Rachelle R. Jackson v. Wisconsin County Mutual Insurance Corp.

2014 WI 36
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1644
COMPLETE TITLE: Rachelle R. Jackson,
Plaintiff-Appellant,
v.
Wisconsin County Mutual Insurance Corp.,
Defendant-Respondent-Petitioner,
Daniel P. Lynch and Patrick A. Lynch,
Defendants.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 348 Wis. 2d 203, 832 N.W.2d 163
(Ct. App. 2013 – Published)
PDC No: 2013 WI App 65
OPINION FILED: June 10, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 13, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: William Sosnay
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: PROSSER, J., did not participate.
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
by Lori M. Lubinsky, Timothy M. Barber, and Axley Brynelson,
LLP, Madison, and oral argument by Lori M. Lubinsky.
For the plaintiff-appellant, the cause was argued by
Christopher L. Strohbehn, with whom on the brief was D. Michael
Guerin, Kathryn A. Keppel, and Gimbel, Reilly, Guerin & Brown
LLP, Milwaukee.
An amicus curiae brief was filed by James A. Friedman,
Dustin B. Brown and Godfrey & Kahn, S.C., Madison, on behalf of
the Wisconsin Insurance Alliance.
2
2014 WI 36
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1644
(L.C. No. 2011CV1407)
STATE OF WISCONSIN : IN SUPREME COURT
Rachelle R. Jackson,
Plaintiff-Appellant,
v. FILED
Wisconsin County Mutual Insurance Corporation,
JUN 10, 2014
Defendant-Respondent-Petitioner,
and Diane M. Fremgen
Clerk of Supreme Court
Daniel P. Lynch and Patrick A. Lynch,
Defendants.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 N. PATRICK CROOKS, J. This case concerns Rachelle
Jackson, a Milwaukee County sheriff's deputy who seeks coverage
under her employer's underinsured motorist policy. The policy
pays sums owed by an underinsured tortfeasor to an insured
person who is injured while "using an automobile within the
scope of his or her employment or authority." The policy
defines "using" by saying it "has the meaning set forth in Wis.
No. 2012AP1644
Stat. § 632.32.(2)(c)"1 and "includes driving, operating,
manipulating, riding in and any other use." This case turns on
whether Jackson was "using an automobile" when she was injured.
¶2 Jackson was injured while on duty by a driver to whom
she had just given directions. The driver hit her as she walked
in front of the car after she stated that she would "help [the
driver] get in traffic." Jackson argues that under the policy's
definition of "using an automobile" and under case law broadly
construing the word "using," her actions with regard to the
vehicle that hit her constituted using the vehicle because she
was in essence controlling the vehicle. She testified in her
deposition that at the time she was hit, she had already "asked"
the driver to pull into the parking lane to speak with him, had
spoken with him, and had started to "go in front of the car,
walk in the walkway" when the driver pulled forward and hit
her. She argues that the accident occurred while she was in the
process of "manipulating" the car or while she was making some
"other use" of the car. There is no assertion that she had
stopped traffic or was guiding the driver into traffic at the
time of the accident.
¶3 To determine the meaning of the insurance contract, we
first look at the policy language itself. We then turn to prior
Wisconsin cases interpreting the statute and similar policy
1
This statute is now numbered Wis. Stat. § 632.32 (2)(h)
(2011-12); it states, "'Using' includes driving, operating,
manipulating, riding in and any other use." All references to
the Wisconsin Statutes are to 2011-12 unless otherwise noted.
2
No. 2012AP1644
language, insurance treatises, and cases from other
jurisdictions construing the same type of policy language. We
conclude that Jackson cannot recover because the actions she
took with regard to the vehicle that hit her do not constitute
using a vehicle in any way that is consistent with
interpretations of "use" in Wisconsin case law or with those of
cases from other jurisdictions.
¶4 Even though Wisconsin courts have given the word
"using," in the context of insurance policies, quite a broad
definition, the definition has limits. See Progressive N. Ins.
Co. v. Jacobson, 2011 WI App 140, ¶12, 337 Wis. 2d 533, 804
N.W.2d 838 ("Though 'use' is a broad term and is given a liberal
construction, it is not without limitation."); see also Tomlin
v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis. 2d 215, 225,
290 N.W.2d 285 (1980) (finding "arising out of use of vehicle"
policy language precluded coverage for state patrolman who was
injured by driver after a traffic stop).
¶5 Other Wisconsin case law construing the phrase "using
an automobile" or similar phrases in the context of an insurance
policy applies an understanding of "use" that is consistent with
an insurance treatise definition: "employment for the purposes
of the user."2 This broad definition helps to define the limits
of "use" and further supports our conclusion that Jackson's acts
with regard to the vehicle that hit her were not done while she
was employing the car for any purpose. When we review the types
2
8 Couch on Insurance § 119:37 (3d ed. 2005).
3
No. 2012AP1644
of purposes for which vehicles have been employed, we find none
in which the control or use of the vehicle is as attenuated as
it is here, given that at the time of the accident, Jackson had
not begun to guide the vehicle into traffic.
¶6 However, even though we can draw some general guidance
from our cases, we recognize that no Wisconsin case directly
applies because none has addressed use of a vehicle premised on
the person's guiding of the driver. Garcia v. Regent Insurance
Company,3 the case on which the court of appeals relied, held
that "a driver's gesture and call to invite and assist a
passenger to enter a vehicle is part of the inherent use of a
vehicle," but that case is easily distinguishable. Neither its
facts (a driver calling and gesturing to a child passenger), nor
its analysis (whether a driver's "collateral[] involve[ment]" in
a passenger's getting in and of a car is part of its inherent
use), nor its conclusion (that inherent use encompasses a
driver's helping a passenger who is "boarding") bears any
relation to the question presented in this case concerning a
person outside a vehicle who purports to be using the vehicle by
guiding it.
¶7 No Wisconsin court has addressed a case involving a
non-driver who is preparing to guide, but not yet guiding, a
vehicle driven by another. Courts from other jurisdictions have
considered guidance cases. It is clear that permitting recovery
3
Garcia v. Regent Ins. Co., 167 Wis. 2d 287, 481 N.W.2d 660
(Ct. App. 1992).
4
No. 2012AP1644
by Jackson would not be consistent with interpretations of those
courts. Treatises recognize that under some circumstances a
person directing a car from outside the vehicle may be using the
vehicle within the meaning of insurance policy language.
¶8 Holdings from these cases and holdings in Wisconsin
cases are based on the same principles for construing insurance
policies, and we find them helpful. A review of those cases4 is
helpful because it reveals what a "using by guiding" case
requires: "For example, where the driver cannot see where he is
going and completely trusts the guide to direct his movements,
the guide can be considered a user because the actual driver is
essentially an automaton, responding solely to the guide's
directions."5
¶9 By comparison to that scenario, Jackson's testimony
was that the accident happened before she went to stop the
traffic: "I looked at [the driver] when I walked——as I was going
4
A representative example from this line of cases is one in
which a man helped a tractor-trailer driver back a truck up on a
worksite. The court's conclusion was based on the following
reasoning:
[the] hand signals to the driver effectively
determined the direction and movement of the tractor-
trailer and were required by the driver for the
completion of the intended maneuver of the vehicle.
Accordingly, there was a causal relationship between
the incident in which [the signaler] was injured and
the employment of the tractor-trailer as a vehicle
. . . .
Slagle v. Hartford Ins. Co., 594 S.E.2d 582, 587 (Va. 2004).
5
8 Couch on Insurance § 111:39 (3d ed. 2005).
5
No. 2012AP1644
in front of the car, but after that I was looking at the traffic
to see when it was safe for me to walk out and to stop it so I
could help him get in [to the lane of moving traffic]."
Jackson, by her own undisputed testimony, was not controlling
the car at the time of the accident and had not, in fact, begun
to guide the vehicle into traffic.
¶10 We conclude that Jackson was not using the vehicle at
the time of her injury, and we therefore reverse the court of
appeals.6
I. BACKGROUND
¶11 Jackson's deposition testimony regarding the
circumstances of the accident can be summarized briefly. She
was on duty on a sidewalk at the Milwaukee airport when a lost
motorist pulled up near her and asked how to get to a specific
hotel. She "asked him if he could pull over to the curb," which
he did; then she bent down to speak into the window, standing
one or two feet away from the car, and answered his question.
The driver and passenger said they had gotten lost and ended up
at the airport after a long drive. After Jackson gave the
directions to the hotel, the driver asked, "How am I going to
get back in traffic?" Jackson said she responded, "I'll go in
front of your car, and I'll come around and help you get in
traffic." As Jackson walked on the pedestrian walkway in front
of the car, the car "move[d] three or four feet" at about five
6
Jackson v. Wis. Cnty. Mut. Ins. Corp., et al., 2013 WI App
65, ¶7, 348 Wis. 2d 203, 832 N.W.2d 163.
6
No. 2012AP1644
miles per hour and hit her. She described the accident as
follows:
[A]s soon as I get in front of the car, like, midway,
I feel a hit or a tap on my leg . . . . I'm thinking
to myself, "Did I just get hit?" And I put my hands on
the . . . hood of the car, raise up my left leg
because I'm trying to jump out of the way of the car.
The right leg hit – as I go on the side of the car – I
said, "You realize you just hit me. Park the car."
¶12 The accident report states that Jackson "was helping
[the vehicle] with directions and walked into the crosswalk with
flashing stop sign to stop traffic when [the vehicle] attempting
to enter traffic struck the deputy almost knocking her down."
¶13 Jackson brought this action against several parties,
including her employer's insurer, Wisconsin County Mutual
Insurance Corporation (WCMIC), which had issued a public entity
liability insurance policy that, under an endorsement, provided
underinsured motorist benefits to Milwaukee County deputies.
¶14 WCMIC moved for summary judgment on the ground that
Jackson was not "using an automobile" at the time of the
accident, as its policy requires for coverage. The Milwaukee
County Circuit Court, the Hon. William Sosnay presiding,
acknowledged that "there is not a lot of case law on this" and
granted summary judgment to the insurer, holding that "the court
would be stretching the law to allow for coverage based upon the
conduct and the facts as they have been presented . . . ."
7
No. 2012AP1644
¶15 The court of appeals reversed, relying principally on
language from Garcia. That case——which involved a driver
sitting in the driver's seat in his car, motioning to an
intended passenger, a child, across the street——stated that the
driver's conduct, consisting of "verbal cues and [a] hand
gesture," constituted "use" of the vehicle within the meaning of
the insurance policies, and that "[the driver,] while tending
the vehicle with engine running, . . . called and gestured to
[his approaching passenger] to get into the car." Garcia v.
Regent Ins. Co., 167 Wis. 2d 287, 296, 300, 481 N.W.2d 660 (Ct.
App. 1992). The Garcia court considered "invit[ing] and
assist[ing] a passenger to enter a vehicle" to be "part of the
inherent use of a vehicle" because vehicles are used to
transport passengers. Id. Garcia also reiterated prior
Wisconsin case law holding that an insured does not "have to be
in direct physical contact with the vehicle to be using it." Id.
at 296.
¶16 Citing Garcia's language, along with the general
principle that coverage clauses are broadly interpreted "to
afford the greatest protection to the insured," id. at 294, the
court of appeals concluded that "'manipulating' combined with
'and any other use' encompasses Jackson helping the underinsured
driver to safely re-enter traffic." Jackson v. Wis. Cnty. Mut.
8
No. 2012AP1644
Ins. Corp., et al., 2013 WI App 65, ¶7, 348 Wis. 2d 203, 832
N.W.2d 163.
II. STANDARD OF REVIEW AND PRINCIPLES OF INTERPRETATION
¶17 "[W]hether an insurance policy affords coverage . . .
[is a] question[] of insurance contract interpretation subject
to de novo review." 1325 N. Van Buren, LLC v. T-3 Grp., Ltd.,
2006 WI 94, ¶23, 293 Wis. 2d 410, 427-28, 716 N.W.2d 822. "The
same rules of construction that govern general contracts are
applied to the language in insurance polices. An insurance
policy is construed to give effect to the intent of the parties
as expressed in the language of the policy." Folkman v. Quamme,
2003 WI 116, ¶12, 264 Wis. 2d 617, 665 N.W.2d 857. Here, we
focus on a phrase that limits who is an insured for purposes of
an underinsured motorist endorsement. We start with the premise
that the proper interpretation of that phrase has to be one that
gives it effect and recognizes that it is intended to draw a
line between who is covered and who is not covered.
¶18 This case comes to us following a grant of summary
judgment.
We review a grant of summary judgment de novo, relying
on the same methodology as the circuit court. Summary
judgment is proper where the record demonstrates that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a
matter of law.
Schinner v. Gundrum, 2013 WI 71, ¶¶35-36, 349 Wis. 2d 529, 833
N.W.2d 685 (internal citations omitted).
9
No. 2012AP1644
III. DISCUSSION
¶19 To be an insured under Section II.B. of the UIM
endorsement, Jackson must meet three requirements. It is
undisputed that she meets the first two: that she was an insured
under the policy and that she was within the scope of her
employment. The sole question we address7 is whether Jackson was
"using an automobile" and, therefore, met all three
requirements. The contested language we will focus on is found
in sections II.B. and V.C. of the Underinsured Motorist
Endorsement to the policy:
I. Insuring agreement
A. We will pay all sums the insured is legally entitled to
recover as monetary damages from the owner or driver of
an underinsured motor vehicle because of bodily injury.
The bodily injury must be sustained by the insured and
must be caused by an accident. The owner's or driver's
liability for the damages must result from the ownership,
maintenance or use of the underinsured motor vehicle.
. . .
II. Who is an insured
. . .
B. Any person qualifying as an insured under the Who Is an
Insured provision of the policy while using an automobile
within the scope of his or her employment or authority.
. . .
V. Definitions
. . .
7
WCMIC raises a second argument against coverage: that
"[t]he clear intent of the UIM endorsement is to provide
coverage to someone 'using' a vehicle other than the
underinsured vehicle involved in the accident." Pet'r's Br. at
35. Because we resolve this case on the first issue raised, we
need not address the alternative argument.
10
No. 2012AP1644
C. Using has the meaning set forth in Wis. Stats. Sec.
632.32(2)(c) and includes driving, operating,
manipulating, riding in and any other use.
(Emphasis added. Capitalization omitted.)
¶20 "Using" is defined in the endorsement as including
"driving, operating, manipulating, riding in and any other use."
No party asserts that Jackson was driving, operating or riding
in the vehicle. In order for Jackson to satisfy the requirement
of "using an automobile," therefore, her actions at the time the
accident occurred must be categorized as "manipulating" an
automobile or as an "other use" of an automobile.8
¶21 Jackson describes the accident in the context of the
whole encounter with the driver, starting with the direction to
the driver to pull to the curb and ending with the final order
to park the car after the accident occurred. She argues that in
her series of interactions with the driver of the vehicle, she
was in the process of manipulating the vehicle, in the sense
that she was controlling where it went, and she cites to a
dictionary definition of "manipulate" as meaning "control." She
argues that her stepping in front of the vehicle was a part of
the process that began when she indicated to the driver that he
8
We observe that the definition of "using" employed here
could be claimed to be open-ended because it states that the
word "includes" certain activities without expressly limiting
its meaning to those activities. Jackson's arguments, however,
do not turn on this aspect of the definition.
11
No. 2012AP1644
needed to pull over to the curb and would have lasted through
the point when she helped him pull back into traffic and drive
away.
¶22 In support of her position, she cites the language
"any other use" as signifying a recognition that there are more
kinds of uses than those enumerated. She also points to cases
that have broadly construed policy language requiring, as a
condition of coverage, that an injury arise out of the use of a
vehicle. For example, in Lawver v. Boling, 71 Wis. 2d 408, 412,
238 N.W.2d 514 (1976), the plaintiff was injured after a fall
from a pulley-operated lift that was tied to the defendant's
pickup truck. Plaintiff's injury was deemed to be "bodily
injury . . . arising out of the . . . use of an automobile."
Id. This was based on the fact that the court found it
reasonable to expect that a pickup truck in a farm setting "will
be put to a variety of uses beyond the ordinary transportation
of persons and goods from place to place." Id. at 416. Jackson
also points to Garcia, 167 Wis. 2d at 291-92, in which the court
of appeals considered whether the injuries to a child who had
been hit by a passing car were injuries "arising out of" the use
of the insured's vehicle. The driver had gone "to the park to
find [the child]" and, sitting in the driver's seat of his car,
beckoned the child to cross the street by "gestur[ing] with his
hand . . . that it was all right for her to come" with her
12
No. 2012AP1644
mother in the car for a trip to the grocery. The court
concluded that the injuries arose from "use" of the vehicle,
reasoning that the driver's communication to the child was an
expected part of picking up a passenger, and transporting
passengers was, in turn, an expected use of a vehicle:
The jeep in this action is designed to, among other
things, carry passengers. Within the reasonable ambit
of such use are the necessary incidental activities of
boarding and alighting and the reasonable expectation
that, in certain instances, the operator may be
collaterally involved in such activity.
Id. at 297-98. In language that Jackson cites as relevant to
this case, the court stated that the driver's "call and gesture
to [the child] constituted 'use' of the vehicle . . . ." Id.
¶23 On the other hand, WCMIC characterizes Jackson's
actions as helping the occupants of the vehicle rather than
controlling or manipulating the vehicle's movements, and notes
that at the time of the accident Jackson was simply walking in
the pedestrian walkway in front of the vehicle, not gesturing or
waving. It points out that the cases on which Jackson relies
construe broader policy language than the language at issue
13
No. 2012AP1644
here.9 The policy terms in those cases state that the insured is
covered for damages "arising out of the use of" a vehicle. That
language differs in two ways from the relevant language in this
case: first, it includes the expansive phrase "arising out of,"10
and, second, it requires "use of" a vehicle without limiting
whose use it must be. Unlike that language, the language of the
endorsement at issue here specifically defines an insured for
purposes of UIM endorsement coverage as an insured "while using
an automobile," a formulation that requires the insured to be
9
For example, Garcia involved two policies, one of which
covered "damages arising out of the . . . use of a car." Garcia
167 Wis. 2d at 292. See also Lawver v. Boling, 71 Wis. 2d 408,
415, 238 N.W.2d 514 (1976) (policy at issue "provides coverage
for injuries arising out of the use of an automobile") and
Tomlin v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis. 2d 215,
218, 290 N.W.2d 285 (1980) (policy would pay damages for
accident "arising out of the . . . use . . . of the owned motor
vehicle").
10
"As used in a liability insurance policy, the words
'arising out of' are very broad, general and comprehensive.
They are commonly understood to mean originating from, growing
out of, or flowing from, and require only that there be some
causal relationship between the injury and the risk for which
coverage is provided." Lawver v. Boling, 71 Wis. 2d at 415.
14
No. 2012AP1644
the user of the vehicle.11 WCMIC therefore argues that this case
is distinguishable from the cases Jackson cites because it
involves narrower policy language.
¶24 WCMIC also distinguishes this case from cases from
other jurisdictions where, in the context of insurance coverage
disputes or sovereign immunity claims, "use" of a police vehicle
has been found even when law enforcement officers were on foot
directing traffic, so long as their nearby vehicles were part of
the traffic management activity. See, e.g., Maring v. Hartford
Cas. Ins. Co., 484 S.E.2d 417, 420 (N.C. Ct. App. 1997) (officer
standing in intersection directing traffic was using vehicle
when lights and sirens were activated and police radio was
turned up so he could communicate from outside the vehicle);
Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 612, 622 (Ind. Ct.
App. 2011) (placing police vehicle in the lane of highway,
leaving the engine running, and activating the emergency lights
on her vehicle to redirect traffic was using vehicle "for one of
its intended purposes"); Oberkramer v. Reliance Ins. Co., 650
11
As to the difference between the phrases "arising out of
the use of" and the "while using an automobile," it has been
explained that the former "describes the accidents for which
coverage would be afforded an insured under the policy and
relates to coverage of the event causing injury" and the latter
"describes who is an insured and relates to coverage of a
particular person." 34 Am. Jur. 2d Proof of Facts § 585 (1983),
citing W. Cas. & Sur. Co. v. Crawford, 635 F.2d 667, 670 n.2
(8th Cir. 1980). This case relates to the question of coverage
of a particular person.
15
No. 2012AP1644
S.W.2d 300, 302-03 (Mo. Ct. App. 1983) (officer who was standing
away from his vehicle while it was parked across road in road
block with lights activated was using vehicle); Great Am. Ins.
Co. v. Cassell, 389 S.E.2d 476, 477 (Va. 1990) (similar holding
regarding fire truck use). Though Jackson is a law enforcement
officer, these cases provide no relevant guidance for the
question presented by this case, because they concern coverage
based on the use of the law enforcement vehicle. There is no
claim here that Jackson was using a sheriff's vehicle in any
manner, and none of the law enforcement cases cited involved a
claim that an officer was using a vehicle being driven by
someone else.
16
No. 2012AP1644
¶25 The parties' differing views of the meaning of the
word "using" in the context of an insurance policy boil down to
this. Jackson can cite numerous cases where Wisconsin courts
have interpreted "using a vehicle," for purposes of insurance
coverage, to include activities that are not what the ordinary
person would necessary call using a vehicle. In some of these
cases, the person who sought to invoke coverage was not driving
or touching the vehicle. WCMIC, while it does not seek to
overturn Garcia or any cases relied on by Jackson, points out
that on the facts of this case, we are past the outer limits of
what "using a vehicle" can be understood to mean because no case
so far has found "use" by a person in Jackson's type of
circumstances, and to do so would vastly expand coverage.
¶26 Progressive Northern Insurance Company, 337 Wis. 2d
533, ¶18, summarizes the "use" cases briefly:
These activities [deemed to be "use"] can range beyond
ordinary transportation, but generally involve some
closely related activity. See Thompson [v. State Farm
Mut. Auto. Ins. Co.], 161 Wis. 2d at 458–59[,] [468
N.W.2d 432 (1991),] (insurer could reasonably expect
that a truck might be used for hunting, and that a
hunter might use the truck bed as a platform from
which to hunt); Lawver [v. Boling], 71 Wis. 2d 411,
416[,] [238 N.W.2d 514 (1976)] (raising and lowering a
platform using a truck and pulley constitutes "use" of
the vehicle); Allstate Ins. Co. v. Truck Ins. Exch.,
63 Wis. 2d 148, 158, 216 N.W.2d 205 (1974) (reasonable
and expected "use" of a van includes loading and
unloading hunting equipment); Trampf [v. Prudential
Prop. and Cas. Co., 199 Wis. 2d [380] at 389, [544
N.W.2d 596 (Ct. App. 1995)] ("use" includes
transportation of dogs in the bed of a vehicle);
17
No. 2012AP1644
Garcia, 167 Wis. 2d at 297–98, 481 N.W.2d 660
(driver's call and gesture to pedestrian subsequently
hit while crossing the street a "use" of the vehicle);
Tasker v. Larson, 149 Wis. 2d 756, 761, 439 N.W.2d 159
(Ct. App. 1989) (leaving a child in a vehicle during a
brief errand reasonably consistent with inherent
nature of vehicle).
¶27 Jackson relies especially on the Garcia case. In
essence, she analogizes the facts in that case to the facts of
this case: if it is "using a vehicle" for a driver sitting
inside a vehicle to call and gesture to an intended passenger
outside the vehicle to direct the passenger to come to the
vehicle, then it is "using a vehicle" when a person outside the
vehicle speaks and gestures to the driver. We note here that
Jackson's deposition testimony contained no reference to
gesturing to the driver at any point. She did state that she
was planning "to stop traffic," but in fact the accident
occurred before she did so.
¶28 We turn to Wisconsin case law that deals with
construing language similar to the "while using a vehicle"
phrase in the endorsement. It is evident that "use" has been
broadly construed on occasion. Nevertheless, as we have noted
previously, the word's meaning "is not without limitation,"
Progressive N. Ins. Co., 337 Wis. 2d 533, ¶12, and the cases "do
not suggest that the term 'use' must be read so expansively as
to include a boundless number of activities." Garcia, 167 Wis.
2d 287 at 296.
18
No. 2012AP1644
¶29 Both the circuit court and the court of appeals
correctly stated that this case did not have any clear Wisconsin
precedent. The circuit court stated, "There is not a lot of
case law on this." The court of appeals stated, "No Wisconsin
published decision has set the parameters of what the word
'manipulating' . . . and [']any other use' means in the context
of this case." Jackson, 348 Wis. 2d 203, ¶8.
¶30 The courts below were correct that this scenario has
not been addressed in Wisconsin in a "using a vehicle" case.
Nevertheless, a review of what constitutes "use" in Wisconsin
case law is a good place to start. As we will see, these cases
are consistent with a broad definition of "use" given in an
insurance treatise: "The term 'use' is a broad catchall
designed to include all uses of the vehicle not falling within
the terms 'ownership' or 'maintenance,' and involves simply
employment for the purposes of the user." 8 Couch on Insurance,
§ 119:37 (3d ed. 2005).
¶31 In Lawver we recognized the "range of reasonable uses"
to which a vehicle may be put: "It is reasonably to be expected
that [the vehicle] will be put to a variety of uses beyond the
ordinary transportation of persons and goods from place to
place." Lawver, 71 Wis. 2d at 416. The concept of "employment
for the purposes of the user" is not explicit but is implicit in
each of the cases.
19
No. 2012AP1644
¶32 In Lawver, the vehicle was being put to use "as a
power source in performing necessary farm repairs," or, stated
more simply, it was used to pull a rope attached to a lift.12 In
Tasker, the truck was used, "for safety as well as convenience,"
as a place to leave a small child.13 In Thompson, the bed of the
pickup was used, as a special permit allowed, as a "flat
elevated surface from which to hunt" for the convenience of
disabled hunters.14 In Trampf, the vehicle was used to transport
dogs.15 In Allstate, the vehicle was used to transport "rifles,
ammunition, and supplies" on a hunting outing.16 In Garcia, the
vehicle was used to carry passengers, which, the court reasoned,
meant that it was sometimes used by the operator while calling
and gesturing to passengers who were "boarding and alighting."17
¶33 Jackson's actions with regard to the vehicle and
driver were not employing the vehicle for Jackson's purposes;
12
Lawver v. Boling, 71 Wis. 2d 408, 411, 416, 238 N.W.2d
514, 516, 518 (1976).
13
Tasker v. Larson, 149 Wis. 2d 756, 761, 439 N.W.2d 159,
161 (Ct. App. 1989).
14
Thompson v. State Farm Mut. Auto. Ins. Co., 161 Wis. 2d
450, 459, 468 N.W.2d 432, 435 (1991).
15
Trampf v. Prudential Prop. and Cas. Co., 199 Wis. 2d 380,
390, 544 N.W.2d 596 (Ct. App. 1995).
16
Allstate Ins. Co. v. Truck Ins. Exch., 63 Wis. 2d 148,
158, 216 N.W.2d 205, 210 (1974).
17
Garcia, 167 Wis. 2d at 298.
20
No. 2012AP1644
thus, from the outset, this case differs from "the variety of
uses" that our case law has recognized. It is reasonable to
conclude that Jackson was not "using" the vehicle involved here.
¶34 Garcia does not compel a contrary result. It simply
does not follow from the reasoning in that case that a non-
passenger standing outside the vehicle who speaks to the driver
is using a vehicle in the same way as a driver sitting inside a
vehicle who calls and gestures to an intended passenger outside
the vehicle. Even if it did, to apply Garcia in that fashion to
this case would ignore the fact that there is no indication
whatsoever in the record that Jackson gestured to the driver
here. The most that can be said is that when the accident
happened, Jackson had just told the driver she was about to stop
traffic and "help" the driver "into traffic," but she had not
yet begun to do so.
¶35 Whether a person getting ready to direct a driver
where to go is using the vehicle within the meaning of an
insurance policy, such as the one at issue here, is a question
that has not been clearly put to courts in other jurisdictions.
In Couch on Insurance, Section 111:39, it states, however, that
"a person may be considered to be 'using' a vehicle for purposes
of an omnibus clause by guiding or giving signals to the actual
operator of a vehicle." 8 Couch on Insurance, § 111:39.
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No. 2012AP1644
In determining who constitutes a user of a vehicle for
the purposes of an omnibus clause, it is generally
required that if one who claims to be a user was not
actually driving the vehicle, that individual must
have exercised some form of control over it. Control
is therefore the primary factor in determining whether
signaling directions elevates an individual to the
status of 'user' under an omnibus clause. . . .
[W]here the driver cannot see where he is going and
completely trusts the guide to direct his movements,
the guide can be considered a user because the actual
driver is essentially an automaton, responding solely
to the guide's directions.
Id.
¶36 Such a rule is not inconsistent with our holdings in
prior cases, such as the holding that "[n]either does the
insured have to be in direct contact with the vehicle to be
using it." See Garcia, 167 Wis. 2d at 296 (citing Tasker v.
Larson, 149 Wis. 2d 756, 761, 439 N.W.2d 159 (Ct. App. 1989)).
However, cases from other jurisdictions clearly do not support
the application of such a rule on these facts. The gap between
what constitutes "using by guiding" and the facts present here
becomes clear as one reviews the facts of the other
jurisdictions' "controlling the vehicle" cases.
¶37 The courts determining whether a person was "using by
guiding" have focused on how much control the driver of the
vehicle was ceding to the person who was acting as a guide. For
example, where a man helped a tractor-trailer driver back a
truck up on a worksite, the court reasoned that
[the] hand signals to the driver effectively
determined the direction and movement of the tractor-
22
No. 2012AP1644
trailer and were required by the driver for the
completion of the intended maneuver of the vehicle.
Accordingly, there was a causal relationship between
the incident in which [the signaler] was injured and
the employment of the tractor-trailer as a vehicle
. . . .
Slagle v. Hartford Ins. Co., 594 S.E.2d 582, 587 (Va. 2004).
Where a case similarly involved "active control or guidance of a
backward movement of a truck," the signaler was deemed to have
"used" the truck because he had "participate[d] in the operation
of the truck to such an extent as to be a User of the vehicle."
Woodrich Const. Co. v. Indemnity Ins. Co., 89 N.W.2d 412, 418-
419 (Minn. 1958). In another case, the court relied on "[t]he
undisputed fact[] . . . that Hill was placed in the following
flag car with a radio in order to communicate with the driver of
Dorwin's truck because the latter could not see the boom's
position from inside the truck." Insurance Co. of N. Am. v.Royal
Globe Ins. Co., 631 P.2d 1021, 1023 (Wash. Ct. App. 1981). It
therefore concluded that the person communicating with and
guiding the truck was "using" the truck within the meaning of
the relevant language. Id. In reaching that conclusion, the
court noted that it was indistinguishable from another case,
Liberty Mutual Insurance Company v. Steenberg Construction
Company, 225 F.2d 294 (8th Cir. 1955):
Steenberg was an action by a general contractor
against a subcontractor's insuror . . . . The
subcontractor was supplying mixed concrete for the
23
No. 2012AP1644
general contractor's use in laying a floor. An
employee of the general contractor signalled the
subcontractor's truck driver while backing up, and the
cement truck struck and injured a third person . . . .
The [appellate court affirmed the] trial court,
[which] . . . held that the active directing by the
general contractor of the backward movement of the
truck and the following by the subcontractor's driver
of the signals given to him both activities having
been performed as incidents to the construction work
made the participation of the general contractor such
a part of the actual operation of the truck as to
constitute the contractor's using the automobile
within the meaning of the omnibus clause.
631 P.2d 1021, 1022-23 (emphasis added).
¶38 As one court noted,
It is difficult and probably impossible to formulate
an exact measure of the degree of control which a
person not owning or driving the particular automobile
must exercise over it in order to have the type of
responsibility for its potential to do injury so as to
be deemed entitled to the protection of automobile
liability coverage. Obviously the expression 'while
using' is intended to describe the appropriate
relationship, but does not readily supply an answer in
situations of the type now before us.
Hake v. Eagle Picher Co., 406 F.2d 893, 895, 896 (7th Cir. 1969)
(citing a case in which a property owner had been deemed to be
using the automobile within the meaning of an automobile
liability policy "where by signalling directions to the driver
the owner of the premises or his employee has exercised
immediate control over the movement of the automobile").
¶39 However, this case does not reach the level of a close
case because everything relevant to this case happened before
Jackson began to guide the vehicle. To revisit Jackson's
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No. 2012AP1644
description of what she did with regard to the vehicle that hit
her, recall that she stated that she "asked [the driver] if he
could pull over to the curb," then bent down to speak into the
window, standing one or two feet away from the car, and answered
his question. After that, the driver asked, "How am I going to
get back in traffic?" Jackson said she responded, "I'll go in
front of your car, and I'll come around and help you get in
traffic." As Jackson walked on the pedestrian walkway in front
of the car, she was hit. She described the accident as follows:
[A]s soon as I get in front of the car, like, midway,
I feel a hit or a tap on my leg . . . . I'm thinking
to myself, "Did I just get hit?" And I put my hands on
the . . . hood of the car, raise up my left leg
because I'm trying to jump out of the way of the car.
The right leg hit – as I go on the side of the car – I
said, "You realize you just hit me. Park the car."
Jackson conveyed four points of information to the driver: a
request to pull to the curb, directions to the hotel he was
seeking, an offer to help him pull back into traffic, and an
order to park the car after she was hit. She touched the
vehicle as she tried to evade being hit.
¶40 Unlike the cases in which the person guiding or giving
directions was "controlling" and therefore deemed a user of the
vehicle, Jackson did not exercise such control over the vehicle
to the extent that she essentially became the user. She was not
communicating with, signaling, or exercising active control over
the vehicle at the time of the injury.
IV. CONCLUSION
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No. 2012AP1644
¶41 To determine the meaning of the insurance contract, we
first look at the policy language itself. We then turn to prior
Wisconsin cases interpreting the statute and similar policy
language, insurance treatises, and cases from other
jurisdictions construing the same type of policy language. We
conclude that Jackson cannot recover because the actions she
took with regard to the vehicle that hit her do not constitute
using a vehicle in any way that is consistent with
interpretations of "use" in Wisconsin case law or with those of
cases from other jurisdictions.
¶42 JUSTICE DAVID T. PROSSER did not participate.
By the Court.—Reversed.
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No. 2012AP1644
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