Wisconsin Municipal Law Memo – June 23, 2014
Wisconsin Supreme CourtDecidesInteresting Coverage Case:
Last week, the Wisconsin Supreme Court issued its decision in Jackson v. Wisconsin County Mutual Insurance Corporation, 2014 WI 36, clarifying the definition of “using” a motor vehicle for purposes of determining coverage under an underinsured motorist policy. The plaintiff, Rachelle Jackson, a Milwaukee County deputy sheriff, was patrolling the parking/baggage claim area at General Mitchell International Airport when the underinsured driver asked her for directions. Jackson provided the directions and then informed the driver that she would assist him in moving back into traffic. As she walked in front of the car, the car moved forward and hit her. Milwaukee County maintained an insurance policy through Wisconsin County Mutual that provided underinsured motorist coverage to “an insured . . . while using an automobile within the scope of his or her employment or authority.” Jackson sought coverage under this policy. The parties did not dispute that Jackson was an “insured” under the policy, but Wisconsin County Mutual claimed Jackson was not entitled to coverage because she was not “using” a vehicle at the time of the accident. The circuit court granted summary judgment in favor of Wisconsin County Mutual on this ground and the plaintiff appealed.
The court of appeals reversed the circuit court’s summary judgment decision, focusing on the policy provision defining “using” to include driving, operating, manipulating, riding in and any other use” of a vehicle. While this language had not previously been interpreted by the Wisconsin courts, the court of appeals identified that Wisconsin has generally defined “use” broadly. The proper inquiry, the court explained, was whether the injury “grew out of,” “had its origin in” or “flowed from” the use of the automobile. The court of appeals found that because Jackson’s injuries flowed directly from her helping the driver safety re-enter traffic, Jackson was “using” the underinsured driver’s car under the policy.
The Wisconsin Supreme Court disagreed and reversed. While recognizing the broad interpretation of the term “use,” the court explained that the definition was not without limits. The court differentiated this case from many others cited by Jackson based on one particular fact – that Jackson had not yet started guiding or otherwise instructing the vehicle at the time she was hit. “Use” has been defined so as not to require the individual “using” the vehicle to be inside of or even in contact with the vehicle. However, the relevant inquiry in such scenarios is to what extent the individual seeking coverage was in control of the vehicle. Here, the court found that because Jackson was walking in front of but had not yet begun guiding the vehicle back into traffic, it was not proper to extend the definition of “use” to this set of facts. As Jackson was not “using” the vehicle at the time of the accident, she was not entitled to underinsured motor coverage under the policy.
This case provides a reminder that while language of insurance policies often must be construed broadly, there are limitations that apply to coverage. The County’s policy at issue in this case was different in some respects from a general automobile policy as it applied to County vehicles used during the course of employment and does not insure for incidents “arising out of the use” but rather “use” only. This case was one of first impression in Wisconsin and it will be interesting to see how it is argued and applied in future insurance coverage cases, particularly given the somewhat unique coverage provided under the policy.
