Martha L. Carter v. Billy L. King

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 *2 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, *3 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 *4 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 *5 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.