7.12 Vehicles Used for Public Livery or Conveyance

• Jurisdiction: Arizona

Insurance carriers are authorized by A.R.S. Sec. 20-259.01(C)^[159] to exclude UM coverage in policies issued to operators of vehicles used for "public or livery conveyance."^[160] A public conveyance is a vehicle that is indiscriminately held out for public use.^[161] The term "public livery or conveyance" encompasses carriage of freight as well as persons.^[162]

Several factors should be considered in determining whether a particular vehicle is being used as a public livery or conveyance. The frequency that the insured vehicle is used in a public livery or conveyance capacity must be evaluated. The courts of other jurisdictions have rejected coverage where the vehicle is regularly and repetitively used as a public livery or conveyance.^[163] Where the vehicle's use as a carriage of passengers or commodities is casual and occasional, coverage has typically been found.^[164]

Providing carriage to passengers or for commodities for compensation has been considered by the courts in determining whether a vehicle is being used as a public livery or conveyance.^[165] However, the amount paid may not be determinative to the analysis.^[166]

Transporting passengers or commodities between fixed termini or at stated times may not be determinative.^[167]

The use to which the insured vehicle is being put at the time of the accident must be considered. The courts of other jurisdictions have held that the insured vehicle must be used as a public livery or conveyance at the time of the accident in order for the public conveyance exclusion to apply.^[168]

Determining whether carriage is regular and repetitive rather than casual or occasional depends upon how the selection and exclusion of passengers is accomplished.^[169] Limiting carriage to members of a particular group may make a difference if the group is selected by a predetermined standard as opposed to selecting the group indiscriminately from the totality of the community.^[170]

In Warfe v. Rocky Mountain Fire & Casualty Co.,^[171] the Arizona Court of Appeals held that a taxicab is a vehicle indiscriminately held out for public use, and, therefore, the taxi was a public livery or conveyance within the meaning of A.R.S. Sec. 20-259.01. The driver argued that because his taxi was not occupied by a passenger at the time of the accident, nor was he cruising for passengers, the vehicle was not a public livery or conveyance at the time of the accident. The accident occurred while driving his empty taxicab to Tucson International Airport to await arriving passengers. The court in Warfe rejected this argument, observing:

Driver contends that although A.R.S. Sec. 20-259.01 applies to vehicles "which are used" as public conveyances, the language of the policy applies to vehicles only "while used" as public conveyances. He interprets "while used" to mean while actually used in the sense that at the time of the accident the vehicle was either occupied by or cruising for passengers. For purposes of this appeal, we assume the driver did not have a specific prospective passenger waiting for him at the airport.

Assuming arguendo that the language of the policy narrows the statutory...