When Does Directing Traffic Constitute Vehicle Use?

Some courts have concluded that law enforcement officers, while on foot, directing traffic constitutes the “use” of a police vehicle provided that the police vehicle was nearby and was part of the overall traffic management activity. See, e.g., Maring v. Hartford Cas. Ins. Co., 126 N.C.App. 201 484 S.E.2d 417, 420 (1997) (use of police vehicle found when lights and sirens on the vehicle were activated and the police radio was turned up so that the officer could communicate from outside the vehicle while standing in the intersection directing traffic); Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 612, 622 (Ind. Ct. App. 2011) (placement of police vehicle in a highway lane, leaving the engine running, and activating the emergency lights to redirect traffic constituted vehicle use “for one of its intended purposes”); Oberkramer v. Reliance Ins. Co., 650 S.W.2d 300, 302-03 (Mo. Ct. App. 1983) (where police vehicle was parked across the road in a road-blocking position with its lights activated constituted vehicle use when the police officer was standing away from the vehicle directing traffic).

Tractor Trailer

In determining whether a person was “using by guiding” a vehicle, courts have focused on how much control the driver of the vehicle ceded to the person who was acting as the guide. As an example in Slagle v. Hartford Ins. Co., 267 Va. 629, 594 S.E.2d 582, 587 (2004), an individual was helping a tractor-trailer driver back up onto a work site. In finding in favor of vehicle use, the court reasoned that: “[the] hand signals to the driver effectively determined the direction and movement of the tractor-trailer and were required by the driver for the completion of the intended maneuver of the vehicle. Accordingly, there was a causal relationship between the incident in which [the signaler] was injured and the employment of the tractor-trailer as a vehicle…”

Similarly, in Woodrich Const. Co. v. Indemnity Ins. Co. of North America, 252 Minn. 86, 89 N.W.2d 412, 418-19 (1958), the court found that the signaler was using a truck because the signaler had “participate[d] in the operation of the truck to such an extent as to be a user of the vehicle.” The court found that the signaler had “active control or guidance of a backward movement of [the] truck.”

Similarly in Liberty Mut. Ins. Co. v. Steenberg Const. Co., 225 F.2d 294 (8th Cir. 1955), a subcontractor was supplying mixed concrete for the general contractor’s use in laying a floor. An employee of the general contractor signaled the subcontractor’s truck driver while backing up and the cement truck struck and injured a third person. The court held that the active directing by the general contractor of the backward movement of the truck and the following of signals given to him by the subcontractor’s driver were both activities which were performed as incidents to the construction work. As such, the participation of the general contractor in the backing-up process as a signaler became part of the actual operation of the truck so that the general contractor was using the truck within the meaning of the policy’s omnibus clause.

The court in Ins. Co. of North America v. Royal Globe Ins. Co., 30 Wash.App. 78, 631 P.2d 1021, 1023 (1981), also found vehicle use when the signaler was placed in a following flag car with a radio in order to communicate with the driver of a truck because the driver of the truck could not see the boom’s position from outside the truck. The court concluded that the person communicating with and guiding the truck was “using” the truck within the meaning of the relevant policy language.

Signaler Using the Vehicle

The court in Hake v. Eagle Picher Co., 406 F.2d 893, 895, 896 (7th Cir. 1969), discussed the problematic analysis which is involved when determining whether a signaler can be deemed to be using the vehicle being signaled:

“It is difficult and probably impossible to formulate an exact measure of the degree of control which a person not owning or driving a particular automobile must exercise over it in order to have the type of responsibility for its potential to do injury so as to be deemed entitled to the protection of automobile liability coverage. Obviously, the expression “while using” is intended to describe the appropriate relationship, but does not readily supply an answer in situations of the type now before us.”

The facts in Hake involved a situation where a property owner was ultimately deemed to be the user of an automobile for purposes of coverage “where by signaling directions to the driver the owner of the premises or his employee [had] exercised immediate control over the movement of the automobile.”

A recent case by the Wisconsin Supreme Court demonstrates when the signaling or directing by a third party is insufficient to constitute vehicle use. In Jackson v. Wisconsin County Mut. Ins. Corp., 354 Wis.2d 327, 847 N.W. 2d 384 (2014), a deputy sheriff was struck by a vehicle while assisting the vehicle to enter a lane of traffic at an airport. The deputy sheriff testified that she was on duty on a sidewalk at the Milwaukee Airport when a lost motorist pulled up to her and asked how to get to a specific hotel. The deputy sheriff directed the motorist to pull over to the curb, which the motorist did. The deputy sheriff then bent down to speak into the window, standing one or two feet away from the car, to answer the motorist’s question. After the deputy sheriff gave directions to the hotel, the driver then asked the deputy sheriff “how am I going to get back in traffic?” The deputy sheriff responded “I will go in front of your car, and I will come around and help you get in traffic.” As the deputy sheriff walked on the pedestrian walkway in front of the car, the car “move[d] three or four feet” at about 5 mph and hit her.

The court in Jackson acknowledged that “a person may be considered to be ‘using’ a vehicle for purposes of the omnibus clause by guiding or giving signals to the actual operator of the vehicle.”

The court stated: “In determining who constitutes a user of a vehicle for the purposes of an omnibus clause, it is generally required that if one who claims to be a user was not actually driving the vehicle, that individual must have exercised some form of control over it. Control is therefore the primary factor in determining whether signaling directions elevates an individual to the status of ‘user’ under an omnibus clause…. [W]here 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.”

Control of the Vehicle

In determining whether an individual was “using the automobile by guiding it” the focus is on how much control the driver of the vehicle has ceded to the person who was acting as the guide.

The deputy sheriff in Jackson described the accident in the context of the whole encounter with the driver which started with the direction given to the driver to pull to the curb and ended with the final order to park the car after the accident with the deputy sheriff had occurred. The deputy sheriff argued that in her series of interactions with the driver of the vehicle, she was in the process of manipulating the vehicle, in the sense that she was controlling where it went, citing to a dictionary definition of “manipulate” as meaning “control.”

According to the deputy sheriff, her stepping in front of the vehicle was a part of the process that began when she indicated to the driver that he needed to pull over to the curb and would have lasted through the point when she helped him pull back into traffic and the driveway. However, the insurance company characterized the deputy sheriff’s actions as merely helping the occupants of the vehicle rather than controlling or manipulating the vehicle’s movements. The insurer argued that the deputy sheriff was simply walking in the pedestrian walkway in front of the vehicle when the accident occurred and that the deputy sheriff was not gesturing or waving.

The Wisconsin Supreme Court held that the deputy sheriff in Jackson was not using the vehicle. The deputy sheriff had conveyed four points of information to the driver: (1) a request to pull to the curb; (2) directions to the hotel he was seeking; (3) an offer to help him pull back into traffic; and, (4) an order to park the car after she was hit.

Unlike the cases where the person guiding or giving directions was “controlling” and therefore deemed to be a user of the vehicle, the deputy sheriff was not exercising control over the vehicle to the extent that she essentially became the user.