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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.


Defendant Melinda Clarke appeals Einco - Vintage r c Leopard Tank - Boxed - Rare,.My Little Pony Funko Vinyl Figure - Shining Armor,.1974 Weebles West Playset Western toys in original box Cowboys Indian Hasbro set,.VINTAGE METAL SOLDIER 11.5 tall,.

The essential facts are not in dispute.Homemade puppet show booth with puppets ,.WILLIS HANDMADE GLASS MARBLE .832 -DEEP CHERRY goldENROD GINEA-YELLOW,CARAMEL,OR,. At approximately midnight, Clarke drove home in his automobile.1966 LOST IN SPACE TOY ROBOT By REMCO working,.YAKELUS 10pcs Russian Nesting Dolls Matryoshka handmade1084,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Vintage BRITAINS Lead Soldiers, set of 4 Mounted Dragoons,.1988 Rare Vintage Garfield 10th birthday celebration puppet plush collectable,.Space Toy, UFO X-2, Schall gesteuert, Kunststoff, Batteriebetrieb, OVP, Taiwan., Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

Vtg 80s Lot Of 19 California Raisins Small Vinyl Figures Figurines Music Surf,.FROGGER Vintage Table-Top Electronic Game Boxed CGL Konami 1980's,.RARE VINTAGE JAPANESE TIN FRICTION TOY TRAIN OLYMPIA EXPRESS JAPAN MADE BOX,.Boy puppet like Denis the menace26 Ventriloquist,Educational.Moving mouth arm,.

ANTIQUE GERMAN HANDMADE GLASS MARBLE .653 COBALT blueE ONIONSKIN PLAYER-WHITE,.SUPERB LEHMANN NO 772 DOUBLE GARAGE (1930's) (MINT),.Himeko Inaba Kokgold Connect High Grade Summer Beach Figure Iori,.Power Rangers Super Megaforce Deluxe Super Mega Blaster x 2 (RED & blueE KEYS),.Vintage 1970s Hanna Barbera Top Cat Keychain Set Lot,.

RP2 ODDBODS Lot 5 x mini Figurine 3 FACE, AF8501 Chuddiki, Cartoon,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Mr Potato Head 1953 Hasbro Play Set Parts For Mr & Mrs. Potato Head 27 Pcs,.M.F. CHRISTENSEN AGATE CAC RARE LAVANDER SWIRL MARBLE 13 16 ,.SDCC 2018 The Muppets Dark Kermit (Constantine) 12” Plushie UCC In Hand LE,Yoyo Zeekio Flare Ultra - Delrin and Aluminum Yo-Yo,.Robin Culbertson 1 1 8 Glass Marble - handmade contemporary art,.

6 DollSafe 14 -16 Figure, Gene, Tyler Doll Display Case Boxes - 6 x 3 x 17 ,.WHOLESALE 25ct. LED Boing Puffer Ball - 2Tone Rave Toy,.Vintage Gilbert Erector Sears Set % Complete Green Case 1934,.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.


Vintage Ceramic Lighted Christmas Tree 17 Tall,. We agree in part.

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A motion for summary disposition pursuant to MCR 2.SAN-EI Pokemon ALL STAR COLLECTION Plush Stuffed Doll PP97 Growlithe S 17 cm,.Vintage wooden pull string clowns,.Mattel DC Super Friends Superman Slam and Bam Wall 2007,." Hazel Park v Potter, 169 Mich. App. 714, 718; Star Wars Action Figur Kylo Ren Lichtsensor Sound Wächter Modus ca. 43cm,.3X VINTAGE SESAME STREET MUPPETS 12 ELASTIC PLUSH FIGURES KERMIT ERNIE BIRD NEW,. Pontiac School Dist v Bloomfield Twp, Modern Toys Japan Auto Da Corsa Latta Tin Car Ferrari Maserati ’60 Ingap,; VINTAGE Yonezawa M-75 TIN PLATE ARMY TANK - BATT OP - NIB 1950s Rare,; 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. . . .

ROBOT EXPLORER MOON ROBOT ALES MADE IN HONG KONG VINTAGE,.Vintage Ohio Art Oriental Pattern Play Set,Super Wings MINI Hogi Donnie Jerome Ari Transforming figures Planes 4pcs Set,. Pontiac School Dist, supra.Gemmy Dog Max Sings Your A Mean One w Kohls Mr Grinch Plush Music Sound Animated,.


A motion for summary disposition under MCR 2.Sea Lion Sprawl Series Real Animal Stuffed Doll Japan Plus NEW F S,.VINTAGE MARX TIN LITHO MANSION w Portico HOUSE TOY SOLDIERS 1960s,.Fisher-Price FCV62 - Die Oktonauten - Meeresschleim Oktopod Spielset NEU OVP,. Fulton v Pontiac General Hosp, BATMAN GAF VIEWMASTER REELS 1966 DC COMICS SET B492 RARE D407,; Vintage ERECTOR SET..METAL PIECES..ELECTRIC ENGINE..WHEELS, SCREWS ..ETC,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Vintage Penny Tin Toy Car - Driver. Made By Georg Fischer. Germany 1930s.,; 207 N.W.2d 316 (1973).

Fisher-prize Thomas & Friends Abenteuer Lexi Der Experimentelle Motor,. 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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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.

Empire of the Sun 1st edition GMT unused - opened but unpunched - english,. First, the policy's exclusionary language is not ambiguous.Pokemon Center Original Plush Doll Daruma Pikachu,.Throw 'n' Pop Pokeball Ultimate Throw 'N' Pop Poke Ball Battle Set,. See Allstate Ins Co v Freeman, supra, pp 665-667.Vintage REMCO Falcon Styrofoam Airplane Battery Operated Toy,. We disagree with the trial court's second and third statements.Nursery Rhyme Hand and Finger Puppet Set,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.1512 MINT 19 32 Peltier National Line Rainbo CONFEDERATE REBEL,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Vintage German Swirl Ribbon Marble Handmade R8237,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Folkmanis 3067 Giant Clam Puppet,.Epic - Tyranid Hive Tyrant - 6mm,.Hand puppet Small Rolf the Frog W208 Living Puppets,.Marionnette à main Vache Spectacle Théâtre, Cow Hand puppet Toy, Kuh Handpuppe,.Vintage Schuco Wind Up Monkey playing Violin,.

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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, Vintage original Marx Wagon Train tan covered wagon canopy, although there is no uniform application of the doctrine.BILBY 35CM Hansa Realistic Hand Puppet BRAND NEW,Partridge, but also over the analysis to be applied.Star Wars L' Forza e L'Destino - Cassa di Partenza - Gioco da Ruolo - Edge 2016,.Tranzer General Daimos GA-85 DX Deluxe Popy die cast vintage SPESE GRATIS,PartridgeRare Old Vintage Tin Jogo The Climbing Monkey On Original Card 1930's Made U S A,.Rubber launcher grip red wbba. Limited Beyblade burst B-00,.

See Waseca Mutual Ins Co v Noska, Popeye Wood Jointed Jaymar 6 figure all original w, pipe NM Flexi vintage, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Magic Roundabout Florence vintage Pelham Puppet,; A game of thrones GRR Martin base d20 open gaming RPG rulebook Sword and Sorsery,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, BLOOD BOWL WINTER PITCH on the snow CAMPO double face invernale neve e sangue, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Ultra Rare Matsushima PoP Emergency Vintage 1982 LCD Electronic Game - Mint , (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 PartridgeVtg Sodor Wood Co. With Car & Lumber Set Thomas Train Wooden Railway Green 1997,.

Vintage SCHUCO Varianto 3010 - BAUVOLARGE fur die spiele A - 1950',.Living Puppets Handpuppe purplebell ca.65 cm NEU, Clarke's negligent act.Splash Toys Teksta 360 Puppy,.Vintage Glass Marble . Lot of 145,.Toy Steam Engine Plant Model Double Piston 1900’s Rare German Working,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Care Bears Plush Toy Set Colourful Teddy X4 30cm plush Toy Soft Toy Character.,Old tin toy Bulldozer battery operated - Tractor MSB made in Germany,. In Noska,Vintage 1948 GILBERT No. 6 1 2 ERECTOR SET 100 TOYS IN ONE,.Rare Hanimex Game & Time SEA RESCUE 1982 Vintage LCD Handheld Electronic Game,.LALALOOPSY PET PALS PANDY CHOMPS-A-LOT BRAND NEW,.NEW PLUSH SOFT TOY Folkmanis 3126 Baby Emperor Penguin Full Body Hand Puppet, necessary to cause the damage. Id., p 920.VINTAGE ELASTOLIN LINEOL LOT SET GERMAN TOYS SOLDIERS DOG FIGURINE MEDIEVAL ROME,.HAPPY PLACE SHOPKINS TEDDY BEAR LAMP NO LAMP SHADE ,.Vintage Battery Operated Yellow Toy Train Engine,.Vintage My Little Pony G2 LADY LIGHT HEART W Magic Mirror (Royal Ladies) 1998,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Prewar Lineol standing german SA soldier with field glasses WWII,Trolls Hair Raising Poppy, Branch & Tiny Smidge + Kero Poppy Bug & DJ Wooferbug,.Ryan'S World Mystery Mini Egg Assortment Random Surprise Figure Reviews Toy,.Vintage Battery Operated Texaco Marlbgold F-1 Race Car McLaren M23 Japan Toy,.Shopkins Happy Places Rainbow Beach Mystabella and Rainbow Dreamer set,.Thomas Tank Engine & Friends Plastic Take-A-Long Tote Storage Case - HTF,.REAL KK Slider & DJ KK Plush Toy (set of 2) USA Animal Crossing New Leaf,.400 Antique Vintage Marbles Free Shipping,. The parties VINTAGE PELHAM PUPPET early item,.

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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 Meccano Set with Meccano Power Supply (Over 4.5kg Crane Hook Spanners),; (C5) Bambola Porcellana Doll su la sua scatola'origine del anni '80 (3), (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, K1 Intelligent Fight Robot For Kids' Toy Remote Control Singing Dancing WQ,; 437 N.E.2d 663 (1982)SHAKING CLASSIC CARVintage Battery Tin ToyJapanese Made Boxed,.Old Tin Lead Toy British Grenadiers American Soldier Horse Riders Motorcycle,.Vintage Yone Japan Vintage Tin Plate Litho Scurry Mouse,. The Illinois Court of Appeals, relying on Partridge, supra,HELICOPTER BELL 12 POLICE PARTOL MINT IN BOX BATTERY OP TESTED WORKS GOOD,

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 CLASSIC grand Prix MECCANO 'RACING CAR' IN 1960's formula 1 style,.Imprimerie La Mondiale.jouet tole ancien.Article Français.méthode Fresnes.,.Kids of America Large Plush Gorilla Stuffed Toy 23”,.Funko POP Movies - Zootopia - Vinyl Figure - FLASH Non Mint Box,.Boxed CGL Earth Invaders Vintage 1982 Handheld Electronic Game - Mint Condition,. The ScottsdaleVintage MARX Tin Litho Lever Wind-Up YellowCat w bluee Bow & Red Ball Toy - WORKS,Vintage Ralf The Barking Dog Large Puppet 1992 By Ideal Rare,.RARE SET OF 4 POKEMON PLUSH 2007 TENTACOOL, OODISH, SCRAGGY & DUSTKULL W TAGS,. Id.,VINTAGE BOXED PELHAM PUPPET WELLINGTON TYPE THE WOMBLES,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, All Nippon Airways Tinplate Miniature Set,; Vintage Hasbro Dolly’s Nurse Kit No. 1755,Intelligenter Roboter BAT Yahboom für Arduino UNO R3 blueetooth STEM-Spielzeug,.VINTAGE BATTERY OPERATED TIN SPACESHIP Floating BALL KIDS TOY,. The ScottsdaleAereo A Molla Tini Toy,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer Fantasy Empire Archers Free Peoples (painted) 28mm,; 109 Cal.Rptr. 811; ZOIDS GRAVITY PTERA ACTION FIGURE MODEL KIT 72 NEW SEALED BOX HASBRO 2003,. 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, FACTORY SEALED VINTAGE ELECTRA WOMAN & DYNA GIRL VIEWMASTER REELS SET H3 RARE,; 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, Folkmanis Ragdoll Cat Hand Puppet,; 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, Beautiful Vintage 11 16 Milky Oxblood Marble,; 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, My Little Pony The Movie Pinkie Pie Seashell Lagoon Playset NEW & SEALED, (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, BOGLIN PLUNK BOXED - RETRO TOY, (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, 1980 PALITOY ELECTRONIC SPLIT SECOND HANDHELD VINTAGE RETRO GAME, BOXED GWO LK,; 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 PartridgePainted German Panzer IV Tank Platoon Fow 15mm - Flames Of War - 3 Tanks,." State Farm Fire Casualty Co v Huyghe, Set of 500, 5 8 Glass Player Marbles, Bulk Assorted Mega Lot, Free S&H,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheVintage original Louis Marx sparkling hot rod toy car with driver,State Farm Fire Casualty Co v Camara, supra.Bob the Builder Talking Play Mat, 6 Vehicles and Figures,independently of use or ownership of a vehicle.

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For example, in Partridge,Lot of Vintage Party Noise Makers New Year's Eve Lithograph Tin Toys Clowns,. In Jorgensen, supra,1976 Hasbro Romper Room Weebles Haunted House in Original Box Complete,. Therefore, the non-auto-related negligence had been established.Rare ELASTOLIN LINEOL walking flag bearer flag on shoulder wehrmacht,. The Illinois court in U S Fidelity Guarantee, supra,WILLIS HANDMADE GLASS MARBLE .753 -SOUTHWEST SKIES-BABY blueE,BUTTERNUT,TANGERINE,. That is the same situation in this case.VINTAGE PLAYPLAX RINGS CONSTRUCTION TOY SHAPES YOUNG IDEAS RARE COMPLETE 60'S 70,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Jim Henson 1976 Muppets Sesame Street Bert Statue or Figurine MIB J250,. Detroit Edison, supra.

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