recover for the injuries.” Id., at *3. This Court, however, went
on to hold that the Policy’s language, when given its ordinary and natural meaning, limited the
liability of USAA to the “each person” limit for injury to one person, citing the language found in
the Policy’s UM Limits of Liability section.

                   Plaintiffs correctly point out that the Policy’s definition of Bodily Injury does not
specifically include or exclude loss of consortium claims. We disagree, however, with Plaintiffs’
argument that this creates an ambiguity in the Policy. The UM Limit of Liability section clearly
provides that the “maximum limit of liability for all resulting damages, including, but not limited
to, all direct, derivative or consequential damages recoverable by any persons, is the limit of BI
liability . . . for ‘each person’ . . . .” (emphasis added). The Policy, when “taken and understood in
its plain, ordinary and popular sense. . . ,” provides that Plaintiff Green has coverage for her Bodily
Injury and that “all resulting damages” sustained by her or “any persons”, including Plaintiff
Ferguson, are subject to the “each person” UM limit. American Justice Ins. Reciprocal v. Hutchison,
15 S.W.3d at 814. We hold that Plaintiff Ferguson’s loss of consortium claim falls squarely within
the Policy language, “resulting damages, . . . derivative or consequential damages . . .” and that to
hold otherwise would extend the Policy “beyond what is fairly within its terms . . . .” Dixon v.
Gunter, 636 S.W.2d at 441. If Plaintiffs wanted separate recovery for a loss of consortium claim,
they and Defendant were “free to contract as they [saw] fit so long as they remain[ed] within the
bounds of law, including public policy.” Setters v. Permanent Gen. Assurance Corp., 937 S.W.2d
950, 953 (Tenn. Ct. App. 1996). Accordingly, we agree with Defendant and the Trial Court that our
decision in Carter is both correct and directly on point. We affirm the Trial Court’s grant of
summary judgment to Defendant.

                                           CONCLUSION

                The judgment of the Trial Court is affirmed and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion, and for
collection of the costs below. The costs on appeal are assessed against the Appellants, Linda Green,
M.D., and Steve Ferguson, M.D., and their surety.




                                                        ___________________________________

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      D. MICHAEL SWINEY, JUDGE




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