                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                     April 21, 2009 Session

             JULIA FISHER, ET AL. v. ASHLEY REVELL, ET AL.
                    Direct Appeal from the Circuit Court for Obion County
                          No. 07-CV-140     William B. Acree, Judge


                  No. W2008-02546-COA-R3-CV - Filed September 30, 2009


                             SEPARATE CONCURRING OPINION

I concur in the opinion of Judge Stafford and write separately only to emphasize certain language
in the policy.

Section 4.a.(1) states: “The limit stated for ‘each person’ is the amount of coverage and the most we
will pay because of or arising out of bodily injury to one person in any one occurrence.” This
provision sets forth the limit for “each person” who suffers bodily injury in an occurrence. It clearly
is not restricted to an occurrence involving only one person, but by its terms it applies to each person
injured in an occurrence.

Section 4.a.(2) states: “The limit stated for ‘each occurrence’ is the total amount of coverage and the
most we will pay, subject to 4.a.(1) above, for all compensatory damages because of or arising out
of bodily injury of two or more persons in any one occurrence.” The Fishers claim that the policy
is ambiguous based on their contention that Section 4.a.(1) applies to occurrences that involve only
one person, while Section 4.a.(2) applies to occurrences involving multiple persons. Judge Kirby
describes this interpretation as “neither implausible nor unreasonable.” I respectfully disagree and
find this construction both strained and unreasonable. Section 4.a.(1) addresses the maximum the
insurer will pay based on injuries “to one person in any occurrence,” not when just one person is
injured. If Sections (1) and (2) address different situations, then the “subject to” phrase in Section
(2) does not make sense.

I concur with Judge Stafford’s finding that the policy is not ambiguous because it provides that the
$300,000 limit for each occurrence is the maximum the insurer will pay “subject to 4.a.(1) above”
(emphasis added). If this “subject to” phrase were not included, the policy would be ambiguous, but
Section 4.a.(1) clearly provides that the insurer will pay only $100,000 for each person in any
occurrence.



                                                       ALAN E. HIGHERS P.J., W.S.
