                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 4, 2001 Session


                         MURRAY E. BODY v. JIM LAMARR


                       Appeal from the Circuit Court for Sumner County
                         No. 19707-C     Arthur E. McClellan, Judge



                      No. M2000-02111-COA-R9-CV - Filed May 4, 2001



Murray E. Body (“Plaintiff”) filed this personal injury suit against the owner of a jet ski, Jim Lamarr
(“Defendant”). Plaintiff sustained physical injuries while pulling ski ropes into his boat when
Defendant’s jet ski ran over Plaintiff’s ski ropes. Plaintiff had a boating policy (“Policy”) with
Continental Insurance Company (“Continental”) which had uninsured boater limits of $100,000.
Defendant had a liability policy with limits of $50,000. Plaintiff contends that his damages exceed
Defendant’s limits and that his Policy should be interpreted to provide coverage for accidents
involving underinsured boaters. Continental filed a Motion to Dismiss, arguing that the Policy’s
language clearly and unambiguously does not provide coverage for underinsured boaters. The Trial
Court treated Continental’s motion as a Motion for Summary Judgment and granted the motion.
Plaintiff was granted an interlocutory appeal. We affirm.


                   Tenn. R. App. P. 9 Interlocutory Appeal by Permission;
                 Judgment of the Trial Court Affirmed; and Case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J. and
DON R. ASH , SP . J., joined.

Joseph M. Dalton, Jr., and Catherine S. Hughes, Nashville, Tennessee, for the Appellant, Murray E.
Body.

Gregory W. O'Neal, Memphis, Tennessee, for the Appellee, Continental Insurance Company.



                                             OPINION
                                                 Background

                Plaintiff had a boating insurance policy with Continental which provided coverage
with a $100,000 limit per accident for accidents involving an uninsured boater. On July 4, 1998,
Plaintiff was injured when a jet ski ran over water ski ropes that Plaintiff was pulling into his boat.
Defendant owned the jet ski. At the time of the accident, Defendant had a boating liability policy
with limits of $50,000.

                 Plaintiff’s Policy provides, in pertinent part, as follows:

                                     Coverage G -- Uninsured Boater

                 Coverage Provided

                 If an amount is shown for Coverage G on the Declarations Page, we
                 will pay the damages which, because of bodily injury received aboard
                 the insured boat, you are legally entitled to recover from the
                 uninsured owner or operator of another boat.1

                 "Uninsured boater" and "uninsured owner or operator" mean an
                 owner or operator of a boat other than the boat named in this policy
                 who is legally responsible for the accident, and:
                        A.      to whom no liability policy applies; or
                        B.      who cannot be identified (such as a hit-and-
                                run operator).

                                                   ******

                 Payment Reductions

                 Payment under this coverage shall be reduced by:
                       A.     all sums paid by or on behalf of those legally
                              responsible . . . .

                 Payment under this coverage to or for an insured person will reduce
                 the amount that person is entitled to recover from the Boating
                 Liability or Medical Payments coverages of this policy.

                                                 ******
                                             General Conditions



       1
           The Policy's Declarations Page showed that Plaintiff had uninsured boater coverage.

                                                       -2-
                                             ******

               Other Insurance

               If there is any other available insurance that would apply in the
               absence of this policy, this insurance shall apply as excess over the
               other insurance, but the combined amount shall not exceed the limits
               of this policy.

                Plaintiff claims that his damages exceed Defendant's policy limits and contends that
“Coverage G” of his Policy should be broadly interpreted to provide coverage for accidents involving
underinsured boaters such as Defendant. It is undisputed that the Policy, on its face, does not contain
a provision for underinsured boater coverage, as it does for uninsured boaters. Apparently working
under an underinsured motorist theory, Plaintiff obtained service on Continental. In response,
Continental filed a Motion to Dismiss which the Trial Court properly treated as a Motion for
Summary Judgment because Continental filed an affidavit in support of its motion. The Trial Court
granted Continental's motion, holding that Plaintiff’s Policy does not provide underinsured boater
coverage. Plaintiff’s Motion for Interlocutory Appeal was granted.

                                             Discussion

               Plaintiff contends that the Trial Court erred in granting Continental’s Motion to
Dismiss because the language of the Policy provides coverage not just for accidents involving an
uninsured boater but also for those involving an underinsured boater such as Defendant. Plaintiff
also contends that in light of the Tennessee Uninsured Motor Vehicle Coverage statutes, the Trial
Court’s interpretation of the Policy is in conflict with Tennessee law. Continental, of course, does
not dispute the Trial Court’s granting of its Motion and argues that the Policy language cannot
reasonably be interpreted to include coverage for an underinsured boater such as Defendant.

              The Trial Court correctly treated Continental’s Motion to Dismiss as a Motion for
Summary Judgment. See Tenn. R. Civ. P. 12.02. Our Supreme Court outlined our standard of
review of a motion for summary judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn. 2000),
as follows:

               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
               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


                                                 -3-
               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 on appeal shows that the material facts of this matter are undisputed.
Accordingly, our review concerns whether Continental is entitled to judgment as a matter of law.
See id. at 88; Tenn. R. Civ. P. 56.04.

              Since this matter involves interpretation of an insurance policy, we will conduct a
de novo review with no presumption of correctness of the Trial Court’s decision. Guiliano v. Cleo,
Inc., 995 S.W.2d 88, 95 (Tenn. 1999); American Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d


                                                -4-
811, 814 (Tenn. 2000). “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 at 814. 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.” Guiliano v. Cleo,
Inc., 995 S.W.2d at 95; American Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d at 814.
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 or ineffective.

Dixon v. Gunter, 636 S.W.2d 437, 441 (Tenn. Ct. App. 1982) (citing 4 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”).

                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.

                The Policy’s language is unambiguous as to the relevant definition of an “uninsured
boater” as it states that an uninsured boater is one “to whom no liability policy applies . . . .”
Defendant is someone to whom a liability policy does apply. Reviewing the plain, unambiguous,
natural, and unforced language of the Policy, Defendant is not an uninsured boater under the specific
language providing Plaintiff uninsured boater coverage.

                Although the Policy’s definition of uninsured boater in “Coverage G” does not
include an underinsured boater, Plaintiff contends that the Policy contains two provisions which
should be interpreted to provide coverage for underinsured boaters. Plaintiff points to part “A” of
the section entitled “Payment Reductions” found within “Coverage G – Uninsured Boater” and a
provision found within the Policy’s “General Conditions” entitled “Other Insurance.” Plaintiff
contends that subsection “A” should be interpreted to expand the definition of uninsured boater
since it describes a situation that fits squarely with an incident involving an underinsured boater.
Moreover, Plaintiff contends that this subsection, along with the Policy’s “Other Insurance”
subsection, are analogous to the Tennessee Uninsured Motor Vehicle Coverage statutes’ prohibition
against stacking coverage. See Tenn. Code Ann. § 56-7-1201(d). By analogy, Plaintiff further
contends that like the statutory definition of “uninsured motorist,” the Policy’s definition of
uninsured boater should include an underinsured boater. See Tenn. Code Ann. § 56-7-1202.
Plaintiff admits that the Tennessee Uninsured Motorist Vehicle Coverage statutes are not controlling


                                                  -5-
here. Plaintiff, however, maintains they are a helpful guide in arriving at a resolution of the issue
before us on appeal.

                With respect to the provision found within the Policy’s “General Conditions” section,
we find Plaintiff’s argument unpersuasive because specific provisions of a contract control over
general provisions. Cocke Co. Bd. of Highway Comm’rs v. Newport Utils. Bd., 690 S.W.2d 231, 237
(Tenn. 1985). The Policy’s “Coverage G – Uninsured Boater” section is the specific part of the
Policy which addresses coverage provided for uninsured boaters. Its definition of “uninsured
boater,” which is found in the subsection entitled “Coverage Provided,” does not include an
underinsured boater such as Defendant. We also note that this language under the “Other Insurance”
section relied upon by Plaintiff refers only to “other available insurance that would apply in the
absence of this policy . . . .” Defendant’s insurance does not apply only in the absence of the Policy,
but rather applies whether the Policy exists or not.

               Similarly, part “A” of the “Payment Reductions” provision found within the Policy’s
“Coverage G – Uninsured Boater” section does not extend the Policy’s definition of uninsured
boater. The first sentence of the “Payment Reductions” provision states: “Payment under this
coverage shall be reduced by . . . .” (emphasis added). The phrase “this coverage” is referencing
the coverage for “uninsured boaters” which is defined in a preceding paragraph of “Coverage G –
Uninsured Boater.” As discussed, the definition of uninsured boater is clear and unambiguous and
does not include underinsured boaters. To hold otherwise would amount to giving a “strained
construction” to the definition and would unduly extend the Policy’s coverage “beyond its intended
scope.” Marshall v. Jackson & Jones Oils, Inc., 20 S.W.3d at 682; Demontbreun v. CNA Ins. Co.,
822 S.W.2d at 621.

               In addition, we cannot locate, and Plaintiff did not cite to any authority for his
argument that the Tennessee Uninsured Motor Vehicle Coverage statutes, by analogy, support his
position. This position, although novel, is not based upon any legal authority.

                 We agree with the Trial Court’s determination that the Policy’s language does not
provide coverage for accidents involving an underinsured boater such as Defendant. The Policy,
instead, specifically and only provides uninsured boater coverage by defining an “uninsured” boater
as one “to whom no liability policy applies. . . . .” 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). The
Policy’s clear definition of “uninsured boater” does not include a boater who is underinsured but
instead states that this coverage applies to situations involving a boat owner or operator “to whom
no liability policy applies; or . . . who cannot be identified (such as a hit-and-run operator).” When
viewed in light of its “plain, ordinary and popular sense,” this definition cannot reasonably be
construed to cover situations involving a boater who is underinsured as is Defendant. American
Justice Ins. Reciprocal v. Hutchison, 15 S.W.3d at 814. If Plaintiff wanted underinsured boater
coverage, he and Continental 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


                                                 -6-
S.W.2d 950, 953 (Tenn. Ct. App. 1996). Accordingly, we hold that the Trial Court correctly held
that the unambiguous language of the Policy does not include coverage for this accident involving
an underinsured boater, the 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 Appellant, Murray E.
Body, and his surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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