JORDAN BY JORDAN v. Lee

*474WARREN, J.

Plaintiff appeals from a judgment entered after the parties submitted their controversy to the trial court, as provided by ORCP 66.1 The court determined that insurance coverage for plaintiffs injuries was not available to defendants Lee under an automobile liability policy issued by defendant Preferred Risk Mutual Insurance Company (Preferred Risk). The issue is whether the court erred in that determination. We affirm.

One evening in June, 1980, the Lees and their seven-year-old daughter Kristina arrived at a lake with their pickup truck and trailer for a weekend of camping. As was his custom, Mr. Lee brought his .44 Magnum handgun on the trip. Shortly after arriving, he loaded the gun and stored it within the trailer’s unfolded upper bunk.

The next morning, the Lees were joined by David and Marsha Reynolds and plaintiff, Cereña. Jordan, who was two years old at the time.2 In the early afternoon, Kristina and Cereña were put down for a nap in the trailer. A short time later, Kristina got the gun down and accidentally shot plaintiff in the leg.

On the day of the accident the Lees had an automobile liability insurance policy issued by Preferred Risk. Under the policy Preferred Risk agreed:

“To pay on the behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
“A. bodily injury, sickness or disease including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by any person;
* * * >fc
*475“arising out of the ownership, maintenance or use of the owned automobile * * *.”

The policy defined the Lees’ trailer as an automobile.

To resolve this controversy, we must interpret the provision “arising out of the ownership, maintenance or use of the owned automobile,” which is a common one in automobile liability policies. In Oakridge Comm. Ambulance v. U. S. Fidelity, 278 Or 21, 24-25, 563 P2d 164 (1977), the Supreme Court adopted the generally accepted rule for interpreting the provision. According to the Oakridge court, the words “arising out of’ have a broader meaning than that usually attached to the words “caused by.” For there to be coverage, the ownership, maintenance or use of the vehicle need not be the direct or legal cause of the injury. However, neither can the injury be unrelated to the use of the vehicle. The injury must originate from, be incident to or have a connection with the use of the vehicle.

Addressing a threshold issue, plaintiff first contends that using the trailer as a place for children to nap, and as a place to store a gun, are uses covered by the policy. We accept that contention. Plaintiff then contends that the injury originated from, was incident to and had a connection with those uses. With that contention we do not agree.

The relationship between the trailer’s uses as a sleeping place for children and as a place to store a gun and the accident was fortuitous. Those uses played no role in causing the accident. True, had the two uses, providing place and means for the accident, not concurred, the accident would not have happened. Nevertheless, the accident was not the result of the two uses; rather, it was the result of Kristina handling the gun, an act independent of the trailer’s use. We hold that an injury does not arise out of the use of an automobile when, as here, it was directly caused by some act wholly disassociated from and independent of the vehicle’s use.3

*476Plaintiff has cited a number of cases involving the discharge of weapons in automobiles in which coverage was found. See Ohio Farmers Ins. Co. v. Landfried, 348 F Supp 486 (WD Pa 1972); Payne v. Southern Guaranty Co., 159 Ga App 67, 282 SE2d 711 (1981); Reliance Ins. Co. v. Walker, 33 NC App 15, 234 SE2d 206 (1977); Travelers Ins. Co. v. Aetna Casualty & Surety Co., 491 SW2d 363 (Tenn 1973). Those cases, however, are factually distinguishable from the case here. In Ohio Farmers, an opinion which we find unpersuasive, the court stated that its decision was controlled by the fact that the weapon discharged in a police car; Travelers was determined by the fact that the weapon was being loaded into the vehicle, which was a covered use under the policy; in Reliance and in Payne the weapons discharged without human intervention. In any event, the provision we are interpreting has been involved in so much litigation that “for every such opinion [supporting one party’s position] one can be found in which similar facts resulted in a contrary ruling * * Oakridge Comm. Ambulance v. U. S. Fidelity, supra, 278 Or at 26. In such a circumstance, “[c]ase matching * * * is singularly futile.” 278 Or at 27. See Annot., 15 ALR4th 10 (1982) for examples of the diversity of decisions under similar facts.

The majority of courts have held that the accidental discharge of a gun inside a vehicle while an occupant is handling the gun is not covered under an ownership, maintenance or use provision; the courts have reasoned that an insufficient causal relationship exists between the accident and the use of the vehicle. See State Farm Mutual Auto. Ins. v. Smith, 107 Idaho 674, 691 P2d 1289 (1984) (and cases cited therein). We agree with that reasoning and, therefore, affirm.

Affirmed.4

ORCP 66 provides, in part:

“Parties to a question in controversy, which might have been the subject of an action with such parties plaintiff and defendant, may submit the question to the determination of a court having subject matter jurisdiction.”

Cereña Jordan is the daughter of Marsha Reynolds and Jay Jordan, the guardian ad litem. At the time of the accident Marsha Reynolds was named Marsha Jordan. David Reynolds, who is now married to Marsha, is the brother of Mrs. Lee.

The dissent makes an argument that shows at most that the Lees could be found liable to plaintiff. In the process, however, it demonstrates why there is no coverage under the policy. The dissent points out that given the loaded gun and unsupervised children, the accident was foreseeable and concludes that coverage follows. Foreseeability, however, is a liability concept that is not relevant to determining the coverage question: did the injury arise out of a covered use? As the dissent points out, “the older girl took the gun from its storage place and accidentally fired it.” It is evident that the covered uses were not connected in any causal way with the accident.

Plaintiff also argues that the injuries arose from the Lee’s ownership of the trailer. That argument has no merit, because plaintiffs theory of liability is based on the Lee’s use of the trailer, not on their ownership of it. To the extent that plaintiff equates use and ownership, as her argument seems to do, the causal connection is also insufficient to afford coverage.