Use Of Vehicle

A Grand Prairie insurance lawyer needs to be able to hear the facts in a case and compare those facts to the policy and the law. When it comes to how the courts look at situations where “use” of a vehicle is at issue there is a 1994, Dallas Court of Appeals case that is good to know about. The style of the case is, Nationwide Property v. McFarland. Here is the relevant information from that case.
McFarland was working underneath his auto. The car was sitting up on jacks. While McFarland was underneath the car, Mashewske got in the car to see if it would start. When Mashewske shifted the car into neutral, it rolled backward, fell off the jacks, and landed on McFarland. McFarland sustained injuries from the accident.
At the time of the accident, McFarland was covered by an automobile insurance policy issued by Nationwide. The policy covered McFarland, as the named insured, and any other person “using” the covered auto. The policy identified McFarland’s auto as the “covered auto.” McFarland sued Mashewske for negligence. Mashewske tendered his defense to Nationwide, claiming he was entitled to coverage under McFarland’s policy because he was “using” the covered auto at the time of the accident. Nationwide agreed to provide Mashewske’s defense under a reservation of rights.
Nationwide filed this suit against McFarland and Mashewske, seeking a declaration that it had no duty to defend Mashewske in McFarland’s suit. Nationwide maintained that Mashewske was not a “covered person” under McFarland’s policy because Mashewske was not “using” the automobile when he shifted the car into neutral. Nationwide maintained that Mashewske’s actions constituted “maintenance” of the covered auto, not “use.”
McFarland generally denied Nationwide’s allegations and counterclaimed for a declaration that Nationwide had a duty to defend and indemnify Mashewske under McFarland’s policy. Mashewske did the same. Shortly thereafter, Nationwide and McFarland filed cross-motions for summary judgment seeking a declaration of Nationwide’s duties, if any, under the policy.
Nationwide claims that Mashewske’s actions at the time of the accident amounted to “maintenance” of the car rather than “use,” and it therefore had no duty to defend Mashewske under the terms of the policy. Nationwide’s policy specifically covered, as omnibus insureds, only those persons “using” the covered auto.
McFarland makes three arguments in response. First, Nationwide’s narrow interpretation of the term “use” directly conflicts with the policy expressed in the Texas Safety Responsibility Act. Second, Nationwide’s attempt to qualify the term “use” constitutes an impermissible attempt to insert an implied exclusion in the policy. Finally, the term “use” is susceptible to more than one reasonable interpretation in this case, and the term must therefore be construed to provide coverage for Mashewske as an insured.
The insurance policy in effect between Nationwide and McFarland at the time of the accident stated, in pertinent part, that:
Nationwide will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident…. Nationwide will settle or defend, as Nationwide considers appropriate, any claim or suit asking for these damages. In addition to Nationwide’s limit of liability, Nationwide will pay all defense costs Nationwide incurs. Nationwide’s duty to settle or defend ends when Nationwide’s limit of liability for this coverage has been exhausted.
The policy defines “covered person” as the named insured or any family member of the named insured for the ownership, maintenance or use of any auto and any person using the named insured’s covered auto. Thus, the policy contains the usual omnibus provision extending coverage to all those using the covered auto.
Mashewske was neither the named insured under the policy nor a family member of the named insured. Thus, Mashewske must have been “using” McFarland’s car at the time of the accident to be covered under McFarland’s policy. Whether Mashewske’s actions amounted to use of the vehicle is the precise question that must be resolved in this appeal.
The term “use” under an automobile insurance policy has been described as the general catchall of an omnibus insurance clause, designed and construed to include all proper uses of the vehicle not falling within other terms of definition such as ownership and maintenance. The terms “maintenance” and “use” are distinct terms in an automobile insurance policy.
Black’s Law Dictionary defines “use” as: “converting to one’s service, to employ, to avail one’s self of.” Although the parties have not cited us to any case where a Texas court has defined the term “use” in the context here addressed, other jurisdictions have defined the term in the context of an automobile insurance policy as the “employment of a vehicle as a means of transportation, or some other purpose incident to transportation.”
The term “maintenance” has been described by the Texas Supreme Court as including all acts which come within its ordinary scope and meaning. To “maintain” means to preserve or keep in an existing state or condition and embraces acts of repair and other acts to prevent a decline, lapse, or cessation from that state or condition. To determine whether a particular act constitutes “use” as opposed to “maintenance,” courts generally look to the purpose behind the injury-causing act.
McFarland’s petition specifically alleges that Mashewske was negligent in “manipulating the controls” of McFarland’s car while McFarland lay underneath the car. While McFarland contends Mashewske’s “manipulation” of the controls amounted to “use” of the covered auto, this court did not agree. Their review of the language used in the Nationwide policy, as well as the relevant case law construing similar provisions, convinced it that Mashewske was not in fact “using” the car at the time of the accident.
The Texas Supreme Court recognized the difference between the terms “maintenance” and “use” in another decision. In that case, the court considered whether a gas station attendant’s actions in refueling an automobile constituted “use” of the automobile such that the attendant was entitled to coverage under the automobile owner’s insurance policy. The policy in that case, like the one in the instant suit, provided coverage for the named insured as well as all those “using” the covered auto with the owner’s permission. In concluding that the attendant was not covered by the policy at issue, the Texas Supreme Court drew a distinction between activities which constituted “use” of an automobile and those which constituted “maintenance.” The court stated:
It appears inescapable that the replacement of fuel which has been exhausted with use and without which a motor vehicle is inoperative, is a species of maintenance in the same sense as repairing the carburetor as a part of the fuel system, or inflating a flat tire, or changing the oil in the crankcase of the engine. The only purpose of the act of refueling by Western was to capacitate the Liggett vehicle to perform its transportation functions. This act, standing alone, constituted “maintenance” of the vehicle and was a distinct relationship expressly included within the terms of the insuring clause but excluded, by its omission, from the coverage of the omnibus clause.
Under the circumstances of this particular case, Mashewske’s actions constituted “maintenance” of the car, not “use.” The petition filed against Mashewske indicates that at the time of the accident, McFarland was working underneath the car. The petition states that McFarland allowed Mashewske to enter the car to “manipulate its controls” while he was underneath the car and the car was up on jacks. Mashewske’s actions in “manipulating” the car’s controls while McFarland lay underneath the car could only have been intended to assist McFarland in the maintenance of the car. Thus, Mashewske’s actions formed an integral part of the overall maintenance being performed on the vehicle.
For the reasons stated, the court concluded Mashewske was not a “covered person” under McFarland’s policy and Nationwide therefore had no duty to defend Mashewske in the underlying action brought by McFarland.

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