As with any matter involving insurance coverage disputes, it is first necessary to assess whether the provisions of the policy specifically provide for coverage to a particular individual given the facts surrounding the incident. In cases in which a Plaintiff is seeking to confirm the availability of an employer’s insurance coverage, determinations commonly hinge upon whether the insured vehicle was being utilized for the purpose for which it was insured. Often time, considerations concerning ‘use’ include the evaluation of whether the injured was acting within the scope of his or her employment, such that the presence of an active relationship exists. For limitation purposes, this article focuses on an evaluation of the availability of insurance to truck drivers injured while allegedly acting within the scope of their employment as tow truck operators.

Although the term ‘use,’ as defense for the insurance company may purport, should be defined in a strictly literal sense, many jurisdictions disagree with such strict interpretation. To hold otherwise, would, as cited by many courts, contradict basic contract law principles by allowing for the recognition of a contract which is outside the contemplation of the parties, and therefore lacking in consideration. The distinction between active and passive relationship to the insured vehicle, in terms of use, therefore, requires an assessment of whether or not the vehicle was in use within the contemplation of the parties to the insurance contract. See Monroe Guar. Ins. Co. v. Campos, 582 N.E.2d 865, 869 (Ind.Ct.App.1991). As discussed in Campos, the Court considered whether “an individual who “uses” a vehicle by propelling it may also “use” the vehicle in a manner related to the primary use.” Id. In its evaluation the Campos Court considered whether Campos was “using” the tow truck within the scope of garage operations although he had ceased to propel the vehicle, concluding:

Under the facts and circumstances in the case at bar, the Defendant was engaged in an activity essential to the towing process and thus, Defendant was using the tow truck insured by Plaintiff as its operator at the time Defendant was injured by an uninsured motorist. Campos at 867; See also e.g., Rau vs. Liberty Mutual Insurance Company (1978), 21 Wash. App. 326, 585 Pac.2d 157. See also Stevens vs. U.S.F. & G. (1977), Miss.App. 345 So.2d 1041Hartford Accident & Indemnity Company vs. Booker(1976), 140 Ga. App. 3, 230 S.E.2d 70Oberkramer vs. Reliance Insurance Company (1983) Mo. App., 650 S.W.2d 300National Union Fire Insurance Company of Pittsburgh, Pennsylvania vs. Olson (1988), Hawaii, 751 P.2d 666; and Great American Insurance Company vs. Cassell (1990) Virginia Supreme Court [239 Va. 421], 389 S.E.2d 476.

The conclusion in Campos, and its predecessors, as well as subsequent decisions, provides for an implication that in determining the applicability of coverage under an employer’s policy, it is first necessary to assess whether the vehicle was in use, such that the driver was acting within the scope of employment. Where ‘use’ has not been defined by statute, or within the context of the contract, or by other means, the Court must look to the intention of the parties to the contract. As stated in Campos, “[w]e will not remove from coverage a risk which the policy can be reasonably construed to protect against.” Campos at 870. In the Court’s evaluation of the evidence presented concerning whether or not the tow truck was in ‘use’ within the contemplation of the parties to the contract, the court provided further clarification, in stating:

The contract between Monroe and Allen Towing provides insurance coverage to Allen Towing and its employees who are engaged in the business of towing disabled vehicles. The parties certainly would have contemplated the nature of this business activity. Removal of disabled vehicles from roadways cannot be accomplished solely by the activity of “propelling or directing” the towing vehicle. Reasonable persons would expect that a tow truck operator must engage in other activities during the towing process, some of which will require that he exit the vehicle (e.g. evaluation of the towing scene, securing the vehicle to be towed, attachment of towing equipment to the disabled vehicle, conferring with appropriate officials concerning safety procedures). Campos at 870.

Likewise, in Stevens v. United States Fid. & Guar. Co., 345 So.2d 1041 (1977), the Court considered a similar scenario involving the availability of insurance coverage to an injured tow truck operator who was removing debris from the highway following an auto accident. In Stevens, the Court held:

In this case it is obvious that the wrecker operated by Stevens would be used for removing disabled vehicles from the highway. Removing debris from the highway was a necessary part of the operation, and could only be accomplished by Stevens removing himself from the wrecker to perform this task. Stevens used the wrecker to secure the disabled vehicle, towed it to the shoulder of the highway and completed the necessary on site chore of sweeping debris from the traveled portion of the highway. Stevens used the wrecker from the time he left his employer’s premises until he returned with the disabled vehicle, and his temporary absence from the wrecker for the purpose of performing the necessary task of removing debris from the highway did not amount to abandonment of the use of the wrecker. It could not be seriously argued that Stevens was not using the wrecker if he had been struck while outside the wrecker attaching the disabled truck to it. We discern no difference in this and Stevens’ act of leaving the wrecker to sweep debris from the traveled portion of the highway. We hold that Stevens’ injuries arose out of the use of this wrecker; therefore, it was error to sustain the motion for a directed verdict. Stevens at 1044.

The decisions in both Campos and Stevens required the Court to consider whether the activities engaged in at the time of the injury were the type of activities to which the parties to the policy would have contemplated at the time of contracting. See generally, Campos; and Stevens. Therefore, absent guiding principles which clearly define ‘use,’ the presentation of  supporting or negating evidence concerning the specific job duties required by a tow truck driver, through the use of an individual who is best equipped to testify on that topic, a tow truck operator expert, is perhaps a critically essential component in either recovery or defense.

By: Alicia McKnight, J.D.