​June 11, 2014 – The Wisconsin Supreme Court has drawn a line on what constitutes “use” of a vehicle for purposes of determining whether an underinsured motorist policy covers injuries sustained by a sheriff’s deputy who was on foot when injured.

Rachelle Jackson, a deputy for Milwaukee County, was on sidewalk duty at General Mitchell International Airport when a lost driver pulled up and asked for directions.

Jackson told him to pull up near the curb. After giving the driver directions, Jackson was going to help the car maneuver back into traffic. As she walked on the pedestrian walkway in front of the car to position herself, the driver accelerated and hit her.

Jackson sought coverage for her injuries under Milwaukee County’s underinsured motorist policy, which covers employees “while using an automobile within the scope of his or her employment or authority.” The term “using” became the focus of litigation.

Under the policy, the term “using” has the meaning set forth in what is now Wis. Stat. section 632.32(2)(h), which defines “using“ as “driving, operating, manipulating, riding in and any other use” of an automobile. Jackson argued she was “manipulating” the driver’s car because she was controlling it to help the driver maneuver back into traffic.

A circuit court granted summary judgment to the insurer, Wisconsin County Mutual Insurance Company, concluding that there was no coverage.

However, a state appeals court reversed, concluding that 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.” The appeals court also ruled that “use” was not restricted to use of a police vehicle for which the policy was issued.

But in Jackson v. Wisconsin County Mutual Ins. Corp., 2014 WI 36 (June 10, 2014), the supreme court (6-0) reversed the appeals court decision, concluding that Milwaukee County’s underinsured motorist policy does not cover Jackson’s injuries.

The supreme court noted that “no Wisconsin case directly applies because none has addressed use of a vehicle premised on the person’s guiding of the driver.”

The court concluded, however, that allowing Jackson to recover would be inconsistent with rulings from other jurisdictions in so-called “using by guiding” cases.

In those cases, courts focused on the amount of “control” the driver gave to persons acting as a guide. In one case, a man was signaling directions to the driver of a tractor-trailer who could not see. The court found that the signaler was “using” the truck.

In another case, the court determined that the driver of a “flag car” who radioed instructions to the driver of an oversized truck was “using” the truck.

“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,” Justice Crooks wrote.

“She was not communicating with, signaling, or exercising active control over the vehicle at the time of the injury,” wrote Crooks, noting that Jackson was injured before she had a chance to safely guide the vehicle back into airport traffic.

The court also distinguished cases involving the use of police vehicles that were stationed at intersections to help the officers’ direct traffic on foot.

“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,” Justice Crooks explained.