Jackson v. Wis. Cnty. Mut. Ins. Corp.

354 Wis.2d 327

847 N.W.2d 384

2014 WI 36

Rachelle R. JACKSON, Plaintiff–Appellant,

v. WISCONSIN COUNTY MUTUAL INSURANCE CORPORATION, Defendant–Respondent–Petitioner,andDaniel P. Lynch and Patrick A. Lynch, Defendants.

No. 2012AP1644.

Supreme Court of Wisconsin.

Argued March 13, 2014.

Decided June 10, 2014.

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.

N. PATRICK CROOKS, J.

¶ 1 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. 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 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 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 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 cases ⁴ 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 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 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....”

¶ 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...