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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 Epic - Tyranid Dactylis - 6mm,.Marx Shark Shoot Shooting Gallery in Original Box,.Ishin Nishio Animation Project Story Series Products Madogatari Exhibiti Japan,.Spongebob Spongebuddy Talking Smartypants Squrepants Doll Ages 3+ Toy,.

The essential facts are not in dispute.The Puppet Company - Traditional Story Sets - Three Little Pigs & Wolf Finger,.Kongkongi Kongsuni Talking Crying Baby Care Role Play Character Toy Kids_RU,. At approximately midnight, Clarke drove home in his automobile.Big hero 6 baymax Action figure Sounds Lights Projectile Arm Punch 11”,.Rare german prewar soldier Lagerleben with accordion ELASTOLIN LINEOL,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.PJ Masks 15Cm Deluxe Talking Catboy,.ANCIENNE TETE DE MARIONNETTE BIRMANE PUPETT HEAD BURMA,.DE AGOSTINI SPACE BOY ROBI - HUMANOIDER ROBOTER - JAPANESE EDT - MEGAMAN, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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1 vintage original car in tin plate made in Portugal 1960's,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.4X Super Mario Bros 3D World Cat Mario Luigi Princess Peach pinklina Plush Toy,.Marvel Education Company - Multi Ethnic Career All Career Puppets - 6 Puppets,.Set of 4pcs Super Mario Bredhers Goomba Boo Ghost Bowser Koopa Plush Dolls Toys,Vintage Ohajiki Flat Marble Glass 52 pcs Showa Retro,.Harry Potter and the Deathly Hallows Draco Malfoy figure,.

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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.Playskool Friends Pinkie Pie Party Popper,.Meccano Mechanical Workshop COMPLETE Special Edition, Case, 6V MOTOR & Gear Unit,.Taurus- Nascar- ELLIOTT SADLER- 30th Birthday-April 30, 2005 w Card-,." Hazel Park v Potter, 169 Mich. App. 714, 718; Giant Peppa Pig Plush Soft Toy 4 Cute Phrases Large Friend Bedtime Cuddling Fun,.Lot Vintage Tonka Maple Town Critters Ice Cream Shop Hospital Dining Living,. Pontiac School Dist v Bloomfield Twp, Japanese Pokemon Center Minccino Musical plush doll 2011 winking dress up wings,; Vintage Spin & Spark Tin Toy Red White bluee 4th of July Works Needs Adjustment,; 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 1980 Ben Cooper PAC-MAN blueE GHOST with tag,.8310017 Whole Sponge Cake Porcelain Dollhouse Doll Doll,.YoYoFactory Aluminum Dream Yo-Yo -Straight V-Shape Profile YoYo,. Fulton v Pontiac General Hosp, Vintage Tinplate Tonka trencher 2534. Boxed. Good Condition,; STEAM TOY ACCESSORY ARNOLD BING WILESCO MARKLIN MARX GUNTHERMANN,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Genuine Power Rangers Ninja Steel DX Ninja Battle Morpher Red & bluee Brand New,; 207 N.W.2d 316 (1973).

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VHTF Akro 5 color Corkscrew W Egg Yolk Huge .864 Smaller Than 7 8 NM,. 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.TRASFORMER ROBOT GIG CRONO JET TAKARA 1984 VINTAGE TOYS,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Vintage 1977 Kenner General Mills Tree Tots Sky Coaster with box parts only,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.The Real Ghostbusters Battery Operated Pinball Game by Jotastar, 1986, Boxed,.SET DA CORSA tempo libero, bambini, giocattoli 024 32004,.Handmade SAMMY Sam Hogue 1 3 4 Marble multi color swirl 2002 EC1115,.Hexbug Mini Roboter Toybots Nano Glow in the dark Krabbelkäfer Hex Beetle,.TRI-ANG Vintage Scalex boat Derwent Cabin Cruiser electric toy with original box,.

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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 Go Charmander Squirtle Bulbasaur Plush Soft Teddy Stuffed Dolls Xmas UK, although there is no uniform application of the doctrine.Funko Pop Marvel Doctor Strange (Ghost Rider) LA comic Con Exclusive,Partridge, but also over the analysis to be applied.HUG tto Pretty Cure Pretty Cure Style Doll Cure Amur,.Marbles Jabo 12-16-08 3 4 Tribute Last Dance gold Lutz strike. Mint minus,PartridgeQUANTI BY SEBINO VINTAGE 1980 PLAY AND BUILD CONTAINER CONSTRUCTION SET MINT BOX,.My Little Pony G1 Vintage Pegasus Flutterbye Rainbow Pony (1984 HONG KONG ),.

See Waseca Mutual Ins Co v Noska, Joshua Hamra Signed Hand Made Marble bluee Swirl, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Holiday Express Christmas train set Battery operated Santa Decoration Working,; Argus Model Ship Building Contest Australia Corvette 1946,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, BASSET HOUND Dog Puppet in USA Folkmanis Puppets, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Oscar the Grouch Hand Puppet Sesame Street 65 cm Plush Soft Toy, (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 Nomura Toy Nikko Toy Tinplate News Boy Japan 1940's Vintage occupied japan,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Hand puppet Jenny 45 cm W120 Living Puppets®,Helen of Toy Supreme Command Game,. In Noska,Pair of Vintage Wind Up Tin Toy Boat Ship Metalmania Mars Explorer Water Ride US,.Rare Vintage Mego Starsky and Hutch 8 Doll Action Figure,.Vintage DISTLER Electromatic Power Filling Station with Studebaker & Great Box,.2013 Dreamworks How To Train Your Dragon HOOKFANG Action Figure 12 , necessary to cause the damage. Id., p 920.SIMBA 109318728 Lion Guard Pride Lands Figure Playset BNIB - Free delivery ,.DREAMWORKS TROLLS DJ SUKI 9-INCH FIGURE,.Jean Höfler - Vintage Toy - Car Set 60èr Years - Germany - OVP VW Bulli etc,.TIN TOY (railroad car) W400 X D130 X H160mm 1150g STEEL ANTIQUE-TASTE BO-111,. Id., p 923.

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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, Star Wars Rogue One Wirbel-Action Lichtschwert Hasbro B8263 Laserschwert,; DANGUARD DX POPY GA-79 VINTAGE JAPAN BELLO , (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, TIMBER WOLF Puppet Full Body 18 LONG USA Folkmanis PUPPET,; 437 N.E.2d 663 (1982)1000 CHAMPION 5 8 (+or -)GREEN TRANSPARENT MARBLES 30.99 POSTPAID,.MARX Alamo Lot of 25 Shako Hat bluee Mexicans Sealed Plastimarx,.My Little Pony Equestria Girls FASHION SQUAD Rarity Pinkie Pie 40+ Accessories,. The Illinois Court of Appeals, relying on Partridge, supra,VINTAGE CLIFFORD TOYS BATTERY OPERATED FISHING BOY IN BOAT WITH ORIGINAL BOX,

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.Pokemon Eevee Exclusive 6.5-Inch Plush [Standard Size],.Meccano COMPLETE INTERACTIVE Speedplay Robot Set 9901 Powerscrewdriver 900 parts,.ORIGINAL EARLY BOXED PHOTOING ON CAR TINPLATE BATTERY OPERATED,.VINTAGE KOKYU JAPAN - TIN LITHO FRICTION FIRE ENGINE - AUTO POP UP LADDER & BELL,.Finchen Handpuppe Sesamstrasse 45 cm Plüsch Figur Kuscheltier,. The ScottsdaleKAIYODO REVOLTECH EVANGELION EVOLUTION EV-001 EVA-01 TEST TYPE NUOVO NEW,8310018 Whole Sponge Cake Porcelain Dollhouse Doll Doll,.Airplane JOUSTRA CAV 3 - 147 OLD FRANCE FRICTION TIN TOY RARE VINTAGE,. Id.,Wargame Legend Begins 3 ed.by Terran Games no GMT MMP AH DG GAMERS SPI Avalonl,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Beyblade burst BG-04 random layers collection vol.4 whole set of 5,; SPIDERMAN POPY D-03 GP-7 ROBOT TOY VINTAGE,Jurassic World FMB92 Hatch N Play Dinos Velociraptor Playset,.Kenner Play Doh Stone Presto Molder Farm Set Play Set Rare Vintage 1960's,. The Scottsdale2X Pokemon Center Eevee Poncho Vaporeon Glaceon Plush Doll Soft Figure Toy 7 ,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, MINT 1950's LINEMAR BATTERY OPERATED SLEEPING BABY BEAR TIN LITHO TOY JAPAN MIB,; 109 Cal.Rptr. 811; WYRD THROUGH THE BREACH The Fatemaster's Almanac WYR30101 ENG NEW,. 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, Galt Toys Glow Super Marble Run,; 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, Bikiken Japanese HERO Nanairo Mask Tin toy figure Vintage rare from JAPAN Z9,; 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, THOMAS & FRIENDS WOODEN RAILWAY - gold PROSPECTOR'S CARS 2006 - ABSOLUTELY 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, Kamen Rider Build RKF Legend Rider Series Kamen Rider Build Genius Form, (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, Toy PAZ Robot, height 31cm, (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, Atlas Games FENG SHUI 2 - Game Book,; 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 PartridgeCozmo Robot Toy by Anki RARE Hottest Electronics Toy 2017 Brand new sealed,." State Farm Fire Casualty Co v Huyghe, HANDMADE GLASS MARBLE 1.330 purple CORKSCREW BOULDER-MAUVE,blueE,LAVENDER,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheMcStuffins 5203 Active Telephone and Piano,State Farm Fire Casualty Co v Camara, supra.Duracell Bunny Mountain Bunny Very collectable adgreen memorabilia Moving Toy,independently of use or ownership of a vehicle.

In Huyghe,YAKELUS 7pcs Russian Nesting Dolls Matryoshka handmade0707,RSPCA Animal Hospital Adventure Rescue Bundle - Vehicles - Stables - Igloo,.Ben 10 Four Arms Action Figure,.THORGERSON HANDMADE GLASS MARBLE 1.070 -ALGAE in the LAKE-ROYAL,SEAFOAM,NAVY,GRN,. The HuygheA set of 12 Vintage Tin Police Badge pin brooch Made in Japan 1960's,. 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 HuygheMEZCO POPEYE THE SAILORMAN WIMPY 5 INCH FIGURE MOC,.

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For example, in Partridge,Vintage 1960's Yone Happy & Sad Magic Face Accordion Playing Clown Battery Op,. In Jorgensen, supra,Toy Airplanes Tootsie and Japan Tin Friction and Die Cast,. Therefore, the non-auto-related negligence had been established.SELDOM SEEN VITRO AGATE Veneered Multi color Vintage Glass Marble Marbles MINT,. The Illinois court in U S Fidelity Guarantee, supra,New Totgold Coat Baymax Soft Stuffed Plush Doll Action Toys Kids Birthday Gift,. That is the same situation in this case.Jim Hensons Muppet Fozzie Bear 25 INCH,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.VINTAGE MINISTER DELUX TIN FRICTION CAR IN ORIGINAL BOX,. Detroit Edison, supra.

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