Worldwide Underwriters Insurance v. Jackson

DEITS, J.

Defendant was wounded by a gunshot fired from a passing motor vehicle. Neither the driver, the assailant nor the vehicle were identified or apprehended. Plaintiff, defendant’s automobile insurer, brought this declaratory judgment action, contending that defendant’s injury does not come within its coverage. Defendant contends that the injury comes under the uninsured motorist coverage of the policy, which insures defendant against injuries that “arise out of the ownership, maintenance or use” of uninsured vehicles. The trial court granted plaintiffs motion for summary judgment, holding that the injuries were not subject to the provision as a matter of law. Defendant appeals, and assigns error to that ruling. We affirm.

As defendant asserts, the precise question presented by this case has not previously been addressed by the Oregon appellate courts. However, an analogous issue was decided in Jordan v. Lee, 76 Or App 472, 709 P2d 752 (1985), rev den 300 Or 545 (1986). In that case, the minor plaintiff was injured while napping with another child, Kristina, in a trailer owned by Kristina’s parents. The injury occurred when Kristina handled a gun that was stored in the trailer and accidentally shot the plaintiff.

In Jordan, the trailer was a covered “automobile” under Kristina’s parents’ automobile policy which, like the policy provision in this case, insured against injuries “arising out of the ownership, maintenance or use” of an owned automobile. The plaintiff claimed that that provision covered her injury. We agreed with the plaintiffs contention that the use of the trailer as a place for children to nap and to store the gun was within the policy’s coverage. We concluded, however:

“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.” 76 Or App at 475. (Emphasis supplied; footnote omitted.)

Defendant argues that this case differs, inter alia, in that the vehicle was ‘ ‘used’ ’ by the assailants to ‘ ‘launch their assault” and to avoid detection. Defendant concludes that it “was not some mere fortuity that the assailants happened to be in a vehicle when the assault occurred”; rather, unlike in Jordan v. Lee, supra, the necessary relationship between the use of the vehicle and the injury was present here. See Oakridge Comm. Ambulance v. U.S. Fidelity, 278 Or 21, 563 P2d 164 (1977). We disagree.

The parties place extensive reliance on decisions from other jurisdictions. Suffice it to say that different courts have answered analogous questions differently, and we agree with the dissent that “case matching is not always productive.” 121 Or App at 299. In our view, however, our reasoning in Jordan v. Lee, supra, is dispositive. The question is whether the injury resulted from “some act wholly disassociated from and independent of the vehicle’s use.” Here, as in Jordan, the firing of the gun was such an act. It is immaterial that the vehicle may have facilitated the shooting and the escape. Its use was not the “direct cause” of the shooting. We agree with the trial court that, as a matter of law, the policy does not cover defendant’s injury.

The dissent’s reliance on Oakridge Comm. Ambulance v. U.S. Fidelity, supra, and its efforts to distinguish Jordan are not persuasive. Immediately after stating the rule of interpretation that the dissent quotes, 121 Or App at 297-98, the court said in Oakridge:

“Even when the rule which governs a decision of the present kind is recognized, the task is not much easier. The problem is the requisite causal connection¹ between the injury or death and the ‘ownership, maintenance or use of the automobile’ which is necessary for coverage when viewed ‘as understood by a person of reasonable intelligence. ’ This is simply another situation in which there exists a continuum of causal connection upon which we are going to have to locate the factual situation alleged * * *.

As we did in Jordan, the court in Oakridge made it clear that causation and remoteness are questions that bear on whether the policy language applies. In this case, there is no doubt that the use of the assailant’s vehicle was “within the line of causation” of the injury. In our view, however, the injury was also “remote” from the use of the vehicle, within the meaning of Appleman’s language that the court in Oakridge and the dissent quote. We do not understand Oakridge to mean anything different from the test we articulated in Jordan: Coverage depends on whether the injury “was directly caused by some act wholly disassociated from and independent of the vehicle’s use.”

The dissent faults us for stating that the use of the vehicle was not the direct cause of the shooting and maintains that that statement is contrary to Oakridge. However, “direct cause” is part of the Jordan test. Moreover, the dissent disregards the context in which that statement appears. It follows from the preceding language:

“The question is whether the injury resulted from ‘some act wholly disassociated from and independent of the vehicle’s use.’ Here, as in Jordan, the firing of the gun was such an act.” 121 Or App at 295.

The dissent seems to posit that the tests stated in Jordan and Oakridge can be separated into component parts. We disagree. If the act that does directly cause the injury is “remote” or “wholly disassociated from and independent of the vehicle’s use,” then it is of decisive importance under the two cases that that act, rather than the use of the vehicle, is the directly causal event. Hard as it might try, the dissent cannot excise the word “directly” from Jordan.

We are unable to discern how the dissent derives its pivotal conclusion that

“Jordan is distinguishable because, in that case, the travel trailer was merely the site where the injury occurred, whereas the driver used the vehicle in this case to approach defendant, inflict the injury and escape.” 121 Or App 298.

It is true that there are factual differences, but they are not legally distinguishable. As noted, we said in Jordan that the activities that took place there —storage of the gun and a locale for the children’s naps — were “uses” that the policy covered. So, here, was the driver’s operation of the vehicle. The critical fact that the cases have in common, however, is that the injuries were directly caused by the use of a gun. Under the dissent’s reasoning, coverage would depend on a fortuity: Defendant would be entitled to coverage under the facts as they stand, but would not be if the assailants were acquaintances who shot him after he had accepted a ride and had entered the vehicle. In our view, there is no coverage in either situation.

Affirmed.

1 "1 By ‘causal connection’ we do not mean ‘proximate cause.’ ” 278 Or at 24.