                  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 CONCURRENCE
                                    _______________________

JUDGE HOLLY M. KIRBY, CONCURRING SEPARATELY:

       I concur in the result reached by the majority in this case. I must, however, disagree with the
majority’s conclusion that the contract at issue is not ambiguous.

       Here, the declarations page of the insurance contract states that the coverage limits are
“$100,000 ea pers/$300,000 ea occ.” Without more, for an accident resulting in bodily injury to two
persons, this provision indicates that the coverage limit for each person would be $100,000.

        Section 4(a)(1) states: “The limit stated for ‘each person’ is the amount of coverage and the
most we will pay for all compensatory damages because of or arising out of bodily injury to one
person in any one occurrence.” The Fishers assert that this language refers to an occurrence resulting
in bodily injury to one person. AOI claims that it refers to any occurrence, regardless of the number
of persons who suffer bodily injury.

         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 assert that
this is the only language in the policy that specifically addresses an occurrence that results in bodily
injury to two persons, indicating that a total of $300,000 could be paid in such an instance. Section
4(a)(1) is not inconsistent, they assert, because 4(a)(1) addresses separate situations in which an
occurrence results in bodily injury to one person. AOI argues that, despite the “two or more”
language in Section 4(a)(2), it should be interpreted as limiting coverage to $100,000 per person
regardless of the number of persons injured. The Fishers argue persuasively that AOI’s
interpretation in effect re-writes Section 4(a)(2) to say “three or more” instead of “two or more”
persons.
         The majority indicates that the Fishers’ interpretation of Section 4(a)(2) is “unreasonable”
only because it ignores the phrase “subject to 4.a.(1).” I must respectfully disagree. The Fishers do
not ignore this language; rather, they interpret Section 4(a)(1) differently from AOI’s interpretation.
The Fishers’ interpretation of Section 4(a)(1) is neither implausible nor unreasonable, and it should
be taken into account.1

       Looking at all of these provisions in toto, I cannot conclude, as the majority does, that the
contract is “unambiguous.” Looking at the four corners of the document, I would find that
“reasonably intelligent persons could come to different conclusions” as to its meaning, and this is
ambiguous. 77 C.J.S. Contracts § 304 (citations omitted).

       When a contract is deemed ambiguous, it will normally be construed against the drafter of
the contract, who is responsible for creating the ambiguity. Parks v. Richardson, 567 S.W.2d 465,
468 (Tenn. Ct. App. 1977); Hanover Ins. Co. v. Haney, 221 Tenn. 148, 425 S.W.2d 590, 592-93
(Tenn. 1968). This rule, however, is not applied mechanically:

         This rule is a valid and useful tool for construing ambiguous contracts, and it has
         frequently been used by the court as the key to resolving the question of which of two
         possible constructions of a contract to favor. But it does not trump other rules of
         construction in a situations.
                                                  ***
         [T]he rule of resolving contract ambiguities against the drafting party only applies if
         the interpretation urged by the non-drafting party is reasonable and practical. . . .
         Where the language of an agreement is contradictory,. . . or where its meaning is. .
         . susceptible of two constructions, one of which makes it fair, customary, and such
         as prudent men would naturally execute, while the other makes it inequitable,
         unusual or such as reasonable men would not be likely to enter into, the interpretation
         which makes a rational and probable agreement must be preferred.

Stephenson v. The Third Co., 2004 WL 383317, at *6 (Tenn. Ct. App. Feb. 27, 2004). Here, as
noted by the majority, the interpretation advocated by the Fishers produces an “anomalous” result,
with each person recovering up to $150,000 only if the occurrence results in injury to two persons.
As in Stephenson, this is an “unusual” result. Id. AOI’s interpretation, on the other hand, appears
to be “fair [and] customary.” Id. Thus, despite the ambiguity in the insurance contract, I would
adopt AOI’s interpretation and reach the same result as the majority in this case.




         1
            As noted by the majority, the fact that the Fishers’ interpretation produces an unusual result does not mean
that their interpretation is unreasonable and that the contract is unambiguous.

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Therefore, I concur for the reasons set forth in this Separate Concurrence.




                                      __________________________________________
                                      HOLLY M. KIRBY, JUDGE




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