Butzberger v. Foster

Fairhurst, J.

(concurring in part/dissenting in part)

I respectfully concur in part and dissent in part. I agree with the majority that Jeffrey Butzberger was “using” *421the vehicle he was driving at the time he encountered Frank Foster for purposes of coverage under T.H.E.’s under-insured motorist (UIM) policy. I disagree, however, that the record as presented supports the majority’s conclusion that Butzberger’s apparent attempt to rescue Foster constituted use of Foster’s truck for purposes of coverage under Allstate’s UIM policy. I would remand the case to the trial court for further proceedings on whether Butzberger was covered by the Allstate policy because he was “in” or “on” Foster’s truck.

This court has not critically examined the four-part test adopted in Rau v. Liberty Mutual Insurance Co., 21 Wn. App. 326, 331, 585 P.2d 157 (1978), for determining when a person is using a vehicle for purposes of UIM coverage. See majority at 402-03; Sears v. Grange Ins. Ass’n, 111 Wn.2d 636, 762 P.2d 1141 (1988); Roller v. Stonewall Ins. Co., 115 Wn.2d 679, 801 P.2d 207 (1990). Division Two of the Court of Appeals has examined the test and concluded:

[T]he issue in such cases may be generally stated: Whether a common sense understanding of the particular use at issue indicates a connection exists between the injured person and the insured vehicle, thus bringing the event within the reasonable expectations of the insured when contracting for coverage of persons using the insured vehicle.

Cherry v. Truck Ins. Exch., 77 Wn. App. 557, 565, 892 P.2d 768 (1995). I agree that a commonsense understanding of the reasonable expectations of the parties to an insurance contract should guide our analysis of when a person is using a vehicle for UIM purposes.9 Using this approach, I agree *422we should abandon use of the vehicle orientation factor entirely. Unlike the majority, however, I would limit application of the essential transaction factor to cases involving specialty vehicles.

I

Claim Against T.H.E.

I agree with the majority’s conclusion that Butzberger was using Cascade Distributing’s vehicle for purposes of coverage under T.H.E.’s UIM motorist policy. I disagree, however, with its application of Rau’s essential transaction factor. While the essential transaction factor is useful in cases involving specialty vehicles, it is not necessary to determine whether activities related to the normal use of the vehicle as a vehicle are within the contemplation of the parties to an insurance contract.

As articulated in Rau, the essential transaction factor requires that the injured person “be engaged in a transaction essential to the use of the vehicle at the time.” Rau, 21 Wn. App. at 334. Unfortunately, Rau’s formulation of the essential transaction factor fails to capture the critical distinction between use of the vehicle as a vehicle and use of the vehicle for some other special function. Owens, the case cited by Rau as the source for the essential transaction factor, makes this point precisely: “[AJlthough use of the stretcher to convey Mrs. Mason from her home to the waiting ambulance was not a necessary incident to use of the automobile as a motor vehicle, it was an essential transaction in connection with use of the automobile as an ambulance.” Owens v. Ocean Accident & Guarantee Corp., 194 Ark. 817, 109 S.W.2d 928, 930 (1937) (emphasis added).

Similarly, Booker, which is also cited in Rau, looks to the use of a garbage truck as a garbage truck. It states:

In defining the word “use” of the garbage truck, we must look to the contemplation of the parties in entering into the insurance contract. It is clear from the insurance contract that this vehicle was to be used in the business of “Sanitary Pick Up” .... Common sense tells us that the parties certainly *423contemplated that the garbage truck would be loaded and unloaded and that the garbage to be loaded on said truck would be hauled to the truck . . . and that, in many instances, it would be necessary for the driver to walk down the side of the road near his truck in order to collect the garbage.

Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3, 230 S.E.2d 70, 73 (1976), quoted in Rau, 21 Wn. App. at 332-33. See also Cherry, 77 Wn. App. at 566 (analyzing use of a vehicle as an emergency tow truck).

The essential transaction factor is useful in these cases because they involve specialty vehicles engaged in activities that would not be within the purview of the risk of a vehicle insured for normal highway use. Thus, while the essential transaction factor is useful for determining what activities beyond the normal activities associated with vehicle travel may have been in the contemplation of the parties to an insurance contract, that factor is not necessary for determining what activities are normal incidents of driving a vehicle.10

Rau’s adoption of this factor in a case involving a delivery truck driver asking for directions was misplaced, and led to the inappropriate requirement that the essential transaction factor must be satisfied in every case. Although driving directions may be especially important for a delivery truck driver, asking for driving directions is a normal part of driving any vehicle. The decision in Rau does not depend on the fact that the vehicle was a delivery truck. Instead, stopping to ask for directions during a journey is the kind of *424activity that common sense tells us would be reasonably contemplated by the parties to a standard automobile insurance contract, not just policies covering delivery trucks. See Rau, 21 Wn. App. at 334-35.

In this case, Foster’s vehicle flipped over and came to rest in the middle of the interstate on which Butzberger was driving to work. Butzberger stopped to ask if Foster needed assistance and was struck and killed within seconds of stopping. I would hold that it would be an unreasonably narrow interpretation of the contemplation of the parties of an automobile insurance contract to conclude that it is uncommon for a driver to stop and offer assistance to the driver of a disabled motor vehicle, and thus outside the purview of the risk insured against.11 Like stopping to ask for directions, stopping to inquire whether a driver whose vehicle is disabled in the roadway needs assistance is a normal incident to using a vehicle as a vehicle. The essential transaction factor, while useful in the context of specialty vehicles, is not necessary to resolve this case.

II

Claim Against Allstate

I disagree with the majority’s conclusion that Butzberger’s apparent attempt to assist Foster should be considered use of Foster’s vehicle. The majority holds, for the first time, that a person who has never made, and will never *425make, actual use of an insured vehicle can nevertheless be considered to be using the vehicle for UIM coverage. This result is inconsistent with a commonsense understanding of the reasonable expectations of the parties to an insurance contract.

Factor one of the Rau test requires “a causal relation or connection between the injury and the use of the insured vehicle.” Rau, 21 Wn. App. at 334 (emphasis added). Since the Rau test was intended to determine whether a vehicle is being used at the time of the accident, the use referred to in factor one necessarily requires actual use, in the sense of operating or riding as a passenger in the vehicle, prior to the injury. Rau, the cases cited therein, Roller, and Cherry all involve a determination of when a person who had previously been using a vehicle, in the conventional sense of operating the vehicle, would be considered to still be in the process of using the vehicle for purposes of UIM coverage. As Cherry correctly notes, application of factor one to establish when use begins simply begs the question. Cherry, 77 Wn. App. at 562 n.3.

Although the majority acknowledges that no Washington case has applied the Rau analysis to a situation where the claimant did not make prior actual use of a vehicle, the majority cites to Owens and Detweiler v. J.C. Penney Casualty Insurance Co., 110 Wn.2d 99, 109, 751 P.2d 282 (1988), to support the notion that the Rau factors are appropriate for determining when use begins. Majority at 409-10. In Owens, however, the court found only that “ ‘[t]he transportation of sick persons from bed to street curb was a necessary incident to the conduct of [the ambulance company’s] business.’ ” Owens, 109 S.W.2d at 929 (quoting J.H. Hinton & Son v. Employers’ Liab. Assurance Corp., 166 Tenn. 324, 330, 62 S.W.2d 47 (1933). The court held that the ambulance, which had been driven to the scene, was still being used for purposes of the automobile insurance policy when the accident occurred, but the court did not discuss use of the vehicle by the injured woman. Id. Thus, Owens *426does not provide a foundation for determining when use begins.

In Detweiler, the court found use where a man was injured by bullet fragments after shooting at his own truck to prevent the truck from being driven off. Detweiler, 110 Wn.2d at 101. Detweiler, however, was decided before this court adopted the Rau factors, and employed a much broader test than is currently used in Washington. Id. at 109 (“it is only necessary that there be a causal connection .... Here, the pickup causally contributed to the claimant’s injuries when the bullets struck the pickup . . . .” (footnote omitted)). In addition to being decided before we adopted the Rau test and employing a different standard, the factual situation present in Detweiler is simply not analogous to the present case. I disagree with the majority’s conclusion that Detweiler provides a sound basis upon which to depart from the factual circumstances of cases applying the Rau test.

In this case, Butzberger was in the course of a journey, his commute to work, when he stopped to check on Foster. The vehicle Butzberger was literally using was the vehicle owned by Cascade Distributing, which is the vehicle he was operating when he came upon the scene of Foster’s accident. In contrast, Butzberger never actually used Foster’s vehicle. While it is reasonable to presume that Butzberger intended to continue his journey in Cascade Distributing’s vehicle after checking on Foster, it is clear that he had no intention of ever making use of Foster’s truck. Even ignoring that Foster’s truck was on its side and could not be driven at all, had Butzberger been able to successfully assist Foster, it would have been Foster, not Butzberger, who would have resumed literal use of Foster’s truck.

Despite the fact that Butzberger had never used, and would never use, Foster’s vehicle, the majority departs from the factual circumstances of prior cases to hold that the Rau test can be used to establish when use begins. I disagree and would hold that the test should be employed exclusively for determining when a break in literal use should still be *427considered use for purposes of UIM coverage and should not be employed to establish use where the party claiming coverage has neither driven nor been a passenger in the vehicle.

Although I would not hold that Butzberger was “using” Foster’s vehicle under the Rau test, entry of summary judgment in favor of Allstate was improper because a material issue of fact exists regarding whether Butzberger was “in” or “on” Foster’s truck. Conflicting evidence was presented to the trial court regarding Butzberger’s physical position with respect to Foster’s truck. The police report and one of the accident witnesses suggest that Butzberger was on or leaning into Foster’s truck. Foster’s declaration, on the other hand, suggests that Butzberger was standing next to the truck. If Butzberger was “in” or “on” Foster’s truck, his estate is entitled to coverage under the plain language of Foster’s insurance policy through Allstate.12 Accordingly, I would remand the case to the trial court for further proceedings on this issue.

Ill

I would reverse the Court of Appeals and affirm the trial court’s ruling that the T.H.E. policy provided UIM coverage for Butzberger. I would remand the case to the Court of Appeals to determine whether T.H.E. established a valid UIM waiver. I would also reverse the entry of summary judgment in favor of Allstate and remand for trial on whether Butzberger was “in” or “on” Foster’s truck.

After modification, further reconsideration denied July 20, 2004.

Rau and the cases cited therein agree that the essential inquiry for determining use is “ ‘the contemplation of the parties in entering into the insurance contract.’ ” Rau, 21 Wn. App. at 332 (quoting Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3, 7, 230 S.E.2d 70, 73 (1976)); see Federated Mut. Implement & Hardware Ins. Co. v. Gupton, 241 F. Supp. 509, 514 (E.D.S.C. 1965) (“ ‘It cannot be said that the employment of the vehicle in such a manner was so unusual as not to have been within the contemplation of the parties to the insurance contract’ ”) (quoting Am. Fire & Cas. Co. v. Allstate Ins. Co., 214 F.2d 523, 525 (4th Cir. 1954)), aff’d, 357 F.2d 155 (4th Cir. 1966); Owens v. Ocean Accident & Guar. Corp., 194 Ark. 817, 109 S.W.2d 928, 930 (1937) (focusing on whether the “transaction ... would fall within the purview of the risk insured against”).

Justice Bridge’s discussion of the “particularized use of the insured vehicle” fails to recognize this important distinction. Concurrence/dissent at 418-19. Instead, the concurrence/dissent leans on the essential transaction factor to lump landscape gardening with stopping to check on the driver of a vehicle overturned in the middle of the roadway. See id. at 418-19; United States Fire Ins. Co. v. Parker, 250 Va. 374, 463 S.E.2d 464 (1995). A factor created to assess the particularized use of a vehicle as an ambulance, garbage truck, or tow truck is not necessary to determine what is in the contemplation of the parties when the injury occurred as part of an activity common to operation of a vehicle as a vehicle, and does not prevent finding a commonsense distinction between drivers that garden by the side of the road and drivers that stop in response to witnessing a motor vehicle accident.

I also agree with the majority’s conclusion that Butzberger was within reasonably close geographic proximity to Cascade Distributing’s vehicle. Butzberger strayed no further from Cascade Distributing’s vehicle than was necessary to check on Foster. While I agree Butzberger satisfies the geographic proximity factor, I share the unease expressed by the court in Booker regarding the delineation of “arbitrary distances.” We have not had occasion to address cases that involve drivers or passengers who travel significant distances down a roadway before sustaining injuries from underinsured or uninsured motorists. See, e.g., Dawes v. First Ins. Co. of Haw., Ltd,., 77 Haw. 117, 883 P.2d 38 (1994) (extending coverage to a passenger struck after walking one mile from a vehicle in search of aid); Falls v. N.C. Farm Bureau Mut. Ins. Co., 114 N.C. App. 203, 441 S.E.2d 583 (1994) (extending coverage to a driver struck after walking one-half mile from vehicle in search of aid). The question of how far is too far is not present, and not decided, in this case.

The Allstate policy covers “[a]ny person while in, on, getting into or out of an insured motor vehicle.” Suppl. Clerk’s Papers at 502.