6.2.4 Use

• Jurisdiction: Arizona

Arizona courts have broadly construed the concept of "using" an insured vehicle.^[55] Notwithstanding this broad construction of the term, for coverage to exist, an insured must be using the vehicle pursuant to the "inherent nature" of the vehicle. The "inherent nature" of the automobile "is as a means of transportation."^[56]

For example, where hunters use an insured vehicle to transport their firearms, accidental discharges of those firearms are related to the vehicle use.^[57] However, where a firearm accidentally discharges within an insured vehicle because a passenger was "toying" with it, no vehicle use is involved.^[58] This dichotomy in result is best explained with reference to "loading and unloading" operations which are inherent use processes. Where the firearm discharge occurs during the loading or unloading of the firearm,^[59] or where the discharge occurs after the loading but can be traced to negligence during loading,^[60] the discharge was the result of the negligent use of the insured vehicle. Negligent handling of a firearm can occur within or without the insured motor vehicle; therefore, where the firearm discharges while a passenger plays with it, unrelated to loading or unloading, no vehicle "use" was involved.

The court's analysis in Westfield Insurance Co. v. Aetna Life & Casualty Co.,^[61] illustrates how broad is the concept of "use." In Westfield, the insured vehicle had become disabled and required towing. While the insured vehicle was being towed, an accident occurred between the tow truck and another vehicle. The issue arose as to whether the tow truck driver was "using" the disabled vehicle that was being towed at the time of the accident, implicating the liability coverage issued to the owner of the disabled vehicle. The court held that the tow truck driver was covered by the liability policy insuring the disabled vehicle because the vehicle was being "used" within the meaning of the policy's omnibus clause.

In reaching this conclusion, the court in Westfield cited with approval a leading commentator on the subject:

"The term 'use' within the meaning of an omnibus clause is not confined to motion on the highway but extends to any activity involved in the utilization of the covered vehicle in the manner intended or contemplated by the insured."^[62]

The court also cited with approval the following analysis of the court in American Fire & Casulaty Co. v. Allstate Insurance Co.^[63]:

The [motor vehicle] was moving on the road by means of its own running gear and although it was not employing its own power unit, it was subject to the vicissitudes and dangers of travel on the public highway and was being propelled under circumstances not infrequenly encountered. 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, and it would violate the usual rule of liberal interpretation of such an agreement in favor of the insured, if it should be held that a car being transported under the circumstances was not actually in use.^[64]

The court in Westfield held that because the tow truck driver was actively controlling the movement of both the tow truck and the disabled vehicle being towed, the disabled vehicle was being "used" at the time of the accident and the tow truck driver was covered under the disabled...