       IN THE COURT OF APPEALS OF TENNESSEE
                                                                            FILED
                          AT KNOXVILLE                                     August 24, 1999

                                                                          Cecil Crowson, Jr.
                                                                           Appellate Court
                                                                                 Clerk



MARTHA CARTER AND                          ) C/A NO. 03A01-9810-CV-00327
STEV EN A . CAR TER ,                      )
                                           ) SULLIV AN CIR CUIT
       Plaintiffs-Appellants,              )
                                           ) HON. RICHARD LADD,
v.                                         ) JUDGE
                                           )
USAA PROPERTY & CASUALTY                   )
INSURANCE,                                 ) AFFIRMED
                                           ) AND
       Defendant-Appellee.                 ) REMANDED




J. WESLEY EDENS, B ristol, for Plaintiffs-Appellants.

RICHARD M. CURRIE, JR., and JOEL A. CONKIN, WILSON, WORLEY &
GAMBL E, P.C., Kingsport, for Defendant-Appellee.




                                      O P I N IO N


                                                          Franks, J.


               From an adverse ruling in the Trial Court, plaintiffs, policy holders,

have a ppeale d to this C ourt.

               The issues raised on appeal are:

               1. Are the benefits paid under Part C - - Uninsured Motorists Coverage,
               of the Automobile Insurance Policy subject to a reduction for payment
               by USAA of additional medical expense benefits under Special
               Coverages, Air Bags and Seat Belts, of the Automobile Insurance
               Policy?

               2. Is the award of $12,000.00 to Plaintiff, Steven A. Carter, for loss of
               consortium a derivative action, such as to fall under the definition of that
               term as it is used in Part C - - Uninsured Motorists Coverage, Limited
               Liab ility, A , of th e Au tomobile Ins uran ce Policy?

               Martha a nd Steven Carter, husb and and w ife, had an a utomob ile
insurance policy with U.S.A.A. Property and Casualty Insurance (USAA). Part B of

the policy provided medical payment benefits with policy limits of $10,000.00 per

person. That part also contained a provision which provided an additional $10,000.00

in med ical ben efits if th e perso n is injur ed wh ile prote cted by an air bag o r a seat b elt.

Under Part C, the uninsured motorists coverage, the policy provided coverage for

bodily injury with lim its of $100 ,000.00 pe r person an d $300,0 00.00 per a ccident.

                During th e policy term, M artha Carte r and her d aughter A mira Nico le

Carter were involved in an accident with Billy L. King, who was uninsured. Ms.

Carter was protected by an air bag, but she and her daughter both suffered injury in the

accident. The Carters brought suit against Billy L. King, and a jury returned a verdict

attributing 80% of the fault for the accident to Billy L. King and 20% fault to Martha

Carter. Da mages w ere assessed for Ma rtha in the am ount of $ 150,000 .00 for bo dily

injury, medical expenses and loss of earnings or earning capacity, and for her husband

Steven in the amo unt of $15,000.00 for loss of services and c onsortium. Am ira

Nicole was awarded $1,000.00 for bodily injury, and her parents $500.00 for medical

expenses and loss of services of their daughter. The judgment was reduced by the

20% fault attributable to Martha, with the final judgment entered as follows: Martha

Carter - $120,000.00; Steven Carter - $12,000.00; Amira Nicole Carter - $800.00, and

Martha and Steven Carter - $400.00.

                The dispute between the parties focuses on the construction of the

insurance contract. Issues relating to the scope of insurance coverage present

questio ns of la w. Standard Fire Ins. Co. v. Chester O’Donley & Assoc., 972 S.W.2d

1, 5-6 (Tenn. App. 1998). Accordingly, our review is de novo without any

presum ption th at the jud gmen t below is correc t.

                Contracts of insurance must be read in their entirety, and the language

used mus t be g iven its “p lain a nd ordinary meani ng, a nd w here there is no am bigu ity,


                                                 2
it is the duty of the Court to apply the words used in their ordinary meaning, without

any false constru ction. Paul v. Insurance Co. of North America, 675 S.W.2d 481,

483-4, (Te nn. App . 1984); Beef N’ Bird of Am. v. Continental Cas. Co., 803 S.W.2d

234, 23 7 (Ten n. App . 1990) .

               We find no ambiguity in the policy before us. Under Part C, the

uninsured motorists coverage, the policy has limits of $100,000.00 per person and

$300,000.00 per accident. Part B deals with medical payments coverage, and has a

limit of $10 ,000.00 pe r person. U nder the he ading “L imit of Liab ility,” Part B

provides:

               A. Medical Payments Coverage:
               ...
                    2. Any amounts otherwise payable for expenses under Medical
                    Payments Coverage shall be reduced by any amounts paid or
                     payable for the same expenses under Part A or Part C.
                     3. If we make a payment to an injured person under Medical
                     Payments Coverage, that payment shall be applied toward any
                     settlement or judgmen t that person receives unde r Part A or Part
                     C.

Under th is provision, th e benefits p aid to Ms . Carter und er the med ical payments

coverage of Part B must be applied toward her total recovery of $100,000.00 under the

uninsured motorists coverage. However, Part B contains a special provision dealing

with air bags and seat belts, which provides as follows:

                       If Medical Payments Coverage is in effect and a covered person
               is wearing a seat belt, prote cted by an air b ag or in an a ppropriate c hild
               restraint devic e at the time o f an accide nt, we w ill:

                      1. Increase the limit of liability shown in the Declarations for
               Medical Payments Coverage by $10,000.00 for that covered person for
               that acciden t.
               ....

               It is clear from this language that the intent is to increase the limit of

liability for m edical p ayments by $10,0 00.00 f or a cov ered pe rson fo r one ac cident.

Plaintiffs point to language found outside the insurance policy for the proposition that

$10,000.00 is a separate benefit from the medical benefits. However, since the policy

                                              3
langua ge is no t ambig uous, w e do no t resort to extrinsic eviden ce. See Blue Diamond

Coal v. Holland-America Ins. Co., 671 S .W.2d 829, 83 3 (Ten n. 1984 ).

               Next, plaintiff Steven Carter contends that his judgment for loss of

consortium is not a derivative action, such as to fall under the definition in the

uninsured motorists co verage. Pa rt C of the p olicy sets forth the uninsured motorists

covera ge, wh ich has limits of $100,0 00.00 p er perso n and $ 300,00 0.00 pe r accide nt.

Under th e heading , “Limit of L iability,” in Part C, the policy states:

               A. For BI (bodily injury) 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
               damage s recovera ble by any person s, is the limit of B I liability shown in
               the Decla rations for “e ach Perso n” for U M Co verage. Su bject 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. . . . 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 acciden t.

It is the Carters position, that the husband’s loss of consortium claim, though

derivative of the wife’s injuries, is a separate claim which is subject to a separate “per

person” limit. The defendant, on the other hand, argues the policy includes loss of

conso rtium cla ims in its p er perso n limit fo r the inju red par ty.

                While we have long recognized that the husband or wife’s claim for loss

of consortium is derivative in the sense that the injuries to his or her spouse are an

element that must be proved, the loss of consortium is a right independent of the

spouse ’s right to recove r for the injuries. Swafford v. Chattanooga, 743 S.W.2d 174,

178 (Tenn. App. 1987). The right to recover for the loss of consortium under an

insurance policy may be limited to the per person policy limits, depending upon the

constru ction of the polic y. See Yancey v. Utilities Ins. Co., 23 Tenn. App. 663, 137

S.W.2 d 318, 3 25 (19 39). Accord, Harper v. Kelley, No. 03A01-9106CV199, 1991

WL 220611 (Tenn. App. Oct. 31, 1991). In the policy before us, giving the language


                                                 4
its ordinary and n atural mean ing, it limits the liability for in juries to one p erson to

$100,00 0.00. This lim it of liability is for bod ily injury to any one pers on, and “a ll

resulting damages, including, but not limited to, all direct derivative or consequential

damages recoverable by any person”. This includes the loss of consortium claims,

which ar e derivative a ctions and r ecoverab le by someon e other than the physically

injured party. Accordingly, we affirm the judgment of the Trial Court and remand

with cost of the appeal assessed to the appellants.




                                              __________________________
                                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




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