Most automobile insurance policies include a provision providing that coverage will only apply if “bodily injury” or “property damage” arises out of the ownership, maintenance or use of an automobile. This requirement has long been the source of the application of unusual facts and arguments. Use of a vehicle seems fairly simplistic, but the various factual scenarios that arise have created some interesting case law which continues to develop in Wisconsin. This article will outline the current status of the “use” provision in light of a recent Wisconsin Court of Appeals’ decision.
Historically, loading and unloading situations have been well covered as constituting use. Allstate Ins. Co. v. Truck Ins. Exchange, 63 Wis.2d 148, 216 N.W.2d 205 (1973), overruled on other grounds by Lawver v. Boling, 71 Wis.2d 408, 238 N.W.2d 414(19976). We have even seen cases involving hunting from vehicles as being deemed “use”. Kemp v. Feltz, 174 Wis.2d 406, 497 N.W.2d 751 (Ct. App. 1993). A motorist gesturing a pedestrian that it is safe to cross a street is use of a motor vehicle as well. Garcia v. Regent Ins. Co., 167 Wis.2d 287, 481 N.W.2d 660 (Ct. App. 1992). Even tying a dog’s leash to a car can be found to be use. Trampf v. Prudential Property & Casualty Company, 199 Wis.2d 380, 544 N.W.2d 596 (Ct. App. 1996).
In Wisconsin, we now have further guidance in determining what is use under both policy definitions as well as Wisconsin’s omnibus statute, Wis. Stat. § 632.32. In Jackson v. Wisconsin County Mut. Ins. Co., 348 Wis.2d 203, 832 N.W.2d 163 (Ct. App. 2013), the Court was presented with having to determine if a sheriff’s deputy directing an underinsured vehicle back into traffic was using that vehicle for the purposes of the department’s underinsured motorist coverage. The short answer is yes.
The facts of the case are that the sheriff’s deputy was on duty at the General Mitchell International Airport patrolling the parking structure and baggage drive areas. The underinsured driver approached her to ask directions to a hotel. The deputy had the car pull off of the curb and gave directions. The driver then asked how she was going to get back into traffic. The sheriff’s deputy told her that she would go in front of the car and help get her back into traffic. As the deputy walked in front of the car to ease it into traffic, it moved forward and struck her.
The Court considered both the policies and definition of use as well as Wis. Stat. §. 632.32(2)(c). The policy’s definition incorporated the statute and included “driving, operating, manipulating, riding in and any other use.” The statute contained the same language. The Court concluded that “manipulating” combined with “and any other use” encompassed the deputy’s aid to the underinsured driver to safely re-enter traffic. The Court further found that the policy’s phrase “while using an automobile within the scope of his or her employment or authority” did not require that the insured be using one of the automobiles for which the policy was issued.
In reaching it’s decision, the Court concluded that an inquiry must first be made as to whether the injury “grew out of,” “had its origin in,” or “flowed from” the use of the vehicle. In this instance, the deputy was using the underinsured driver’s car because the injuries directly “flowed from” and “grew out of” for helping the driver safely re-enter traffic. The Court further found this to be a responsibility that was obviously within the scope of her employment.
The defense attempted to argue that the phrase “an automobile” in the underinsured motorist coverage grant was limited to one of the automobiles for which the policy was issued. The Court rejected that argument and instead held that two requirements must be met. First, the tortfeasor’s liability must result from the ownership, maintenance or use of the underinsured motor vehicle and, second, the person whom the policy defines as an insured must have been using an automobile within the scope of his or her employment or authority. In this instance, the Court found that both conditions were met. The vehicle was underinsured and the deputy was using it under the broad definition that is applied. The Court stated “a deputy sheriff who helps a motorist safely re-enter traffic in an area she is patrolling is ‘using’ the car to avoid injury to the driver, other drivers in the traffic stream into which she was helping him merge, and pedestrians.” Jackson at 167. Relying upon the historic broad definition of use, the Court thus concluded that the deputy’s assistance to the underinsured motorist to safely re-enter the traffic was sufficient to constitute use.
This case adds yet another layer to “use” growing out of specific facts. This is something to continue to watch develop as more unusual and unforeseen facts will be presented. For additional analysis of this article or to discuss any issue, feel free to contact Eric Goelz at [email protected].