Jackson v. Wisconsin County Mutual Insurance

2013 WI App 65, 832 N.W.2d 163, 348 Wis. 2d 203, 2013 WL 1729501, 2013 Wisc. App. LEXIS 348
CourtCourt of Appeals of Wisconsin
DecidedApril 23, 2013
DocketNo. 2012AP1644
StatusPublished
Cited by2 cases

This text of 2013 WI App 65 (Jackson v. Wisconsin County Mutual Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Wisconsin County Mutual Insurance, 2013 WI App 65, 832 N.W.2d 163, 348 Wis. 2d 203, 2013 WL 1729501, 2013 Wisc. App. LEXIS 348 (Wis. Ct. App. 2013).

Opinion

FINE, J.

¶ 1. Rachelle R. Jackson appeals the circuit court's grant of summary judgment to Wisconsin County Mutual Insurance Corporation dismissing her complaint against it. Jackson is a Milwaukee County deputy sheriff. She sued Wisconsin County Mutual, contending that she was an insured under the policy issued to her employer Milwaukee County, and that she therefore had underinsured-motorist coverage under it when an underinsured driver hit her while she was working. The circuit court ruled that she was not covered because she was not "using" the underinsured driver's car when he hit her. We reverse.

I.

¶ 2. Neither party disputes the core facts underlying the legal issue presented by this appeal, namely whether Wisconsin County Mutual's underinsuredmotorist policy covers Jackson's injuries. The policy gives underinsured-motorist coverage to "an insured ... while [206]*206using an automobile within the scope of his or her employment or authority" (Italics omitted.) Milwaukee County is the "Named Insured." Wisconsin County Mutual does not dispute that Jackson is an "insured" under the policy; the policy says that "Insured means: ... Your past and present employees ... while acting within the scope of their employment or authority." (Italics in original.)

¶ 3. As she indicated in her response to written interrogatories, Jackson "was patrolling the parking structure and baggage drive areas at General Mitchell International Airport immediately prior to the accident." She testified at her deposition that the underinsured driver told her that he had gotten lost trying to find a hotel. She had the car pull to the curb out of traffic, spoke to the driver and his passenger through an open window, and gave them directions to their hotel. The driver then asked her " 'How am I going to get back into traffic?'" Jackson told the driver, " 'I'll go in front of your car, and I'll come around and help you get in traffic.'" She explained that she did that "because he was right in front of the pedestrian walk" and that she had to "[h]elp him get into traffic to proceed on [to] where he was going." Jackson walked in front of the car to ease it into traffic when it moved forward some three or four feet and hit her.

¶ 4. As noted, the circuit court determined that Jackson was not "using" the car that hit her and, therefore, granted summary judgment to Wisconsin County Mutual.

II.

¶ 5. A party is entitled to summary judgment if "there is no genuine issue as to any material fact" and [207]*207that party "is entitled to a judgment as a matter of law." Wis. Stat. Rule 802.08(2). We review de novo a circuit court's ruling on summary judgment. Johnson v. Mt. Morris Mutual Ins. Co., 2012 WI App 3, ¶ 8, 338 Wis. 2d 327, 332, 809 N.W.2d 53, 56 (Ct. App. 2011). Our analysis of statutes and insurance policies is also de novo. Wisconsin State Local Government Property Ins. Fund v. Thomas A. Mason Co., 2008 WI App 49, ¶ 9, 308 Wis. 2d 512, 519, 748 N.W.2d 476, 480.

¶ 6. We apply both statutes and insurance contracts as they are written. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 662, 681 N.W.2d 110, 123-124 (statutes); Folkman v. Quamme, 2003 WI 116, ¶ 13, 264 Wis. 2d 617, 631, 665 N.W.2d 857, 864 (insurance contracts); Smith v. Atlantic Mutual Ins. Co., 155 Wis. 2d 808, 811, 456 N.W.2d 597, 599 (1990) ("[W]hen the terms of an insurance policy are plain on their face, the policy must not be rewritten by construction.").

¶ 7. The Wisconsin County Mutual policy says: "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." (First italics in the original, emphases added.) Section 3150 of 2009 Wis. Act 28 renumbered § 632.32(2)(c) as § 632.32(2)(h), which also reads: " 'Using' includes driving, operating, manipulating, riding in and any other use." (Emphases added.) We conclude that "manipulating" combined with "and any other use" encompasses Jackson helping the underinsured driver to safely re-enter traffic. Further, 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.

[208]*208A.

¶ 8. No Wisconsin published decision has set the parameters of what the word "manipulating ... and any other use" means in the context of this case. Nevertheless, Wisconsin has broadly defined "use." See Garcia v. Regent Ins. Co., 167 Wis. 2d 287, 294, 481 N.W.2d 660, 663 (Ct. App. 1992) ("Since we deal here with coverage clauses in an insurance policy, we are to broadly interpret the words as used in the policies so as to afford the greatest protection to the insured."). Thus, an insured does not "have to be in direct physical contact with the vehicle to be using it." Id., 167 Wis. 2d at 296, 481 N.W.2d at 664.

¶ 9. Garcia held that sitting in a car and calling and gesturing to a child that it was safe to cross the street was "using" the car. Id., 167 Wis. 2d at 291, 296, 481 N.W.2d at 662, 664 ("[Vjerbal cues and hand gesture . .. constituted 'use' of the vehicle within the meaning of the insurance policies."). Similarly, there was "use" of a vehicle for insurance purposes when dogs tethered to the roll bar of Jeep owned by an uninsured motorist bit a passing pedestrian even though the Jeep's owner was not then present. Trampf v. Prudential Property & Casualty Co., 199 Wis. 2d 380, 383, 387, 389-390, 544 N.W.2d 596, 597-598, 600 (Ct. App. 1996).

¶ 10. Broadly reading insurance policies does not, of course, mean that every injury that may have involved a car means "using" that car in connection with that injury. Rather, the "inquiry is whether the vehicle's connection with the activities which gave rise to the injuries is sufficient to bring those general activities, and the negligence connected therewith, within the risk for [209]*209which the parties to the contract reasonably contemplated there would be coverage." Garcia, 167 Wis. 2d at 295, 481 N.W.2d at 664. Thus, "in each instance we ask whether the injury 'grew out of,' 'had its origin in,' or 'flowed from' the use of the vehicle." Id., 167 Wis. 2d at 296, 481 N.W.2d at 664 (quoted source omitted). 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.

¶ 11. In contrast to our situation here (and to the situations in Garcia and Trampf), is where the event causing injury did not flow from or grow out of a car's use. In Tomlin v. State Farm Mutual Automobile Liability Ins. Co., 95 Wis. 2d 215, 290 N.W.2d 285 (1980), a state patrol officer stopped a minor driver. Id., 95 Wis. 2d at 217, 290 N.W.2d at 286-287.

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2013 WI App 65, 832 N.W.2d 163, 348 Wis. 2d 203, 2013 WL 1729501, 2013 Wisc. App. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-wisconsin-county-mutual-insurance-wisctapp-2013.