April 24, 2013 – An underinsured driver struck a deputy sheriff who exited her squad car to direct traffic at General Mitchell International Airport in Milwaukee. Recently, a state appeals court ruled that Milwaukee County’s insurer must cover any losses.
The county’s underinsured motorist policy with Wisconsin County Mutual Insurance Company covered employees “while using an automobile within the scope of his or her employment or authority.” The term “using” was the operative word in litigation.
The officer wasn’t “using” her squad car when she exited the vehicle to help the underinsured driver, who was stuck behind a pedestrian walkway near baggage claim. But was she “using” the underinsured vehicle by assisting its reentry into traffic?
In Jackson v. Wisconsin County Mutual Ins. Co., 2012AP1644 (April 23, 2013), a three-judge panel for the District I Wisconsin Court of Appeals answered in the affirmative, reversing a lower court decision that granted summary judgment to the insurer.
“We hold that the policy’s phrase ‘while using an automobile within the scope of his or her employment or authority’ does not require that the insured be using one of the automobiles for which the policy was issued,” wrote Judge Ralph Adam Fine.
Also, it did not matter that deputy sheriff Rachelle Jackson was on foot, the panel ruled, because “using an automobile” under the policy included “driving, operating, manipulating, riding in and any other use,” which follows the definition of “using” found at Wis. Stat. section 632.32(2)(h) of Wisconsin’s auto insurance law.
“No Wisconsin published decision has set the parameters of what the word ‘manipulating … and any other use” means in the context of this case,” Judge Fine wrote. “Nevertheless, Wisconsin has broadly defined ‘use.’”
The panel noted that courts must consider a vehicle’s connection with the activities giving rise to the injury, and whether parties to an insurance policy could reasonably contemplate the risk.
“Here, Jackson was ‘using’ the underinsured-driver’s car because her injuries directly ‘flowed from’ and ‘grew out of’ her helping the driver safely re-enter traffic – a responsibility that was obviously within the scope of her employment,” wrote Judge Fine, distinguishing other cases in which the injury did not flow from vehicle use.
For instance, the panel cited other cases in which the injury was not “sufficiently connected” to use of the vehicle, including one where a minor driver stabbed an officer while the officer reached for partially hidden beer bottles within the vehicle.