Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1991)

MEMORANDUM^* 

Appellant Hartford Accident & Indemnity Company ("Hartford") appeals the district court's grant of summary judgment in favor of Liberty Mutual Insurance Company ("Liberty Mutual"). Hartford brought an action seeking a declaration that Liberty Mutual, not Hartford, was required to indemnify the insured, Lawrence Thompson ("Thompson").

The district court concluded that Thompson was not "using" the truck under the terms of the Liberty Mutual policy. Thus, the district court held that Liberty Mutual was not required to indemnify Hartford. Accordingly, the court granted Liberty Mutual's cross-motion for summary judgment and denied Hartford's motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the district court's judgment.

We recognize that Arizona law urges a liberal construction of omnibus clauses such as the one contained in Liberty Mutual's policy. See Westfield Ins. Co. v. Aetna Life & Casualty Co., 739 P.2d 218, 222 (Ariz.App.1987). As there is no Arizona case law construing the term "use" in a like situation, we agree with the district court that, ultimately, each case must turn on its own facts. See, e.g., Insurance Co. of N.A. v. Royal Globe Ins., 631 P.2d 1021, 1023 (Wash.App.), review denied, 96 Wash. 2d 1016 (1981); Liberty Mut. Ins. Co. v. Steenberg Constr. Co., 225 F.2d 294, 297 (8th Cir. 1955).

Here, it is undisputed that Thompson used hand signals to assist the driver of the Schade truck in backing between two other parked trucks. It is similarly undisputed that Thompson ceased assisting with hand signals after the truck cleared the parked trucks and prior to the time of the accident. Schade's truck backed at least another fifty feet, which took approximately 15-20 seconds, after Thompson's final wave to the driver. Moreover, it is apparent from the driver's deposition testimony that he alone had control of the truck following the termination of assistance by Thompson.

Even affording a liberal construction to the omnibus clause in Liberty Mutual's policy, we cannot agree with Hartford that Thompson's actions in this case amounted to "using" the vehicle at the time the truck struck and killed Dean Taylor. See, e.g., J. Scheer & Sons Co., Inc. v. Travelers Indem. Co., 229 N.Y.S.2d 248 (1962); Wellman-Lord Eng'rs., Inc. v. Northwestern Mut. Ins. Co., 222 So. 2d 436 (Fla.App.1969). Further, the cases relied on by Hartford to show "use" are distinguishable from the instant case. In each of those cases, the insured event occurred during the time the third person was assuming active control of the vehicle. There is no doubt in this case that Thompson had terminated his assistance prior to the accident. Accordingly, we affirm the district court's grant of summary judgment in favor of Liberty Mutual.

AFFIRMED.