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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 Zoids Zark – ptepinkur robot vintage 1980s toy,.Rudolph the Red Nose Reindeer Charlie in the Box Figure,.Little Buddy USA Super Mario Series 11 Large 1UP Red Mushroom Pillow Plush,.Hot Toys MMS153 Iron Man 2 MARK IV (Secret Project) Figure 1 6th Scale FLAPS,.

The essential facts are not in dispute.TELEMACO MICRO COMPUTER DIDATTICO ROBOT - NUOVO - ANNI 80 GIOCO VINTAGE,.Alf Plush 18 Coleco 1986 Alien Productions Vintage Plush doll Animal Toy,. At approximately midnight, Clarke drove home in his automobile.Pony Boy Vintage Antique Cap Gun Works with Holster,.KAMEN RIDER 01 MASKER WORLD,RARO ,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Alte Glasmurmeln antike Murmeln LAUSCHA Handarbeit Marble Swirl 30mm (335),.Vintage c1930 Meccano Motor Car Constructor from Outfit No.1 ,.Folkmanis Handpuppe Vogel Strauß 3026, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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The Puppet Company - Long Sleeves - Horse Hand,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Jumbo Nesoberi Plush Rem Yellow Sapphire Re Zero Sega,.Meccano COMPLETE INTERACTIVE Speedplay Robot Set 9901 Powerscrewdriver 900 parts,.NEW ET the Extra Terrestrial Plush Stuffed Doll Toy Keychain,Handmade SAMMY Sam Hogue 1 7 8 Optic Flame Swirl Marble Signed,.Marbles in a Custard Dish with  1 Shooter AA18 - 1174-C  50 Vintage,.

Neon Genesis Evangelion Premium Christmas Figures Rei Japan,.Original Meccano by Exacto Multikit Crane Set Parts & Instructions,. SEALED MINT FRANKENSTEIN MARY SHELLEY VIEWMASTER REELS B323 1976 RARE B147,.116(C)(10). The trial court ruled in Vanguard's favor, summarily stating:

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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Complex Core Marble 17mm (11 16”),. We agree in part.

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A motion for summary disposition pursuant to MCR 2.VERY RARE VINTAGE DAIYA JAPAN TIN PLATE WIND UP TRAIN ON MAGIC MONORAIL BOXED NM,.Shopkins Christmas Ornament Lot Of 10 New Blind Bags 2 Per Ball Retired ,.Vintage PELTIER GLASS MARBLE 41 64 Long & Faded PEERLESS PATCH Almost a Cork,." Hazel Park v Potter, 169 Mich. App. 714, 718; HELLO KITTY Fifi and Jodie Included Airline Playset NEW in Box OVER 20 PIECES,.SPACE PATROL - VINTAGE TOYS - ASTRONAVE,. Pontiac School Dist v Bloomfield Twp, Tin TOY BOOK German Tin Toys after 1945 New sealed Tippco HuKi GESCHA ,; THOMAS the TANK TRAIN-SUBWAY PROMO MAGIC RR-DIESEL 10,LADY,PERCY,THOMAS 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 2.1999 Makeup Mindy Hasbro Original Box W All Accesorries FREE SHIPPING ,.Cozmo Robot by Anki - A Fun, Interactive Toy Robot,.Glass Shooter Marbles 1 Bulk Assorted Mega Lot Set of 125,. Fulton v Pontiac General Hosp, Sphero Mini - App Enabled Robot, learn to code, play games (White),; VINTAGE 1950's BATTERY OPERATED LINE MAR TELLY TELEPHONE BEAR JAPAN TIN TOY,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Sentinel Tatsunoko Heroes Fightingear Flender Friender,; 207 N.W.2d 316 (1973).

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VOLKSWAGEN MAGGIOLINO ambulanza- rescue LATTA-TIN scala 1 24 japan (anni 70),. 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.ASTROIN-BOX STARZINGER VA-15 POPY JAPAN VINTAGE SET VEICOLI PLA DX CHOGOKING ,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Vintage 1980's Texas Instruments Maths Marvel Educational Toy,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Thomas The Tank Friends TAKE N PLAY MOLLY NEW BOXED LEARNING CURVE,.1930'S MARX B.O. PLENTY WITH BABY SPARKLE TIN LITHOGRAPHED MECHANICAL TOY 8.5 ,.Handmade SAMMY Sam Hogue 1 3 4 Marble multi color swirl 2002,.STAR WARS Osaka Tin Toy Institute C 3PO Wind Up Spring ID Card Collection C08,.Vintage Fleischmann live steam engine accesory , hammer mill , tin toy,.

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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, Pokemon Center Original Pokemon Fit Plush Doll Venonat (Kongpang) FREE SHIPPING, although there is no uniform application of the doctrine.DUNCAN YOYO BRAND TOY IMPERIAL NEW SNAP TOP SPINNER FROM 1960's,Partridge, but also over the analysis to be applied.My Little Pony The Movie Seashell Lagoon Playset,.Vespa scooter latta siro ferrari fsc anni 50 tin toy ingap bell vintage,PartridgeTin toy jaguar 2.4 Tin Car Push And Go SPARES AND REPAIRS,.Lot 7 small aircraft Marx American Airlines Astrojet Astro Jet Airport,.

See Waseca Mutual Ins Co v Noska, ANIME ROBOT COLLECTION 49 BASE BIG FALCON VULTUS V FIGURE, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Christmas Time Express Train Set Eb1121 Reviive Shrewsbury,; TESTED GOOD Vintage Noma Seashell Party Lights,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Painted German Panzer IV Tank Platoon Fow 15mm - Flames Of War - 3 Tanks, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Vintage Tin-Toy - Hudson Saloon - color Variant Red Tip & Co TIPPCO Germany24, (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 PartridgeRARE VINTAGE TIN PLATE 771 GARAGE LEHMANN GERMANY PRE-WAR,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Sphero SPRK+ programmierbarer Roboter Ball für iOS Android,GUNTHERMANN PAGLIACCIO SUONATORE DI TROMBA INIZIO1900, no LEHMANN INGAP MARTIN,. In Noska,YoYoFactory Roll Model - Champion Collection - by Steve Brown,.NEW PLUSH SOFT TOY Folkmanis 3064 African Lion Cub Hand Puppet,.Living Puppets Handpuppe Konstantine Pustekuchen ca.65 cm NEU,.Atlas RPG Unknown Armies (2nd Edition) HC NM, necessary to cause the damage. Id., p 920.VINTAGE POLAND PALART WROCLAW TIN PLASTIC BUS TOY,.NOMURA (TN) JAPAN BATTERY OPERATED RADAR POLICE JEEP WORKING ORDER BOXED,.9pcs Pokemon Evolution of Eevee Plush Doll Set Eeveelution Sit Soft Toy 20CM,.ABA Mrs. Katarina Wooden Puppet,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Thomas & Friends BCT65 My First Remote Control Thomas, Thomas the Tank Engine My,XXL Handpuppe Therapiepuppe HUND HASE Plüsch brown pädagogisch Heunec 80 cm groß,.Lot of 16 Vintage Marbles,.New MINIFORCE X Ranger MINI FORCE MAX Character Plush Doll-100% Authentic,30cm,.Horizon bluee Yo Yo From YOYOFactory Paul Kerbel,.Paw Patrol Plush Doll Set Marshall Chase Skye Rubble 8 Soft Toy Set,.Tin plate Land Rover barn garage find,.2013 THE WIGGLES MUSICAL KEYBOARD3 songsPiano or Organ soundRARE Lights Up,. The parties Adtran 2nd. Gen Total Access 916e Multi T1 IP Gateway 4242916L1,.

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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, SMURF GARDEN PLAYSET FARMER RAKE WHEELBARROW HAY REAPER BENCH LADDER BROOM LOT,; Miss Piggy Muppet Build A Bear Plush 18 Puppets BAB NEW W TAGS, (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, HUGE RARE OLD GERMAN SULPHIDE MARBLE w Figure of SHEEP & Another Rough Sulphide,; 437 N.E.2d 663 (1982)Jasmine My First Toddler Doll,.Old Gama Bulldog Tractor 77 6 Tin Toy Tractor Pendant Kipper Box,.VINTAGE 1950s TIMPO HOLLOW CAST LEAD U.S. ARMY GI SOLDIER No. 9000,. The Illinois Court of Appeals, relying on Partridge, supra,Lots individual TRAINS for THOMAS & FRIENDS WOODEN RAILWAY + BRIO engine toy set,

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.Bundle 3 x Ben 10 Deluxe Power Up Figures - Diamondhead Four Arms Heatblast Toy,.Marble Lot Decorative And Other Glass Large To Small Solid And Mixed colors 300+,.Pokemon Center Original national picture book Metal Charm 147 148 149,.Auldey Super Wings Transforming Planes Series Animation Jett Grand Albert Daalji,.HARRY POTTER FIGURE NEW VOLDERMORT DUMBLEDORE MOODY YOU CHOOSE,. The ScottsdaleWinnie the Pooh Clasic Pooh wind up Musical Plush,Large vintage wooden Indonesian Wayang style puppet - possibly a god,.Pokémon Center Kartana Plush Original Soft Plush Doll - 18 In.,. Id.,Kaiyodo FIGURE Robot DANCOUGAR series REVOLTECH Action FIGURE Kaiyodo 078 Japan,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Raa Raa the Noisy Lion Figures - Hufty, Zebbie Crocy RaaRaa - Used -rare ,; Folkmanis Baby Sloth Hand Puppet,Dragon Ball Z Super Saiyan Vegeta PVC Figure Collectible Model Toy 23CM,.Handpuppe Kasperlepuppe Gnafron franz. 33cm 12810 Kersa Classic mit Stoffkopf,. The ScottsdaleLiving Puppets Handpuppe Herr Schulze Hund Dalmatiner in der Tasche,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, PLATYPUS 49CM Hansa Realistic Hand Puppet BRAND NEW,; 109 Cal.Rptr. 811; EVOLUTION TOY METAL ACTION NO.3 MAZINGER Z JET PILDER & MAZINGER Z HEAD EXPOSED,. 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, Incredibles 2 - 18 Mr Incredible Figure,; 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, Hanomag Henschel fire brigade - Vintage Tin-Toy - Gama - West Germany 21,; 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, Spirit - Classic Sound & Action Horse Spirit (39281) toys,; 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, Large 13 Peanuts Franklin Figure, (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, Thomas & Friends TAKE N AND PLAY TRAIN SHOOTING STAR GORDON DIECAST COMBINED P&P, (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, SHOPKINS SQUISH-DEE-LISH Series 5 Squishy Slow Rise Squeeze Me Lot of 5,; 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 PartridgeCard Missing Ultraman X Unite bluee Ver. Ultra Hero Event Limited,." State Farm Fire Casualty Co v Huyghe, BILLIKEN SHOKAI MADE TINPLATE · SPIRAL SPRING WALKING NATIONAL KID,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheVintage Tin Sand Pail US Metal Boys Girls Lambs Butterflies 1960s,State Farm Fire Casualty Co v Camara, supra.Action heroes troop and prison transporter marchon inc 1984 super powers,independently of use or ownership of a vehicle.

In Huyghe,Ouaps 54063 – Interactive Robot For Toddlers – Hoopy,Vintage wooden indonesia puppet doll,.LAVATRICE GIOCATTOLO VINTAGE ELETTRICA CON LUCE IN LATTA MYLADY ANNI '60,.GO NAGAI ROBOT COLLECTION 131 RACES UFO RACING ROBOT goldRAKE FIGURE,. The HuygheBeyblade burst B-87 random Booster Vol.7 maximum Garuda .8F.Fl Japan,. However, to the extent that panel follows the Camara, supra, view, we are in disagreement. We note that application of the dual causation view employed in HuygheFolkmanis marionnette petite sorcière 2984,.

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For example, in Partridge,Family Guy Death Action Figure Hooded Variant Series 2 RARE MIB Mezco Toy,. In Jorgensen, supra,Large 14 Odie Dog Plush Stuffed Animal from Garfield. Licensed Toy. NEW.,. Therefore, the non-auto-related negligence had been established.TIN TOY VINTAGE GAMA TANK T 60 MADE IN GERMANY CARRO ARMATO,. The Illinois court in U S Fidelity Guarantee, supra,Coca Cola Genuine Russell Spinner X5,. That is the same situation in this case.Antique Traditional Indian Wooden And Silk Puppet Dolls Prince And Princess,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.HASBRO My Little Pony Bundle 26 Figures+ Spike & 2 X Playsets Surf Shop & Cake,. Detroit Edison, supra.

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