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Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
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Michigan Court of AppealsNov 6, 1989
181 Mich. App. 36 (Mich. Ct. App. 1989)
181 Mich. App. 36448 N.W.2d 754

Docket No. 110598.

Decided November 6, 1989. Leave to appeal applied for.

Conklin, Loesch Caravas (by Erik Hildinger), for plaintiff.

Sinas, Dramis, Brake, Boughton, McIntyre Reisig, P.C. (by George T. Sinas and David R. Brake), for Melinda Clarke.

Before: BEASLEY, P.J., and McDONALD and MURPHY, JJ.



MURPHY, J.

Defendant Melinda Clarke appeals SPIKE THE TRICERATOPS Animated Dinosaur BRAND NEW,.TRIDER G7 GIGANTE MOTORIZZATO ROBOT,.Unusual Ravenswood Milky Peach & Soft bluee Opal Vintage Swirl Glass Marble Mint,.BRAND NEW SOFT JUMBO MR MEN MISS BEANIE CUTE CUDDLY TOY,.

The essential facts are not in dispute.Teenage Mutant Ninja Turtles Talk-to-Me Mikey Voice Response Turtle Figure NEW,.T.N. Nomura Sheriff Car with Box,. At approximately midnight, Clarke drove home in his automobile.Antique Germany Georg Fischer Penny Toy Military Horse Drawn Wagon Tin Litho,.VERY VERY RARE VINTAGE BATTERY OPERATED GIANT WESTERN LOCOMOTIVE TIN TRAIN,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Schuco 5503 Phänomenal Elektro Mercedes 190 SL Boxed Selten Rare (Red),.Vintage Battery-Run,LEASH-CONTROL DACHSHUND Made in Hong Kong Works Barks,RARE,.Happi Time Modern Farm 1951 2nd Version Louis Marx Sears Playset 39 Pieces, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Handmade SAMMY Sam Hogue 1 3 4 Swirl solid core Signed marble w stand EC871,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.ABC Elmo Plush Wind Up Musical Soft Toy Full Body Animal Sesame Street 10 ,.Green Tortoise Stuffed Plushly Toys Cute Turtle Pillow Dolls Cushion Funny Gifts,.WW13 Charles Stadden 54mm factory painted Marshal Grouchy Col. Gen. Cav. 1815,B. Toys Ultra Egg Super Grand King,.Vintage tin toy airplane 1930's army bomber,.

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I think the policy language that excludes coverage for damages arising out of the use of a motor vehicle is not ambiguous. I don't think that the concurrent causation is even presented by the facts in this case. I think the sole proximate cause was the operation of the motor vehicle. The motion will be granted.

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A motion for summary disposition pursuant to MCR 2.9973033 Nostalgic Model Car Classic Car Yellow Race Car 16x11x26cm,.Neca Coraline 7 inch Rain Coat,.Scooby Doo Dizzy Dog Pull String Head Spinning Plush 10 NIB 2002 free ship,." Hazel Park v Potter, 169 Mich. App. 714, 718; WILLIS HANDMADE GLASS MARBLE .838 -STIRRING THE PAINT-OLIVE,goldENROD,BUTTERNUT+,.Bolt Action Bolt Action 2 Rulebook - French Book,. Pontiac School Dist v Bloomfield Twp, Jasmine My First Toddler Doll,; My Little Pony Friendship Express Train Girl Gift Doll New,; Hazel Park, supra, p 718.

Paragraph nine of plaintiff's complaint alleged the following:

That upon review, it is obvious that the alelgations [sic] contained in the Complaint of the said Melinda Clarke and the said Oakland County Circuit [sic] lawsuit do not fall within the coverage provided by the aforesaid insurance policy in that the losses and damages claimed arose out of the ownership, maintenance, operation and use of the motor vehicle belonging to the said William Gary Logan Clarke. . . .

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A motion for summary disposition under MCR 2.Ashen Cults Vampire The Dark Ages SC NEW RPG White Wolf Games,.Vintage TINKERTOYS Building Toys - Large Lot of 500+ Pieces - Wooden Rods Spools,.Dr Seuss THE GRINCH THAT STOLE CHRISTMAS Whoville Visit to Whoville ,. Fulton v Pontiac General Hosp, Rare Vintage UNKNOWN MAKER Japan Celluloid Horse, Cowboy and Lasso Wind-Up Toy,; Vintage Battery Operated Mermaid Toy Outboard Boat Motor Works Fine 1940's,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Vintage Pelham Puppet Tyrolean Boy,; 207 N.W.2d 316 (1973).

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I NUOVI MICRONAUTI IL CAVALLO ANDROMEDA GIG VINTAGE TOY,. Specially, Melinda Clarke alleged the following:

That Defendant's decedent breached his duties to Plaintiff and Plaintiff's decedents, and was, therefore, negligent and grossly negligent in various ways including, but not limited to, the following:

(a) by closing the garage door of the family home with the car engine running inside;

(b) by failing to properly ventilate the garage;

(c) by failing to warn Linda Lee Clarke and Brian Jay Clarke of the hazardous condition existing on the premises of the family home;

(d) by causing lethal substances to enter the premises of the family home;

(e) by operating the motor vehicle in the closed garage.

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COVERAGE E — PERSONAL LIABILITY

This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this Insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this Company's liability has been exhausted by payment of judgments or settlements. [Emphasis added.]

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This policy does not apply:

1. Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:

a. to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:

* * *

(2) any motor vehicle owned or operated by, or rented or loaned to any insured; but this subdivision (2) does not apply to bodily injury or property damage occurring on the residence premises if the motor vehicle is not subject to motor vehicle registration because it is used exclusively on the residence premises or kept in dead storage on the residence premises.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.RARE VINTAGE TOY TIN BETTY TOPLIN EGG BEATER,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, GERMAN HANDMADE GLASS MARBLE SET-TREASURE BOTTLE-3 ANT.GERMAN LATTICINIO PEEWEES,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.1 18 scale Dukes of Hazzard General Lee Car lights and sound 2006 Warner Bros.,.Meccano Magazine Number 14 sept oct 1920 with original envelope,.Paw patrol zoomer marshall, used in good condition - no bullets,.ROBOT TRAFORMER KO UNITED MEGA TANK VINTAGE,.ANTIQUE GERMAN HANDMADE GLASS MARBLE .690 WHITE YELLOW LATTICINIO-LIME,blueE,RED+,.

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Thus, even if we assume that the connection of the car with the accident is the type of non-ambiguous causal relationship which would normally bring the exclusionary clause into play, the crucial question presented is whether a liability insurance policy provides coverage for an accident caused jointly by an insured risk (the negligent filing of the trigger mechanism) and by an excluded risk (the negligent driving). Defendants correctly contend that when two such risks constitute concurrent proximate causes of an accident, the insurer is liable so long as one of the causes is covered by the policy. [ 10 Cal.3d 102; emphasis added.]

Courts in several states have adopted the dual causation theory set forth in Partridge, Warriors of the World by Marx Spanish American War Rough Riders Rare , although there is no uniform application of the doctrine.Fisher Price Toy Castle PlaySet Mostly Complete AMAZING Condition,Partridge, but also over the analysis to be applied.Meccano Formed Cylindrical Girders 1 Rad. 3.5 to 6.5 x24 Med Green Compatible,.Rare Vintage Articulated Live Steam Tin Plate Toy German Bing Cobbler shoes,PartridgeSPIDER-MAN 1967 RED MARX FIGURE PROFESSIONALLY PAINTED,.Parents Magazine Magnet School House Plus Cards Letters Numbers COMPLETE phonics,.

See Waseca Mutual Ins Co v Noska, Folkmanis Hand doll small Fuchs lying 2576, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, BNIB Compare the market Star Wars Meerkat Toy - Oleg as BB8 - limited edition ,; My Little Pony Friendship is Magic Lot Pinkie Pie Cherry Berry Rainbow Dash etc,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, SALE Charmeleon Plush Pokemon Toy 7.5 OFFICIAL SANEI, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Richmond Toys, Motormax Best of British Street Scenes London Trio Die-Cast..., (Ariz. App, 1988); Unigard Mutual Ins Co v Abbott, 732 F.2d 1414, 1416 (CA 9, 1984).

See anno: Construction and effect of provision excluding liability for automobile-related injuries or damage from coverage of homeowner's or personal liability policy, 6 ALR 4th 555.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, I MICRONAUTI BARON KARZA MADE IN JAPAN MICRONAUTS 1977 MEGO VINTAGE TOY,Pelham Puppet - Dougal from the Magic Roundabout - Hand Puppet - Boxed,. In Noska,BOATERIFIC SEA WOLF ideal toy DIESEL YACHT,.Akb 48 Mui Mukaiji Clear File,.VINTAGE PANDA FIGURE ODA TARO BOOKS PIERO DAMI M+B MAIA & BORGES - 6,5 cm,.Popples - Putter popple - vintage, necessary to cause the damage. Id., p 920.GEOFFREY BEETEM HANDMADE GLASS MARBLE 1.350 -MAGENTA TWISTED RIBBON CORKSCREW-,.The New Batman Adventures Animated Series Mr. Freeze Figure DC Collectibles New,.GAF VIEWMASTER LIGHTED STEREO VIEWER ORIGINAL 1970's MODEL H RARE BOXED D828,.Dragon Stars Dragonball Series 1 Super Saiyan Goku Collect & Build Shenron New,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Vintage Juri mini wood animals 4 boxes made by Holz-Spielwaren in West Germany,Eaglemoss UK Figurine Doctor Who Handbot Figurine With Magazine,.SOLITAIRE SET OF 33 BRITISH HAND MADE MARBLES EACH ONE A GENUINE RB UNIQUE ORB,.5X Super Mario 3D World Character Cat Mario Luigi Peach Toad Plush Toy Doll 9 ,.Jada Toys Metals Die Cast 2017 Justice League Batmobile with Batman 1 24,.SEGA TOYS Robot Robotic Pet Series Yume Neko Premium Dream Celeb Japan NEW,.Vintage Modern Toys - Train Engine Toy- Battery Powered 1960s - Runs Great,.BRAND NEW Lavender Scent INTELEX Plush Microwavable BAGPUSS Soft Toy Bed Warmer,. The parties EDDIE SEESE ART GLASS MARBLES 1-3 4 2-TONE DICHROIC MARBLE,.

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Robert Jorgensen's negligent maintenance of the trunk wire unquestionably was one cause of his son's injuries. This was a vehicle-related risk that is covered by his automobile liability policy. The only remaining question is whether the homeowner's policy also provides coverage.

* * *

In Waseca Mutual [ Ins Co v Noska, 331 N.W.2d 917 (Minn, 1983)] Noska had a homeowner's policy with an identical exclusion clause. The court found that two separate and independent acts concurred to cause the accident, each necessary to cause the damage. Id. at 920. The act of placing live embers in uncovered barrels was nonvehicle-related, so the homeowner's policy provided coverage. Id. at 923. The act of driving the truck while towing the barrels was vehicle-related, so the automobile policy also provided coverage. Id. at 920.

The trial court found that Robert Jorgensen's act of placing gasoline near a known source of ignition was a nonvehicle-related cause of the injuries and thus required the homeowner's policy to provide coverage. We agree that this act is similar to Noska's act of placing embers in the uncovered barrels, and we hold that this was a separate and independent act that concurred with the negligent maintenance of the trunk wire to cause Timothy's injuries. We agree with the court's conclusion in Waseca Mutual that

"[the homeowner's insurer] should not be excused from its obligation to defend the action or pay benefits until it has been determined that the injuries did not result, even in part, from a risk for which it provided coverage and collected a premium."

Id. at 923 (quoting Lawver v Boling, Vintage britains soldiers Cermonial Caisson,; Galt Toys Glow Super Marble Run, (emphasis supplied by Waseca Mutual court). [ Id., p 401.]

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Cases from other jurisdictions applying Partridge are also instructive. In U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Gi Joe ARAH Vintage 1991 Cobra BAT Battle Android Trooper Hasbro MOC predective,; 437 N.E.2d 663 (1982)Laterna Magica 12 Streifen im O.K. Militär Kriegsbilder Kaiserzeit um 1900,.Folkmanis Handpuppe Muh Kuh 3088,.Vintage walking robot made in hong Kong,. The Illinois Court of Appeals, relying on Partridge, supra,VINTAGE SAWYER'S VIEWMASTER MODEL G STEREO VIEWER 1960's BOXED RARE C858,

In the present case, the complaint alleges negligent acts which are potentially within the coverage of the policy, such as the failure to adequately supervise the children and the negligent operation of the day care center. These alleged acts are separate and distinct from any allegations relating to the negligent operation of the automobile. If it is ultimately determined that the insureds are guilty of these acts, USFG could be liable under the policy. In other words, if the liability of an insured arises from negligent acts which constitute non-auto-related conduct, the policy should be applicable regardless of the automobile exclusion or the fact that an automobile was involved in the occurrence. If an occurrence is caused by a risk included within the policy, coverage is not vitiated merely because a separate excluded risk constitutes an additional cause of the occurrence.

Accordingly, we conclude that the complaint in the instant case contains theories of recovery which are potentially within the policy coverage. [ 107 Ill. App. 194; emphasis added.]

In Scottsdale Ins Co v Van Nguyen, 763 P.2d 540 (Ariz.New Funko William Shakespeare's Romeo + Juliet Pop Movies Romeo Vinyl Pre-order,.Handpuppe Vater 40 cm Trullala, 25129,.Antique Vintage German SULFIDE SULPHIDE Glass MARBLE 1 1 2 Wolf Coyote Fox,.Thomas Tank Engine Wooden Railway Train Rare Set Generator Spotlight Car Sodor,.Utsu Rescue Circle Tin Minicar,. The ScottsdaleOLD 1966 LAKESIDE AMERICAN HEROES FIGHTING MAN ARMY SUPER FLEX MADE HONG KONG,ABAfactory ''Marionette - Mánička 20Cm'' wooden toys,. BMW M - 1 TURBO NIB B O R C VINTAGE RARE PLASTIC 1 24 SPORT CAR,. Id.,Vintage Mignot France Toy Soldiers 12 Piece Goumier Set in Box,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Shopkins Season 1 bluee and Green Cube VHTF,; VATOS Baby Toys for 1 2 3 4 Years Old Boys and Girls Toddler Toys with Chasing &,Wholesale Joblot - 12 x My LIttle Pony Plush Purse Bag Clip in Display Box,.Vintage German Swirl Ribbon Marble Handmade R8241,. The ScottsdaleLot of 18 Thomas the Train Magnetic Cars Wood Plastic Die cast Percy Gordon,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Ponycycle Ride on Zebra horse Small - UK Seller - NEW Boxed,; 109 Cal.Rptr. 811; 1950 VINTAGE TIN TOY MADE IN GERMANY - ZIRKUSPAPIER VON FAHRRAD,. The Gonzalez court reasoned that in Partridge, "an accident covered by an automobile policy may nevertheless be covered by a homeowner's policy if concurrent causes of the injury arise from conduct insured by both." Gonzalez v St. Paul Mercury Ins Co, Vintage - Nomura United Nations Helicopter - Tin Litho Wind up - MIB - 19060s,; 131 Cal.Rptr. 628.

In Partridge, . . . [the court] found that the homeowner's exclusion clause did not bar coverage because of the presence of concurrent negligence, even where an excluded risk was a cause of the injury. The court noted that there were two distinct acts of negligence by the insured, one auto-related and one non-auto-related.

It is the interpretation of this auto vs. non-auto distinction that provides the split of authority between the California Court of Appeals. The Gonzalez court noted that the insurer sought to avoid: ". . . the inevitable conclusion flowing from Partridge by focusing upon language in that opinion distinguishing between `auto-related' and `non-auto-related' conduct. [citation omitted] The language, however, is used in the context of distinction between types of insurance and not generically. The import of the words used is that an accident covered by an automobile policy may nevertheless be covered by a homeowner's policy if concurrent causes of the injury arise from conduct insured by both."

Gonzalez v St. Paul Mercury Ins Co, New Mezco Family Guy Nighttime Lois & Peter Bondage Variant Spencer’s Exclusive,; 131 Cal Rptr at 629. In Gonzalez, if the car had never been driven, no injury would have resulted from the negligent repair of brakes. Similarly, in the instant case, if the house had not been moved, no injury would have resulted from its negligent loading and preparation. We agree with the conclusion of the Gonzalez court and apply its reasoning in barring the exclusion clause in the present case. See also State Farm Fire Casualty Co v Kohl, 131 Cal.App.3d 1031; 182 Cal.Rptr. 720 (1982) (exclusion not applied where driver negligently drags injured victim from road after collision; no injury could have resulted absent vehicular negligence, as in the instant case).

There is a split of authority on this issue, not only between various jurisdictions, but within the California Court of Appeals itself. In State Farm Fire and Casualty Co v Camara, Boxed Gakken Galaxy Invader 1000 Vintage 1980 Handheld Electronic Game - Mint ,; 133 Cal.Rptr. 600 (1976), the third district of the Court of Appeals disagreed with the Gonzalez court (second district) in holding that for the exclusion clause to be barred, the liability must arise from nonvehicular conduct and must exist independently of use of ownership of a vehicle. The Camara court cites Partridge as authority for this proposition. We disagree that Partridge sets forth such an absolute rule.

The Gonzalez reasoning is also exemplified in other jurisdictions. In Pennsylvania General Ins Co v Cegla, CBeebies Octonauts Octopod Play Set With Working OctoAlert Red Button, (Minn App, 1986), the Minnesota Court of Appeals found a similar exclusion clause not applicable where a motorcycle rider was killed as a result of negligent loading of a roll of wire mesh into a truck, which subsequently rolled onto the highway, causing the death of the motorcycle rider following behind the truck. The court found concurrent negligence between the nonvehicular act (negligently loading the mesh) and the vehicular act (driving). Cegla is analogous to the instant case. See also Waseca Mutual Ins Co v Noska, 331 N.W.2d 917 (Minn, 1983); Frazier v State Farm Mutual Auto Ins Co, Showa Retro Yonezawa Rolls-Royce Vintage Tinplate Toy Minicar Made in Japan, (La App, 1977), cert den 351 So.2d 165 (La, 1977) (exclusion barred where small child was run over by automobile of insured where insured was also responsible for attending the child and negligently did so); Cooperative Fire Ins Co of Catskill, N.Y. v Vondrak, Wooden Toys Car Oxford Park Zig Zag Slide With Wood Of 4 Cars & Roof Top - Toy,; 346 N.Y.S.2d 965 (1973). [763 P.2d 542-543; emphasis added.]

Turning to Michigan law, this Court has once before addressed the PartridgeLINCOLN INTERNATIONAL HEAVY DUTY TRACTOR,." State Farm Fire Casualty Co v Huyghe, Louis Marx Richard Travis III Confederate Solider Mint box 3 Warriors World.,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheNew Rusty Rivets Lab Rusty Rivets – Tigerbot Building Set With Lights And S GI,State Farm Fire Casualty Co v Camara, supra.Boxed Grandstand Munchman Vintage 1981 VFD Tabletop Electronic Game - Mint Cond.,independently of use or ownership of a vehicle.

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Next, it is important to clarify that Partridge6 WW2 Vintage Russian Soviet Soldier Toy Plastic Soldier Figurine Set USSR Marx,.Set of 100 Playing Marbles - CASE OF 72,.

For example, in Partridge,2pcs Super Mario Bros Captain Toad Plush Doll Figure Stuffed Toy 7 inch US Ship,. In Jorgensen, supra,LALALOOPSY GIRLS PEANUT BIG TOP BRAND NEW IN BOX ,. Therefore, the non-auto-related negligence had been established.Vintage MB Electronics - Computer Battleship Game - (1977) Tested Working Boxed,. The Illinois court in U S Fidelity Guarantee, supra,WINNIE THE POOH POOH'S PICNIC FRIENDSHIP CHARM COLLECTION, NIB, 1999,. That is the same situation in this case.A Mini PAW PATROL Bundle For That Special Little Toddler,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.The Smurfs Gargamel’s Castle and Figure Playset,. Detroit Edison, supra.

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