                                                                   2014 WI 36

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:                2012AP1644
COMPLETE TITLE:          Rachelle R. Jackson,
                                    Plaintiff-Appellant,
                              v.
                         Wisconsin County Mutual Insurance Corp.,
                                    Defendant-Respondent-Petitioner,
                         Daniel P. Lynch and Patrick A. Lynch,
                                    Defendants.


                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 348 Wis. 2d 203, 832 N.W.2d 163
                                    (Ct. App. 2013 – Published)
                                       PDC No: 2013 WI App 65

OPINION FILED:           June 10, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           March 13, 2014

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Milwaukee
   JUDGE:                William Sosnay

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:    PROSSER, J., did not participate.

ATTORNEYS:
       For the defendant-respondent-petitioner, there were briefs
by Lori M. Lubinsky, Timothy M. Barber, and Axley Brynelson,
LLP, Madison, and oral argument by Lori M. Lubinsky.


       For    the       plaintiff-appellant,   the   cause   was   argued   by
Christopher L. Strohbehn, with whom on the brief was D. Michael
Guerin, Kathryn A. Keppel, and Gimbel, Reilly, Guerin & Brown
LLP, Milwaukee.
    An amicus curiae brief was filed by     James A. Friedman,
Dustin B. Brown and Godfrey & Kahn, S.C., Madison, on behalf of
the Wisconsin Insurance Alliance.




                                2
                                                                              2014 WI 36
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.     2012AP1644
(L.C. No.     2011CV1407)

STATE OF WISCONSIN                                  :            IN SUPREME COURT

Rachelle R. Jackson,

               Plaintiff-Appellant,

       v.                                                                   FILED
Wisconsin County Mutual Insurance Corporation,
                                                                      JUN 10, 2014
               Defendant-Respondent-Petitioner,
and                                                                      Diane M. Fremgen
                                                                      Clerk of Supreme Court

Daniel P. Lynch and Patrick A. Lynch,

               Defendants.




       REVIEW of a decision of the Court of Appeals.                     Reversed.



       ¶1      N. PATRICK CROOKS, J.           This case concerns Rachelle

Jackson, a Milwaukee County sheriff's deputy who seeks coverage

under her employer's underinsured motorist policy.                           The policy

pays    sums    owed   by    an   underinsured      tortfeasor         to    an   insured

person who is injured while "using                   an automobile           within the

scope    of    his   or     her   employment   or       authority."         The     policy

defines "using" by saying it "has the meaning set forth in Wis.
                                                              No.    2012AP1644



Stat.       § 632.32.(2)(c)"1   and    "includes      driving,      operating,

manipulating, riding in and any other use."             This case turns on

whether Jackson was "using an automobile" when she was injured.

       ¶2     Jackson was injured while on duty by a driver to whom

she had just given directions.        The driver hit her as she walked

in front of the car after she stated that she would "help [the

driver] get in traffic."        Jackson argues that under the policy's

definition of "using an automobile" and under case law broadly

construing the word "using," her actions with regard to the

vehicle that hit her constituted using the vehicle because she

was in essence controlling the vehicle.               She testified in her

deposition that at the time she was hit, she had already "asked"

the driver to pull into the parking lane to speak with him, had

spoken with him, and had started to "go in front of the car,

walk in the walkway"         when the driver pulled forward and hit

her.       She argues that the accident occurred while she was in the

process of "manipulating" the car or while she was making some

"other use" of the car.          There is no assertion that she had
stopped traffic or was guiding the driver into traffic at the

time of the accident.

       ¶3     To determine the meaning of the insurance contract, we

first look at the policy language itself.             We then turn to prior

Wisconsin      cases   interpreting   the   statute    and   similar   policy


       1
       This statute is now numbered Wis. Stat. § 632.32 (2)(h)
(2011-12); it states, "'Using' includes driving, operating,
manipulating, riding in and any other use."    All references to
the Wisconsin Statutes are to 2011-12 unless otherwise noted.

                                      2
                                                                No.     2012AP1644



language,       insurance     treatises,      and     cases      from       other

jurisdictions construing the same type of policy language.                     We

conclude that Jackson cannot recover because the actions she

took with regard to the vehicle that hit her do not constitute

using     a    vehicle   in    any   way    that      is    consistent       with

interpretations of "use" in Wisconsin case law or with those of

cases from other jurisdictions.

     ¶4       Even   though   Wisconsin    courts    have   given     the    word

"using," in the context of insurance policies, quite a broad

definition, the definition has limits.              See Progressive N. Ins.

Co. v. Jacobson, 2011 WI App 140, ¶12, 337 Wis. 2d 533, 804

N.W.2d 838 ("Though 'use' is a broad term and is given a liberal

construction, it is not without limitation.");                see also Tomlin

v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis. 2d 215, 225,

290 N.W.2d 285 (1980) (finding "arising out of use of vehicle"

policy language precluded coverage for state patrolman who was

injured by driver after a traffic stop).

     ¶5       Other Wisconsin case law construing the phrase "using
an automobile" or similar phrases in the context of an insurance

policy applies an understanding of "use" that is consistent with

an insurance treatise definition: "employment for the purposes

of the user."2       This broad definition helps to define the limits

of "use" and further supports our conclusion that Jackson's acts

with regard to the vehicle that hit her were not done while she

was employing the car for any purpose.          When we review the types

     2
         8 Couch on Insurance § 119:37 (3d ed. 2005).

                                      3
                                                                       No.    2012AP1644



of purposes for which vehicles have been employed, we find none

in which the control or use of the vehicle is as attenuated as

it is here, given that at the time of the accident, Jackson had

not begun to guide the vehicle into traffic.

       ¶6         However, even though we can draw some general guidance

from our cases, we recognize that no Wisconsin case directly

applies because none has addressed use of a vehicle premised on

the person's guiding of the driver.                    Garcia v. Regent Insurance

Company,3 the case on which the court of appeals relied, held

that       "a   driver's   gesture    and       call    to    invite   and    assist   a

passenger to enter a vehicle is part of the inherent use of a

vehicle," but that case is easily distinguishable.                         Neither its

facts (a driver calling and gesturing to a child passenger), nor

its analysis (whether a driver's "collateral[] involve[ment]" in

a passenger's getting in and of a car is part of its inherent

use),       nor    its   conclusion   (that       inherent      use    encompasses     a

driver's        helping    a   passenger        who    is    "boarding")     bears   any

relation to the question presented in this case concerning a
person outside a vehicle who purports to be using the vehicle by

guiding it.

       ¶7         No Wisconsin court has addressed a case involving a

non-driver who is preparing to guide, but not yet guiding, a

vehicle driven by another.            Courts from other jurisdictions have

considered guidance cases.            It is clear that permitting recovery


       3
       Garcia v. Regent Ins. Co., 167 Wis. 2d 287, 481 N.W.2d 660
(Ct. App. 1992).

                                            4
                                                                      No.    2012AP1644



by Jackson would not be consistent with interpretations of those

courts.       Treatises recognize that under some circumstances a

person directing a car from outside the vehicle may be using the

vehicle within the meaning of insurance policy language.

      ¶8      Holdings from these cases and holdings in Wisconsin

cases are based on the same principles for construing insurance

policies, and we find them helpful.                A review of those cases4 is

helpful      because    it   reveals    what   a    "using      by    guiding"      case

requires:      "For example, where 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."5

      ¶9      By comparison to that scenario, Jackson's testimony

was   that    the     accident   happened     before    she   went     to    stop    the

traffic: "I looked at [the driver] when I walked——as I was going

      4
       A representative example from this line of cases is one in
which a man helped a tractor-trailer driver back a truck up on a
worksite.   The court's conclusion was based on the following
reasoning:

      [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
      . . . .

Slagle v. Hartford Ins. Co., 594 S.E.2d 582, 587 (Va. 2004).
      5
          8 Couch on Insurance § 111:39 (3d ed. 2005).

                                          5
                                                                 No.    2012AP1644



in front of the car, but after that I was looking at the traffic

to see when it was safe for me to walk out and to stop it so I

could    help    him   get   in    [to    the   lane    of   moving    traffic]."

Jackson, by her own undisputed testimony, was not controlling

the car at the time of the accident and had not, in fact, begun

to guide the vehicle into traffic.

     ¶10    We conclude that Jackson was not using the vehicle at

the time of her injury, and we therefore reverse the court of

appeals.6

                                  I.     BACKGROUND

     ¶11    Jackson's        deposition         testimony      regarding      the

circumstances of the accident can be summarized briefly.                      She

was on duty on a sidewalk at the Milwaukee airport when a lost

motorist pulled up near her and asked how to get to a specific

hotel.     She "asked him if he could pull over to the curb," which

he did; then she bent down to speak into the window, standing

one or two feet away from the car, and answered his question.

The driver and passenger said they had gotten lost and ended up
at the airport after a long drive.                     After Jackson gave the

directions to the hotel, the driver asked, "How am I going to

get back in traffic?" Jackson said she responded, "I'll go in

front of your car, and I'll come around and help you get in

traffic."       As Jackson walked on the pedestrian walkway in front

of the car, the car "move[d] three or four feet" at about five


     6
       Jackson v. Wis. Cnty. Mut. Ins. Corp., et al., 2013 WI App
65, ¶7, 348 Wis. 2d 203, 832 N.W.2d 163.


                                           6
                                                                   No.     2012AP1644



miles per hour and hit her.                   She described the accident as

follows:

    [A]s soon as I get in front of the car, like, midway,
    I feel a hit or a tap on my leg . . . . I'm thinking
    to myself, "Did I just get hit?" And I put my hands on
    the . . . hood of the car, raise up my left leg
    because I'm trying to jump out of the way of the car.
    The right leg hit – as I go on the side of the car – I
    said, "You realize you just hit me. Park the car."


    ¶12     The accident report states that Jackson "was helping

[the vehicle] with directions and walked into the crosswalk with

flashing stop sign to stop traffic when [the vehicle] attempting

to enter traffic struck the deputy almost knocking her down."

    ¶13     Jackson brought this action against several parties,

including     her    employer's        insurer,    Wisconsin      County     Mutual

Insurance Corporation (WCMIC), which had issued a public entity

liability insurance policy that, under an endorsement, provided

underinsured motorist benefits to Milwaukee County deputies.

    ¶14     WCMIC moved for summary judgment on the ground that

Jackson    was   not    "using   an     automobile"    at   the    time     of   the

accident, as its policy requires for coverage.                    The Milwaukee

County     Circuit     Court,    the     Hon.     William   Sosnay       presiding,

acknowledged that "there is not a lot of case law on this" and

granted summary judgment to the insurer, holding that "the court

would be stretching the law to allow for coverage based upon the

conduct and the facts as they have been presented . . . ."


                                          7
                                                                               No.    2012AP1644


       ¶15    The court of appeals reversed, relying principally on

language      from       Garcia.      That       case——which           involved       a     driver

sitting      in    the    driver's       seat       in    his    car,    motioning          to    an

intended passenger, a child, across the street——stated that the

driver's      conduct,         consisting       of       "verbal    cues       and    [a]    hand

gesture," constituted "use" of the vehicle within the meaning of

the insurance policies, and that "[the driver,] while tending

the vehicle with engine running, . . . called and gestured to

[his approaching passenger] to get into the car."                                    Garcia v.

Regent Ins. Co., 167 Wis. 2d 287, 296, 300, 481 N.W.2d 660 (Ct.

App.    1992).           The    Garcia     court         considered       "invit[ing]            and

assist[ing] a passenger to enter a vehicle" to be "part of the

inherent      use    of     a    vehicle"       because         vehicles       are    used        to

transport         passengers.       Id.         Garcia          also    reiterated           prior

Wisconsin case law holding that an insured does not "have to be

in direct physical contact with the vehicle to be using it." Id.

at 296.

       ¶16    Citing       Garcia's       language,         along       with    the       general

principle     that       coverage     clauses        are     broadly       interpreted           "to

afford the greatest protection to the insured," id. at 294, the

court of appeals concluded that "'manipulating' combined with

'and any other use' encompasses Jackson helping the underinsured

driver to safely re-enter traffic." Jackson v. Wis. Cnty. Mut.



                                                8
                                                      No.   2012AP1644


Ins. Corp., et al., 2013 WI App 65, ¶7, 348 Wis. 2d 203, 832

N.W.2d 163.

    II.     STANDARD OF REVIEW AND PRINCIPLES OF INTERPRETATION

    ¶17     "[W]hether an insurance policy affords coverage . . .

[is a] question[] of insurance contract interpretation subject

to de novo review."     1325 N. Van Buren, LLC v. T-3 Grp., Ltd.,

2006 WI 94, ¶23, 293 Wis. 2d 410, 427-28, 716 N.W.2d 822.         "The

same rules of construction that govern general contracts are

applied to the language in insurance polices.         An insurance

policy is construed to give effect to the intent of the parties

as expressed in the language of the policy."     Folkman v. Quamme,

2003 WI 116, ¶12, 264 Wis. 2d 617, 665 N.W.2d 857.          Here, we

focus on a phrase that limits who is an insured for purposes of

an underinsured motorist endorsement.     We start with the premise

that the proper interpretation of that phrase has to be one that

gives it effect and recognizes that it is intended to draw a

line between who is covered and who is not covered.

    ¶18     This case comes to us following a grant of summary

judgment.

    We review a grant of summary judgment de novo, relying
    on the same methodology as the circuit court. Summary
    judgment is proper where the record demonstrates that
    there is no genuine issue as to any material fact and
    that the moving party is entitled to judgment as a
    matter of law.
Schinner v. Gundrum, 2013 WI 71, ¶¶35-36, 349 Wis. 2d 529, 833
N.W.2d 685 (internal citations omitted).

                                  9
                                                                         No.     2012AP1644



                                    III. DISCUSSION

     ¶19       To   be   an   insured    under         Section   II.B.    of     the    UIM

endorsement,        Jackson     must    meet     three       requirements.         It   is

undisputed that she meets the first two: that she was an insured

under    the    policy    and   that    she      was    within   the     scope    of    her

employment.         The sole question we address7 is whether Jackson was

"using     an       automobile"        and,      therefore,       met      all      three

requirements.         The contested language we will focus on is found

in   sections        II.B.    and    V.C.      of      the   Underinsured        Motorist

Endorsement to the policy:

     I.    Insuring agreement
     A. We will pay all sums the insured is legally entitled to
        recover as monetary damages from the owner or driver of
        an underinsured motor vehicle because of bodily injury.
        The bodily injury must be sustained by the insured and
        must be caused by an accident. The owner's or driver's
        liability for the damages must result from the ownership,
        maintenance or use of the underinsured motor vehicle.
        . . .
     II. Who is an insured
     . . .
     B. Any person qualifying as an insured under the Who Is an
        Insured provision of the policy while using an automobile
        within the scope of his or her employment or authority.
        . . .
     V. Definitions
                . . .



     7
       WCMIC raises a second argument against coverage: that
"[t]he clear intent of the UIM endorsement is to provide
coverage   to  someone   'using'  a   vehicle other  than  the
underinsured vehicle involved in the accident." Pet'r's Br. at
35. Because we resolve this case on the first issue raised, we
need not address the alternative argument.

                                            10
                                                               No.   2012AP1644


     C. 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.


(Emphasis added. Capitalization omitted.)

     ¶20   "Using"    is   defined    in   the   endorsement   as    including

"driving, operating, manipulating, riding in and any other use."

No party asserts that Jackson was driving, operating or riding

in the vehicle.      In order for Jackson to satisfy the requirement

of "using an automobile," therefore, her actions at the time the

accident   occurred    must   be     categorized    as   "manipulating"     an

automobile or as an "other use" of an automobile.8

     ¶21   Jackson describes the accident in the context of the

whole encounter with the driver, starting with the direction to

the driver to pull to the curb and ending with the final order

to park the car after the accident occurred.             She argues 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, and she cites to a

dictionary definition of "manipulate" as meaning "control."                She

argues that her stepping in front of the vehicle was a part of

the process that began when she indicated to the driver that he

     8
       We observe that the definition of "using" employed here
could be claimed to be open-ended because it states that the
word "includes" certain activities without expressly limiting
its meaning to those activities. Jackson's arguments, however,
do not turn on this aspect of the definition.

                                      11
                                                                          No.        2012AP1644


needed to pull over to the curb and would have lasted through

the point when she helped him pull back into traffic and drive

away.

       ¶22     In support of her position, she cites the language

"any other use" as signifying a recognition that there are more

kinds of uses than those enumerated.                   She also points to cases

that    have     broadly   construed        policy   language      requiring,            as    a

condition of coverage, that an injury arise out of the use of a

vehicle.       For example, in Lawver v. Boling, 71 Wis. 2d 408, 412,

238 N.W.2d 514 (1976), the plaintiff was injured after a fall

from a pulley-operated lift that was tied to the defendant's

pickup    truck.        Plaintiff's       injury     was    deemed    to        be    "bodily

injury . . . arising        out      of   the . . . use       of     an    automobile."

Id.      This     was   based   on    the    fact    that    the     court       found        it

reasonable to expect that a pickup truck in a farm setting "will

be put to a variety of uses beyond the ordinary transportation

of persons and goods from place to place."                    Id. at 416.             Jackson

also points to Garcia, 167 Wis. 2d at 291-92, in which the court

of appeals considered whether the injuries to a child who had

been hit by a passing car were injuries "arising out of" the use

of the insured's vehicle. The driver had gone "to the park to

find [the child]" and, sitting in the driver's seat of his car,

beckoned the child to cross the street by "gestur[ing] with his

hand     . . .     that it was all right for her to come" with her

                                            12
                                                                            No.    2012AP1644


mother    in    the     car    for   a   trip       to   the    grocery.          The   court

concluded that the injuries arose from "use" of the vehicle,

reasoning that the driver's communication to the child was an

expected       part    of     picking    up     a    passenger,       and    transporting

passengers was, in turn, an expected use of a vehicle:

    The jeep in this action is designed to, among other
    things, carry passengers. Within the reasonable ambit
    of such use are the necessary incidental activities of
    boarding and alighting and the reasonable expectation
    that, in certain instances, the operator may be
    collaterally involved in such activity.

Id. at 297-98.              In language that Jackson cites as relevant to

this case, the court stated that the driver's "call and gesture

to [the child] constituted 'use' of the vehicle . . . ." Id.

    ¶23        On     the    other   hand,         WCMIC    characterizes         Jackson's

actions as helping the occupants of the vehicle rather than

controlling or manipulating the vehicle's movements, and notes

that at the time of the accident Jackson was simply walking in

the pedestrian walkway in front of the vehicle, not gesturing or

waving.    It points out that the cases on which Jackson relies

construe   broader          policy   language        than      the   language      at   issue




                                              13
                                                     No.   2012AP1644


here.9    The policy terms in those cases state that the insured is

covered for damages "arising out of the use of" a vehicle.      That

language differs in two ways from the relevant language in this

case: first, it includes the expansive phrase "arising out of,"10

and, second, it requires "use of" a vehicle without limiting

whose use it must be.    Unlike that language, the language of the

endorsement at issue here specifically defines an insured for

purposes of UIM endorsement coverage as an insured "while using

an automobile," a formulation that requires the insured to be




     9
       For example, Garcia involved two policies, one of which
covered "damages arising out of the . . . use of a car." Garcia
167 Wis. 2d at 292. See also Lawver v. Boling, 71 Wis. 2d 408,
415, 238 N.W.2d 514 (1976) (policy at issue "provides coverage
for injuries arising out of the use of an automobile") and
Tomlin v. State Farm Mut. Auto. Liab. Ins. Co., 95 Wis. 2d 215,
218, 290 N.W.2d 285 (1980) (policy would pay damages for
accident "arising out of the . . . use . . . of the owned motor
vehicle").
     10
       "As used in a liability insurance policy, the words
'arising out of' are very broad, general and comprehensive.
They are commonly understood to mean originating from, growing
out of, or flowing from, and require only that there be some
causal relationship between the injury and the risk for which
coverage is provided." Lawver v. Boling, 71 Wis. 2d at 415.

                                 14
                                                                             No.     2012AP1644


the user of the vehicle.11              WCMIC therefore argues that this case

is   distinguishable            from   the     cases     Jackson      cites    because      it

involves narrower policy language.

       ¶24   WCMIC       also    distinguishes          this   case    from        cases   from

other jurisdictions where, in the context of insurance coverage

disputes or sovereign immunity claims, "use" of a police vehicle

has been found even when law enforcement officers were on foot

directing traffic, so long as their nearby vehicles were part of

the traffic management activity.                    See, e.g., Maring v. Hartford

Cas. Ins. Co., 484 S.E.2d 417, 420 (N.C. Ct. App. 1997) (officer

standing     in   intersection          directing       traffic      was   using      vehicle

when    lights     and    sirens       were    activated       and    police       radio   was

turned up so he could communicate from outside the vehicle);

Argonaut Ins. Co. v. Jones, 953 N.E.2d 608, 612, 622 (Ind. Ct.

App.    2011)     (placing       police       vehicle    in    the    lane    of     highway,

leaving the engine running, and activating the emergency lights

on her vehicle to redirect traffic was using vehicle "for one of

its intended purposes"); Oberkramer v. Reliance Ins. Co., 650

       11
       As to the difference between the phrases "arising out of
the use of" and the "while using an automobile," it has been
explained that the former "describes the accidents for which
coverage would be afforded an insured under the policy and
relates to coverage of the event causing injury" and the latter
"describes who is an insured and relates to coverage of a
particular person." 34 Am. Jur. 2d Proof of Facts § 585 (1983),
citing W. Cas. & Sur. Co. v. Crawford, 635 F.2d 667, 670 n.2
(8th Cir. 1980). This case relates to the question of coverage
of a particular person.

                                               15
                                                                No.     2012AP1644


S.W.2d 300, 302-03 (Mo. Ct. App. 1983) (officer who was standing

away from his vehicle while it was parked across road in road

block with lights activated was using vehicle); Great Am. Ins.

Co. v. Cassell, 389 S.E.2d 476, 477 (Va. 1990) (similar holding

regarding fire truck use).           Though Jackson is a law enforcement

officer,   these    cases     provide    no   relevant      guidance    for     the

question presented by this case, because they concern coverage

based on the use of the law enforcement vehicle.                  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.




                                        16
                                                                No.   2012AP1644


      ¶25    The parties' differing views of the meaning of the

word "using" in the context of an insurance policy boil down to

this.      Jackson can cite numerous cases where Wisconsin courts

have interpreted "using a vehicle," for purposes of insurance

coverage, to include activities that are not what the ordinary

person would necessary call using a vehicle. In some of these

cases, the person who sought to invoke coverage was not driving

or touching the vehicle.           WCMIC, while it does not seek to

overturn Garcia or any cases relied on by Jackson, points out

that on the facts of this case, we are past the outer limits of

what "using a vehicle" can be understood to mean because no case

so   far    has   found   "use"   by   a    person   in   Jackson's   type   of

circumstances, and to do so would vastly expand coverage.

      ¶26    Progressive Northern      Insurance     Company,    337 Wis. 2d

533, ¶18, summarizes the "use" cases briefly:

      These activities [deemed to be "use"] can range beyond
      ordinary transportation, but generally involve some
      closely related activity. See Thompson [v. State Farm
      Mut. Auto. Ins. Co.], 161 Wis. 2d at 458–59[,] [468
      N.W.2d 432 (1991),] (insurer could reasonably expect
      that a truck might be used for hunting, and that a
      hunter might use the truck bed as a platform from
      which to hunt); Lawver [v. Boling], 71 Wis. 2d 411,
      416[,] [238 N.W.2d 514 (1976)] (raising and lowering a
      platform using a truck and pulley constitutes "use" of
      the vehicle); Allstate Ins. Co. v. Truck Ins. Exch.,
      63 Wis. 2d 148, 158, 216 N.W.2d 205 (1974) (reasonable
      and expected "use" of a van includes loading and
      unloading hunting equipment); Trampf [v. Prudential
      Prop. and Cas. Co., 199 Wis. 2d [380] at 389, [544
      N.W.2d   596   (Ct.   App.   1995)]  ("use"   includes
      transportation of dogs in the bed of a vehicle);

                                       17
                                                                           No.     2012AP1644


      Garcia, 167 Wis. 2d at 297–98, 481 N.W.2d 660
      (driver's call and gesture to pedestrian subsequently
      hit while crossing the street a "use" of the vehicle);
      Tasker v. Larson, 149 Wis. 2d 756, 761, 439 N.W.2d 159
      (Ct. App. 1989) (leaving a child in a vehicle during a
      brief errand reasonably consistent with inherent
      nature of vehicle).

      ¶27    Jackson       relies     especially       on   the    Garcia        case.     In

essence, she analogizes the facts in that case to the facts of

this case: if it is "using a vehicle" for a driver sitting

inside a vehicle to call and gesture to an intended passenger

outside     the    vehicle     to    direct     the    passenger     to     come    to   the

vehicle, then it is "using a vehicle" when a person outside the

vehicle speaks and gestures to the driver.                         We note here that

Jackson's     deposition            testimony     contained        no      reference       to

gesturing to the driver at any point.                       She did state that she

was   planning       "to     stop    traffic,"        but   in    fact     the     accident

occurred before she did so.

      ¶28    We     turn     to     Wisconsin     case      law     that     deals       with

construing        language    similar     to    the     "while      using    a     vehicle"

phrase in the endorsement.               It is evident that "use" has been

broadly construed on occasion.                  Nevertheless, as we have noted

previously,       the   word's       meaning    "is     not      without    limitation,"

Progressive N. Ins. Co., 337 Wis. 2d 533, ¶12, and the cases "do

not suggest that the term 'use' must be read so expansively as

to include a boundless number of activities."                        Garcia, 167 Wis.

2d 287 at 296.

                                           18
                                                                       No.    2012AP1644


      ¶29     Both   the   circuit       court     and    the   court    of     appeals

correctly stated that this case did not have any clear Wisconsin

precedent.       The circuit court stated, "There is not a lot of

case law on this."         The court of appeals stated, "No Wisconsin

published     decision     has    set    the    parameters      of    what    the   word

'manipulating' . . . and [']any other use' means in the context

of this case." Jackson, 348 Wis. 2d 203, ¶8.

      ¶30     The courts below were correct that this scenario has

not been addressed in Wisconsin in a "using a vehicle" case.

Nevertheless, a review of what constitutes "use" in Wisconsin

case law is a good place to start.                 As we will see, these cases

are consistent with a broad definition of "use" given in an

insurance      treatise:         "The    term    'use'    is    a    broad    catchall

designed to include all uses of the vehicle not falling within

the   terms    'ownership'       or     'maintenance,'      and      involves   simply

employment for the purposes of the user."                  8 Couch on Insurance,

§ 119:37 (3d ed. 2005).

      ¶31     In Lawver we recognized the "range of reasonable uses"

to which a vehicle may be put:              "It is reasonably to be expected

that [the vehicle] will be put to a variety of uses beyond the

ordinary      transportation      of     persons    and    goods      from    place   to

place."     Lawver, 71 Wis. 2d at 416.              The concept of "employment

for the purposes of the user" is not explicit but is implicit in

each of the cases.

                                           19
                                                               No.   2012AP1644


     ¶32    In Lawver, the vehicle was being put to use "as a

power source in performing necessary farm repairs," or, stated

more simply, it was used to pull a rope attached to a lift.12               In

Tasker, the truck was used, "for safety as well as convenience,"

as a place to leave a small child.13         In Thompson, the bed of the

pickup    was   used,   as   a   special   permit   allowed,    as   a   "flat

elevated surface from which to hunt" for the convenience of

disabled hunters.14     In Trampf, the vehicle was used to transport

dogs.15    In Allstate, the vehicle was used to transport "rifles,

ammunition, and supplies" on a hunting outing.16           In Garcia, the

vehicle was used to carry passengers, which, the court reasoned,

meant that it was sometimes used by the operator while calling

and gesturing to passengers who were "boarding and alighting."17

     ¶33    Jackson's    actions    with   regard   to   the    vehicle    and

driver were not employing the vehicle for Jackson's purposes;


     12
       Lawver v. Boling, 71 Wis. 2d 408, 411, 416, 238 N.W.2d
514, 516, 518 (1976).
     13
       Tasker v. Larson, 149 Wis. 2d 756, 761, 439 N.W.2d 159,
161 (Ct. App. 1989).
     14
       Thompson v. State Farm Mut. Auto. Ins. Co., 161 Wis. 2d
450, 459, 468 N.W.2d 432, 435 (1991).
     15
       Trampf v. Prudential Prop. and Cas. Co., 199 Wis. 2d 380,
390, 544 N.W.2d 596 (Ct. App. 1995).
     16
       Allstate Ins. Co. v. Truck Ins. Exch., 63 Wis. 2d 148,
158, 216 N.W.2d 205, 210 (1974).
     17
          Garcia, 167 Wis. 2d at 298.

                                      20
                                                                No.   2012AP1644


thus, from the outset, this case differs from "the variety of

uses" that our case law has recognized.                 It is reasonable to

conclude that Jackson was not "using" the vehicle involved here.

    ¶34      Garcia does not compel a contrary result.                It simply

does not follow from the reasoning in that case that a non-

passenger standing outside the vehicle who speaks to the driver

is using a vehicle in the same way as a driver sitting inside a

vehicle who calls and gestures to an intended passenger outside

the vehicle.      Even if it did, to apply Garcia in that fashion to

this case would ignore the fact that there is no indication

whatsoever in the record that Jackson gestured to the driver

here.     The most that can be said is that when the accident

happened, Jackson had just told the driver she was about to stop

traffic and "help" the driver "into traffic," but she had not

yet begun to do so.

    ¶35      Whether   a   person    getting   ready    to   direct   a   driver

where   to   go   is   using   the   vehicle   within    the   meaning    of   an

insurance policy, such as the one at issue here, is a question

that has not been clearly put to courts in other jurisdictions.

In Couch on Insurance, Section 111:39, it states, however, that

"a person may be considered to be 'using' a vehicle for purposes

of an omnibus clause by guiding or giving signals to the actual

operator of a vehicle."        8 Couch on Insurance, § 111:39.



                                       21
                                                               No.     2012AP1644


      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.
Id.

      ¶36   Such a rule is not inconsistent with our holdings in

prior   cases,      such   as   the   holding    that   "[n]either    does   the

insured have to be in direct contact with the vehicle to be

using it."       See Garcia, 167 Wis. 2d at 296 (citing Tasker v.

Larson, 149 Wis. 2d 756, 761, 439 N.W.2d 159 (Ct. App. 1989)).

However, cases from other jurisdictions clearly do not support

the application of such a rule on these facts.                The gap between

what constitutes "using by guiding" and the facts present here

becomes     clear     as   one    reviews       the   facts   of     the   other

jurisdictions' "controlling the vehicle" cases.

      ¶37   The courts determining whether a person was "using by

guiding" have focused on how much control the driver of the

vehicle was ceding to the person who was acting as a guide.                  For

example, where       a man helped a tractor-trailer driver back a

truck up on a worksite, the court reasoned that

      [the]   hand  signals   to  the   driver  effectively
      determined the direction and movement of the tractor-

                                        22
                                                                No.     2012AP1644


    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
    . . . .

Slagle v. Hartford Ins. Co., 594 S.E.2d 582, 587 (Va. 2004).

Where a case similarly involved "active control or guidance of a

backward movement of a truck," the signaler was deemed to have

"used" the truck because he had "participate[d] in the operation

of the truck to such an extent as to be a User of the vehicle."

Woodrich Const. Co. v. Indemnity Ins. Co., 89 N.W.2d 412, 418-

419 (Minn. 1958).        In another case, the court relied on "[t]he

undisputed fact[] . . . that Hill was placed in the following

flag car with a radio in order to communicate with the driver of

Dorwin's    truck    because   the    latter   could   not   see      the   boom's

position from inside the truck." Insurance Co. of N. Am. v.Royal

Globe Ins. Co., 631 P.2d 1021, 1023 (Wash. Ct. App. 1981).                      It

therefore    concluded    that   the     person     communicating      with    and

guiding the truck was "using" the truck within the meaning of

the relevant language.         Id.     In reaching that conclusion, the

court noted that it was indistinguishable from another case,

Liberty     Mutual   Insurance       Company   v.   Steenberg      Construction

Company, 225 F.2d 294 (8th Cir. 1955):


    Steenberg was an action by a general contractor
    against a subcontractor's insuror . . . .      The
    subcontractor was supplying mixed concrete for the

                                        23
                                                                  No.    2012AP1644


      general contractor's use in laying a floor. An
      employee of the general contractor signalled the
      subcontractor's truck driver while backing up, and the
      cement truck struck and injured a third person . . . .
      The [appellate court affirmed the] trial court,
      [which] . . . held that the active directing by the
      general contractor of the backward movement of the
      truck and the following by the subcontractor's driver
      of the signals given to him both activities having
      been performed as incidents to the construction work
      made the participation of the general contractor such
      a part of the actual operation of the truck as to
      constitute the contractor's using the automobile
      within the meaning of the omnibus clause.

631 P.2d 1021, 1022-23 (emphasis added).

      ¶38    As one court noted,

      It is difficult and probably impossible to formulate
      an exact measure of the degree of control which a
      person not owning or driving the 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.

Hake v. Eagle Picher Co., 406 F.2d 893, 895, 896 (7th Cir. 1969)

(citing a case in which a property owner had been deemed to be

using     the   automobile     within     the    meaning     of   an    automobile

liability policy "where by signalling directions to the driver

the     owner   of   the    premises     or     his   employee    has    exercised

immediate control over the movement of the automobile").

      ¶39    However, this case does not reach the level of a close

case because everything relevant to this case happened before

Jackson     began    to    guide   the   vehicle.       To   revisit     Jackson's

                                         24
                                                      No.   2012AP1644


description of what she did with regard to the vehicle that hit

her, recall that she stated that she "asked [the driver] if he

could pull over to the curb," then bent down to speak into the

window, standing one or two feet away from the car, and answered

his question.    After that, the driver asked, "How am I going to

get back in traffic?" Jackson said she responded, "I'll go in

front of your car, and I'll come around and help you get in

traffic."    As Jackson walked on the pedestrian walkway in front

of the car, she was hit.   She described the accident as follows:

    [A]s soon as I get in front of the car, like, midway,
    I feel a hit or a tap on my leg . . . . I'm thinking
    to myself, "Did I just get hit?" And I put my hands on
    the . . . hood of the car, raise up my left leg
    because I'm trying to jump out of the way of the car.
    The right leg hit – as I go on the side of the car – I
    said, "You realize you just hit me. Park the car."
Jackson conveyed four points of information to the driver: a

request to pull to the curb, directions to the hotel he was

seeking, an offer to help him pull back into traffic, and an

order to park the car after she was hit.         She touched the

vehicle as she tried to evade being hit.

    ¶40     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.     She was not

communicating with, signaling, or exercising active control over

the vehicle at the time of the injury.
                           IV.   CONCLUSION


                                  25
                                                             No.     2012AP1644



    ¶41     To determine the meaning of the insurance contract, we

first look at the policy language itself.          We then turn to prior

Wisconsin   cases   interpreting   the   statute    and    similar     policy

language,     insurance     treatises,    and      cases      from      other

jurisdictions construing the same type of policy language.                  We

conclude that Jackson cannot recover because the actions she

took with regard to the vehicle that hit her do not constitute

using   a    vehicle   in   any    way   that      is     consistent      with

interpretations of "use" in Wisconsin case law or with those of

cases from other jurisdictions.

    ¶42     JUSTICE DAVID T. PROSSER did not participate.

By the Court.—Reversed.




                                   26
    No.   2012AP1644




1
