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 Large Beautiful Vgt Marx Rifleman Set ,.Vitro Agate Unique Elite Sparkler Brushed Popeye Oxblood Patch 5 color Marble 3,.Rare Despicable Me Soft Plush Toys x 2,.Vintage Meccano - various brass gears - Lot10,.
The essential facts are not in dispute.M.A.R.S. Autotron - Turbo Fighter Robot,.VERY NICE VINTAGE 1940'S HASSENFELD JUNIOR DOCTOR KIT in ORIGINAL BOX,. At approximately midnight, Clarke drove home in his automobile.Farm Country Big Farm House Playset,.Rarissimo Robot battle jet combattler v Serie 16 Anime Robot Nuovo In Box,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Rare Snoopy Plush Doll 15cm Tall - Very Good Condition,.Hand puppet Joost W644 65 cm of Living Puppets,.My Little Pony Exclusive Nightmare Moon, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.
THOMAS THE TRAIN ENGINE DIESEL BRIO WOODEN RAILWAY 1990,.TRASFORMER ROBOT GIG CRONO JET TAKARA 1984 VINTAGE TOYS,.VINTAGE MECCANO ELEKTRIKIT COMPLETE IN ORIGINAL BOX (),.JUNGLE x JAPANWORLD.IT MIGHTY MECHA SERIES GRENDIZER 55CM METALLIC COLOUR 50 50,.
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USED lot of approx 150 cool marbles _WOAH _ships from AUS _xx49_A4a119,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Sg Günthermann Tramway 846 Station 21 Wagon Friction Tin Toy,.Prewar ELASTOLIN LINEOL soldier on knees with 2 ammunition cases WWII,.Denzi Tiger Made In Singapore Vintage Robot Per Ricambi Sentai Denziman,Vintage Pelham puppet - SL19 Giant in box,.Rarissimo Carro Armato Di Latta Della Gama, Anni 50. Modello Tank Gigant 99 3,.
RARE 1942 GILBERT ERECTOR SET 8 1 2 FERRIS WHEEL,.Vintage 1985 Son Ai Toys MAGIC TURBO RACER 9 in 1 Battery Operated Car Boxed,.Pokemon Center Original Beanbags Plush Doll Squirtle,.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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A motion for summary disposition pursuant to MCR 2.BNIB Compare the market Star Wars Meerkat Toy - Oleg as BB8 - limited edition ,.BUKI PM855 - Box of Marbles,.Lot Of 2 Mike Warren Art Glass Marbles 7 8 Signed by Artist,." Hazel Park v Potter, 169 Mich. App. 714, 718; Vintage German Handmade Indian Marble. .80 Inch Near Mint Condition,.Shimmer & Shine Squishy Palz Toy - Set of 4 - Shimmer, Shine, Leah & Zeta,. Pontiac School Dist v Bloomfield Twp, Japanese Pokemon Center Minccino Musical plush doll 2011 winking dress up wings,; Toy PAZ Robot, height 31cm,; 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. . . .
Vintage Ape Fan Must See Lunch Box,.Generale Rigarn Grande Mazinga Great Mazinger Go Nagai Robot Collection Special,JETCRAFT DERWENT MODEL BOAT No.1,. Pontiac School Dist, supra.Shimmer And Shine Teenie Genies Collect & Carry Genie Case DTK58,.
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A motion for summary disposition under MCR 2.32 VINTAGE 1 INCH MARBLES,.Thomas & Friends Wooden Railway Lighthouse Bridge Light & Sounds Learning Curve,.Vintage Malibu Dancing Bottle Sound Activated Promotional Rare BNIB,. Fulton v Pontiac General Hosp, ABA ABA64013 Zetor Tractor Metal Toy,; Commodore Vanderbilt Locomotiva Tender 3 vagoni Pullmans Observation scala 0 WW2,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Pcs Set 40CM 16 2 Xerneas Yveltal Pokemon Cute Soft Plush Toy Doll Kids Gift,; 207 N.W.2d 316 (1973).
Original Beyblade - Spin Dragoon In Good Condition. With Launcher,. 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.
Authentic Pokemon Center Japan Ditto Jolteon Plush Soft Toy MWT,. First, the policy's exclusionary language is not ambiguous.OSAKA TIN TOY INSTITUTE library Tetsujin 28 No.1 Robot Repro JAPAN 20 cm AGE,.Soryu Asuka Langley Evangelion Movie Version Figure Set,. See Allstate Ins Co v Freeman, supra, pp 665-667.Tradition Magazine, Vol. 1, issues 1-6, in no-harm binder,. We disagree with the trial court's second and third statements.Marx Toys 3 Civil War Flats Cannons TV Scene Warriors of the World Accessories,.
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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Tin Toy Ford Compact Fernsteuerung west germany ANNI 60 lunga 26cm,.
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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, VINTAGE SCOOTER BUNNY TIN TOY FABRIC RABBIT 1960'S WIND UP POLAND ORIGINAL KEY,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Sergei-Compare The Meerkat Official Plush Toy,.Antique Burmese painted teak puppet head, Burma 1 Genuine 19th Century; 51cm,.1950's Linemar Japan Battery Operated Tin Sleeping Baby Bear Boxed Works Great,.VINTAGE RARE FLAT LEAD FIGURES SET 170B '' 18TH CENTURY FRENCH HUNTING SCENE '',.1930s Vintage Rare Mechanical Wooden Handle Spinning Top Tin Toy US Zone Germany,.
Red AkaNinger Shuriken (TV Asahi Omatsuri Festival Version) (Sentai Ninninger), the ownership, maintenance, operation or use of any motor vehicle.MICRONAUTS Giant Acroyear - Airfix - Mego Corp - 1978,.Thomas The Tank Engine Lord Harry Diecast Train Lot Ertl 1997 Annie Sodor Mail,. The PartridgeSuper Wings - Deluxe Transforming Vehicle Series 2 Jett Plane and Bot V...,.FUNKO POP MARVEL AVENGERS 2 - HAWKEYE 70 4781 VINYL FIGURE,.Handpuppe Kasperlepuppe Hexe Lilli 33cm 12575 Kersa Classic mit Stoffkopf,
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, Science project pieces for battery operated cars. car parts, school supplies, although there is no uniform application of the doctrine.SECOND SHOT TOY SOLDIERS HOLLOW CAST LEAD B40 ETHIOPIAN OFFICER MINT,Partridge, but also over the analysis to be applied.ROBOT POPY BRIAN CONDOR GRANDE MAZINGA VINTAGE,.Anki Cozmo Robot By - A Fun, Interactive Toy Robot, Perfect For Kids, White Kids,PartridgeCOCA COLA YO-YO FROM 1980's with LONDON COKE BOTTLE AND SMALL CAN VERY RARE,.The most lottery Pokemon HEY Pikachu and Friends F Award dessert bowl all four,.
See Waseca Mutual Ins Co v Noska, Nightmare Before Christmas Party Decorations Lot Plates Napkins Tablecloth, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Mint Red Box Redbox Electronic 23450 Toy Airport Playset Mat Terminal,; Professional Punch and Judy puppet CLOWN made by Teddy Corden 1980s circus,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Beyblade Metal Masters Cyclone Herculeo BB-94, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, GO NAGAI ROBOT COLLECTION 2018 NEW EDITION 6 VENUS ALFA THE GREAT MAZINGA Z, (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 PartridgeVintage 1940s Metal Masters Tin Toy redary Dial Telephone With Box Red,.
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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Vintage Mr Drake Tin Plate Battery Toy,Vintage Japan Yano Man Battery Operated Walking Monkey w Suitcases Works VG,. In Noska,Play by Play Squirtle Pokemon plush 17 vintage toy doll go 90s fair prize squad,.VINTAGE BIG TIN TOY BATTERY AIRPLANE ALITALIA JOUSTRA MADE IN FRANCE 70s 55 CM,.[TAYO] The Little Bus Friend 6 pcs mini Car Toy - Pat Nuri Frank Alice Toto i_g,.Grandstand Batman-Fight LCD Handheld game 1980s Working Boxed., necessary to cause the damage. Id., p 920.Vintage Yonezawa Battery Operated Continental Flyer Train Set in Original Box,.Marionette Asiate Marionette Holz angekleidet alt, ca. 70 cm gebraucht benutzt,.JODY FINE HANDMADE GLASS MARBLE .918 -FALL TWISTED RIBBON DOUBLE-RED,LIME,YELLOW,.Red Riding Hood Finger Puppet Set,. 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,Charming Set of 15 Whiskey & More Glass Marbles,.Job Lot 200 Dew Pot Cream Eyeshadows Assorted Colours,.TOY BIZ MARVEL COMICS ELECTRONIC VENOM ACTION FIGURE SPIDERMAN - STILL WORKS -a,.Model_kits Aoshima 06962 1 32 scale movie mecha series Batman Batmobile SB,.Minion ball chain mascot premium Kingubobu,.COMPLETE WORKING 1961 REMCO WHIRLYBIRD MOTORIZED HELICOPTER - BOX & INSERTS,.NEW Musical Electronic Saxophone , Made By Play Visions,. The parties Vintage Wooden Cased FIT-BITS Construction Set,.
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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, Handmade SAMMY Sam Hogue 2 1 2 multi color Swirl Marble Signed,; Modern toys Japan Battery operated Tug Boat Neptune mib works great, (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, LITTLEST PET SHOP x 3 Sparkle Glitter Sheep Dog orange Owl,; 437 N.E.2d 663 (1982)Vintage Louis Marx Co. Battery Operated Reversible Diesel Tractor,.Paw Patrol Real Talking Rubble Plush,.Pokemon Center Original Pitaresu and Eevee,. The Illinois Court of Appeals, relying on Partridge, supra,Vtech BOB THE BUILDER Learning Laptop Computer Nice Condition Tested Works,
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.Lot Of 11 Vintage Metal And Plastic Noise Makers For Party's, Holiday, Birthday,.DARK AMBER BLIZZARD MICA HANDMADE MARBLE 27 32 ,.Folkmanis Kreisch-Eule marionnette d'oiseaux, 2961,.Nella the Princess Knight Large Transforming Musical Doll. Fast & Free Post,.Wooden Star Wars sitting puppets Darth Vader and Storm Trooper doll Handmade,. The ScottsdaleDustin Engine BRIO ELC THOMAS AND FRIENDS Wooden Train Set Toys,Folkmanis 3067 Giant Clam Puppet,.Comic Character Stamp Printing Set - 1930's,. Id.,Doc McStuffins Toy Hospital Doc Doll 8.5 Inches Includes NEW Tools,.
The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Take Along n play Thomas Tank Engine & Friends Train - SHOOTING STAR GORDON,; Original Junior 1 10 Scale Battery Powered Lotus 49 F1 made in Japan,Alps Japan Accordion Playing Bunny with Baby Bunny Playing Cymbals Easter Rabbit,.OS14 Unusual solid lead Boer War British soldier with flag. Figure 77mm high,. The ScottsdaleDragon Ball Z Series 7 Movie Collection SS Vegeta Action Figure,Partridge but its application as well:
In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, NICE EARLY 1910's 20's GERMAN TIN LITHO RACE CAR with DRIVER PENNY TOY,; 109 Cal.Rptr. 811; My Little Pony Pinkie Pie Row & Ride Swan Boat Set,. 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, Jumbo Nemo 28 Plush Stuffed Clown Fish Finding Nemo Jumbo Stuffed Animal,; 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, Motorbike model (old car) 1 24 scale plastic 10 units Rare Vintage toy Retro,; 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 and Friends Take-n-Play Daring Dragon Drop. Brand New,; 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, VINTAGE TIN LITHO SAND PAIL 1960'S OHIO ART FISH SHELLS LOBSTER CLAM, (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 hand puppet Basset Hound Dog 2919, (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, Fisher-Price Thomas & Friends Take-n-Play Portable Railway Water Works Rescue,; 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 PartridgeVINTAGE TIN PLATE TOY TEA SET,." State Farm Fire Casualty Co v Huyghe, STEVEN MASLACH HANDMADE GLASS MARBLE .902 -LAVENDER RAINBOW CORKSCREW-ROYAL PRPL,; 375 N.W.2d 442 (1985). Implicitly, this Court in Huyghe192 Vintage G1 My Little Pony HTF Mail Offer Peachy Hearts Pink STUNNING ,State Farm Fire Casualty Co v Camara, supra.Axis of Evil lll Finger Puppet Set - Rumsfeld President Bush Cheney Condoleezza,independently of use or ownership of a vehicle.
In Huyghe,50 STUNNING COCA COLA SODA 1 INCH LOGO MARBLES,MOTORIZED A.C.GILBERT ERECTOR SET FERRIS WHEEL HOBBY SHOP DISPLAY ,.12alte Handpuppen 4 Fingerpuppen Holz,Gummi,Porzellan Keramik Steinzeug Bastler,.ROBOT PEGAS TEKKAMAN DX NAKAJIMA TEKKAMEN TATSUNOKO goldRAKE BULLMARK METAL JEEG,. The HuygheLiving Puppets Handpuppe Wauwi W746,. 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 HuygheWbba. limited Beyblade burst B-00 Archer Hercules .10C.A ' Japan,.
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Next, it is important to clarify that PartridgeKilgore Fastest Draw Cow Boy Toy 1950's Battery Operated Boxed Scarce,.Takara action hero series Ryukendo Madang Magna Wolf RA 07,.
For example, in Partridge,Peppa Pig TY Zoe Zebra 7 Plush Stuffed Soft Toy,. In Jorgensen, supra,Pokemon Center 13inches Spheal Stuffed Plush Figures Toys Pillow,. Therefore, the non-auto-related negligence had been established.Thomas and Friends My First Thomas Splash Bath Toy,. The Illinois court in U S Fidelity Guarantee, supra,Yoyo Zeekio Aftermath Yo-Yo - Red,. That is the same situation in this case.Vintage Simpsons Bart Simpson 1990 authentic Matt Groening muscle shirt 80s90s,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.GRANDE MAZINGA POPY GA-05 ANNI 70 VINTAGE TOYS GREAT MAZINGER,. Detroit Edison, supra.
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