Fort Worth insurance lawyers need to be able to understand when coverage is afforded under a policy and when it is not. A 1994, Dallas Court of Appeals case is a good opinion to know about. It is styled, Nationwide Property & Casualty v. McFarland. Here is the relevant information from that case.
Nationwide and McFarland both filed motions for summary judgment. After a hearing, the trial court granted McFarland’s motion and denied Nationwide’s. In this appeal Nationwide argued the trial court erred in granting summary judgment for McFarland and denying Nationwide’s motion because Mashewske was not a “covered person” under the policy. This Appeals Court disagreed and upheld the trial court ruling.
McFarland was working underneath his Toyota. 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 Toyota 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 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.”
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.
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. Before an individual becomes an omnibus insured under the typical automobile policy, there must be a “use” of the covered auto, as distinguished from a “maintenance” of it.
Black’s Law Dictionary defines “use” as: “convert[ing] to one’s service, to employ, to avail one’s self of.” Webster’s Ninth likewise defines “use” to mean “to put into action or service.”
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.
This Court ruled that 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.
Updated: