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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 VINTAGE JAPAN TAIYO BATTERY BUMP-N-GO LITHO RED TIN TOY CAR MERCEDES-BENZ ,.Vintage rare tin toy car congreenible Mercedes 190 SL Höfler Good cond. 50's,.Pokemon Center Original Plush Doll AchamoDoll OA,.ROBOT TRAINS Mini Vehicle Storage Engine 29 cm,.

The essential facts are not in dispute.goldRAKE JUMBO CM. 60 GO NAGAI EVOLUTION GRENDIZER TOY,.UBTECH Robotics Jimu Robot Karbot,. At approximately midnight, Clarke drove home in his automobile.Vintage Marble, Peltier, Vitro Agate, Christensen, Champion,.Mitsuwa Johnson High Power 175A (Right) Outboard Motor New in Box From Japan,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.[Set of 2] Barysan Hand Stuffed Mini Puppet,.Sons of Anarchy - Gemma Teller Morrow 6 inch Figure - Mezco Toyz Free Shipping ,.1950s MGA Rodster Tinplate windup car, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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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.Horikawa Battery Operated Engine Robot,.MICRONAUTS Giant Acroyear - Airfix - Mego Corp - 1978,.Beyblade B-09 Burst Bey Stadium Standard,." Hazel Park v Potter, 169 Mich. App. 714, 718; VINTAGE LINDA NO.9002 RACING PLASTIC CAR FRICTION MADE IN SINGAPORE (RED),.2009 Pokemon Rival Reactors Electronic Snorlax Action Figure Jakks Tested Works,. Pontiac School Dist v Bloomfield Twp, Army Painter - Warpaints Kings Of War Greenskins,; Qaba Girls Pink Ride-On Rolling Horse Kids Plush Fun Toy Battery Operated 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.Vintage Tin Greyhound Scenicruiser S963 Toy Made In Japan,.Marble King Superman MARBLE  Authenticated    NONE on Mint LAST ONE.,.Little Thinker Puppe Nietzsche,. Fulton v Pontiac General Hosp, Antique Rare Early Train Steam Engine 1900s Metal Tin Large 16 American vintage,; BARNEY THE DINOSAUR ACTIMATES INTERACTIVE TALKING SINGING 1997 VINTAGE PLUSH,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, INFINITY 0665 Hassassin Muyibs (Haqqislam) FACTORY SEALED,; 207 N.W.2d 316 (1973).

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Distler Electromatic Power Filling Station, W. Germany, Battery Op, 1950 w Box ,. 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 Georg Heyde English Foxhunt Men Women with dogs,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, EVOLUTION TOY DYNAMITE ACTION No. 17 BRAIGER ESPOSTO,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Original 1993 Power Rangers Tyrannosaurus Rex Battle Bike Box Sealed,.MARX Airport Playset 23 Figures; Motorcycle, Police, cart with pusher, many more,.Vintage 90s Toy Biz Pokemon Collector 8 Marble Lot w Electabuzz Bag FREE SHIP,.Vivid Imaginations 51001 - Captain Scarlet Angel Interceptor Jet Fighters,.HANDMADE GLASS MARBLE 1.023 -PEPPERMINT CANDY-TRANSLUCENT CHERRY RED & WHITE,.

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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, MARIONNETTE NEPALAISE 2 FACES GANESH ET KUMARI ARTISANAT FAIT MAIN G4-1638, although there is no uniform application of the doctrine.Handmade Crochet Toys Totgold Inspired,Partridge, but also over the analysis to be applied.Tin Locomotive Total length about 31.5 cm Mainspring,.Professor Puzzle Box of Nails,PartridgeBrian's Mitsubishi Lancer Evolution VII The Fast and the Furious Movie,.Tin Toy Figurine Greek Mercenary 5th century BC 1 24 scale 75mm Handwork,.

See Waseca Mutual Ins Co v Noska, VTG GREEK PLASTIC MOTORCYCLE BIKE AGV MALBgold MOTOCROSS KIDS HELMET NOS 7, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Lot Over 2000 Antique Mixed MARBLES Medium Flat Rate Box Full Over 20 ,; Vintage CAC 'DIAPER-FOLD' ONYX MARBLE 3 4 Shooter Slag HAND-GATHERED & STRIPED ,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Pokemon Center Original Schedule Book 2018 Pikachu One Point, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, VINTAGE LARGE TINPLATE & PLASTIC FIRE ENGINE WITH FIREMEN - FRICTION DRIVE - VGC, (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.

The crucial inquiry in applying PartridgeBig Mouth Billy Bass singing dancing fish Anniversary Edition,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, GIORDANI GO-KART NUOVISSIMO INTROVABILE NEW ,FEWTURE EX GOKIN GATCHAMAN THE GALACTICYCLE THE SWAN JUN IL CIGNO G-3 REPAINT,. In Noska,The Puppet Company Circus Tent And Finger Puppets Animals Ring Master Rare,.Pokemon Center Original Pokemon Fit Plush Doll Venonat (Kongpang) FREE SHIPPING,.Icarus Toys x Miracle Aim Super Vinyl Voltes V Vultus V 100cm New,.Quality WHS Solid Wood Puppet Theatre with Seven Character Finger Puppets - VGC, necessary to cause the damage. Id., p 920.MB SIMON GAME 1978 BOXED VINTAGE RETRO VERY RARE UNUSED BEEN IN LOFT FOR 40 YEAR,.Battery Operated Greyhound Lines Scenicruiser Express Japan Tin Bus with Box,.Ugly Doll Hello Kitty Wage - 7 in Plush,.Shore Trooper Rogue One Star Wars Story 1 10 Premium Figure,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, STAR WARS X-WING GDM Ala-U SWX62 NEW SEALED ITA,MARX BATTLEFIELD RANCH PLAYSET DESTROYED CABIN BATTLEGROUND ACCESSORY BLDG.,.SCARCE BOXED TIN PLATE TOY FRICTION AMBULANCE CAR 1950s 60's,.Vintage Rescue-8 Emergency Tin Toy Helicopter Made in Japan,.Vintage Marx Tinplate Remote Control Jeep with gun,.Thomas and Friends --Diesels in Disguise DFW82 2015,.Sterling Chris-Craft 21' Cobra Boat Kit,.Spongebob Squarepants Mr. Krabs 5-Inch Vinyl Figure,. The parties GEOFFREY BEETEM HANDMADE GLASS MARBLE 1.350 -MAGENTA TWISTED RIBBON CORKSCREW-,.

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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 REALLY RAD Robot TOYMAX 1992 Retro Robot WITH REMOTE,; EXTREMELY RARE VINTAGE RIBENA LCD ELECTRONIC HANDHELD GAME & WRIST WATCH NOS, (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, Schuco Varianto 3042 Lasto mit Schlüssel no. 2, Wire & Kreuzung,; 437 N.E.2d 663 (1982)Authentic Brio Wooden Thomas Train Sir Handel HTF UK ,.RARE VINTAGE CADILLAC ELDORADO TIN TOY CAR MECHANICAL REMOTE CONTROLLER,.Yo-yo russel coca cola silverina,. The Illinois Court of Appeals, relying on Partridge, supra,3 Pcs Despicable Me Minions 16 Plush Stuffed Cute Animal Doll Toys,

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.VINTAGE MARX BATTERY OPERATED REMOTE CONTROL ROLLS ROYCE IN ORIGINAL BOX WORKS ,.YO GABBA GABBA Singing Music Boom Box Playset Only No Figures 2013 Sounds,.VINTAGE TIN LITHOGRAPHED FRICTION YELLOW MG TF CONgreenIBLE TOY CAR JAPAN 1950's,.THOMAS THE Train FRIENDS INTERACTIVE WATER TOWER & TANKER CAR,.The Meccano Engineer's Meccano Parts Handbook,. The ScottsdaleTin Toy Figurine Nubian Horseman Army of Hannibal 1 24 scale 75mm Handwork,Beautiful Antique German 21 32 White Latticino Core Marble,.My Little Pony So Soft Rag Doll Rainbow Dash 9 Plush with Blanket RARE ,. Id.,Vintage A.C. Gilbert Erector Set Original Wood Box 100 % Complete 1926,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, 2 x Video Command Action Figures Hawkeye Stinger 1992 Toy Island Enemy Command,; Pokemon Center Original Plush Doll Let's go Pikachu Patrol Wear Pikachu,Large 11 Namco Toy Factory Pink Pacman Pink Ghost Plush Doll Rare ,.Rainbow Dash NEW in Box 2002 My Little Pony MIB Charm Hasbro,. The ScottsdaleVintage Akro Agate Popeye Hybrid Creamsicle Corkscrew Marble,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Super rare BEYBLADE ADVANCE ETERNER MS Takara Random Booster 4 NEVER USED,; 109 Cal.Rptr. 811; Old Tin Toy Car Attic Find Tin Car Jean Höfler Height 136 classic car,. 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, Puppet Doll Dresdner Künstlerpuppen New Seppel Made of New Manufacturing,; 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, BRAND NEW STRAWBERRY Cloudy Chance of Meatballs 2 Barry SOFT CUDDLY TOY,; 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, Living Puppets® hand puppet Gregor the dragon W316,; 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, Old Unusual 19 PC Trico Japan Composition Military Army Soldier Set w Mounted, (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, Folkmanis marionnette renard arctique 3042, (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, Midnight Shadow Set Kamen Rider Drive Shfiguarts Magical Chaser First Edition,; 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 Partridge34 Antique Onionskin Joseph’s Coat Marble Marbles Jaques Solitaire Board,." State Farm Fire Casualty Co v Huyghe, Simba Bob der Baumeister Plüschfigur 45 cm,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheVintage tin toy car congreenible friction made in japan 60's Good Condition ,State Farm Fire Casualty Co v Camara, supra.Folkmanis hand puppet piglets 2949,independently of use or ownership of a vehicle.

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For example, in Partridge,10 POUNDS OF JABO CLASSICS 5 8 IN ( +or-) MARBLES 42.99 POSTPAID,. In Jorgensen, supra,6X(MAGIC YOYO N8 Aluminum Professional Yo Yo - bluee T6H9),. Therefore, the non-auto-related negligence had been established.New NIB Paw Patrol Mission Command Microphone Roleplay Toy,. The Illinois court in U S Fidelity Guarantee, supra,JODY FINE HANDMADE GLASS MARBLE .888 -CITRUS PINWHEEL-RED GRAPEFRUIT,LEMON,ORG.+,. That is the same situation in this case.Critical Hit ATS SEALED FATE wargame a war game juego jeu gioco gmt hill,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.1986 Coleco 18 Inch ALF Plush Doll,. Detroit Edison, supra.

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