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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 Good Smile Company Nendgoldid 832 Himouto Umaru-chan R Nana Ebina Figure,.Fast Times At Ridgemont - Brad Hamilton Vinyl Idolz - FunKo Free Shipping ,.The Melancholy of Haruhi Suzumiya Extra PVC Figure EX Sega,.One Piece SCultures BIG modeling king summit decisive battle â ¥ vol.5 smoker,.

The essential facts are not in dispute.NEW figma 018 The Melancholy of Haruhi Suzumiya Tsuruya-san School Uniform Ver.,.Fullani Princess Figure Kotobukiya 1 8 Japan Anime,. At approximately midnight, Clarke drove home in his automobile.Nendgoldid Bubuki Blanki Asakuki golden + Right Hand Set Non-Scale ABS & PVC Pa,.Star Wars Power Of The Jedi de base figure Mon Calamari (japon importation),. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Legacy OF Revoltech Queen's Blade Ancient princess Menace PVC ABS,.Mink nendgoldid n°697 (DRAMAtical Murder) - Good Smile Company,.Tease The Liberating Game for Couples and Groups, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Nendgoldid P-Body Portal 2 USA Seller,.Haikyuu Hinata Shouyou Vol. 2 DXF Figurine,.Saber (Fate stay night) fate zero figura de accion espada 22 cm sexy doll,.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.Figma Osomatsu Mr. Toshi Matsuno pine Figure Japan Import Toy Hobby,.ANIME AH MY GODDESS URD 6.5 IN FIGURE,.Good Smile Good Smile Hatsune Miku Nendgoldid Figure 4582191963372,." Hazel Park v Potter, 169 Mich. App. 714, 718; Funko POP Lord Rings King Aragorn 534 Exclusive Nuevo Original Envio España,.The most lots Sword Art Online ‾ SAO WILL RETURN ‾ C Award Yuki color ver.,. Pontiac School Dist v Bloomfield Twp, Jojo's Bizarre Adventure Stardust Crusaders The World Collectable Dio SP color,; Valkyria Chronicles 3 Nendgoldid Riera Japan import,; 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.NEXEDGE STYLE NX-0039 EVA UNIT EVA UNIT 00' PredO TYPE TV Ver. Figure From japan,.Scott Pilgrim - Scott & Ramona Vynl. - FunKo Free Shipping ,.Figma Kamen Rider Blank Night Dragon Knight Figure King No. 156 Limited Edition,. Fulton v Pontiac General Hosp, DragonBall Z Super Master Stars Piece Vegeta 30cm 12 PVC Figure LOOSE B1,; Nendgoldid Osomatsu Matsuno Todomatsu Japan import,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Dragon Ball Z The Dragon Shenron Mountain Stand 7 Crystal Balls Collectible Toy,; 207 N.W.2d 316 (1973).

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SEGA SUPER PREMIUM SPM HATSUNE MIKU CHRISTMAS PROJECT DIVA PVC FIGURE NEW,. 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.

golden Lotus Cheongsam Plum golden Vase Bottle PVC Action Figure Collectible,. First, the policy's exclusionary language is not ambiguous.Dragon Ball Z Super Vegeta Bulma Boda Trunks Figura Figure Anime 30 cm In Box,.Good Smile Cobra The Space Pirate Crystal Bowie Figma Action Figure Japan new.,. See Allstate Ins Co v Freeman, supra, pp 665-667.Anime NO GAME NO LIFE Flueqel Jibril Mini PVC Action Figure Model,. We disagree with the trial court's second and third statements.Zoids Saga Ii Gb Game Boy Advance Purchase Bonus Bloody Death Sauer Art Statue,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Dragon Ball Z Final Form Frieza Pop Vinyl Figure Funko CHROME Rare,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Revoltech Evangelion Evolution - Evangelion Final Model Kayodo,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Pokemon Eevee ( Plush ),.Peace Pieces Nagi Akizuki Figure Good Smile Company 1 8,.Fujin Raijin Figure Miniature Cube 005 MiniQ PVC Kaiyodo From Japan New,.One Piece Glitter & Glamours Shiny Venus Figure Nefeltari Vivi 14 cm,.Nendgoldid Kemono Friends Fennec Good Smile Company Japan NEW,.

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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, 8pcs lot 15cm 6inches Anime Sailor Moon Mercury Mars Venus PVC Action Figure, although there is no uniform application of the doctrine.Dts Uitimate Edition Limited State Full Special Code Owed,Partridge, but also over the analysis to be applied.Figma Bio Booster Armor Guyver Guyver III Figure Max Factory JAPAN OFFICIAL,.Angel Breeze Hatsune Miku ( Sega ),PartridgeGood Smile Company Nendgoldid 639 GAME Aoba Suzukaze Figure Japan new .,.Anime Figuarts Zero One Piece Jinbe Jinbei New World Ver. PVC Figure New In Box,.

See Waseca Mutual Ins Co v Noska, Nendgoldid Osomatsu-san MATSUNO TODOMATSU Action Figure Benefits, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Good Smile Company Himouto Umaru-Chan R Nana Ebina Nendgoldid Action Figure,; TINKER BELL FESTIVAL FIGURE ATYPE 14 CM-ANIME FIGURE SEXY VOL. 2 NO BOX,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Batman - Batman XL 6 inch Dorbz - FunKo Free Shipping , (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, YURI PLISETSKY YURIO NENDgoldID - YURI ON ICE - GOOD SMILE COMPANY, (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 Partridge0003 Gundam FIX Figuration RX-78GP01 Zephyranthes action figure,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Di molto bene tatue Legend JoJos Bizarre Mikitaka Hazekura Nu Mikitakazo Nshi,New In Box Sega Prize Persona 4 Dancing All Night PM Figure Kujikawa Rise,. In Noska,Nendgoldid 648 Osomatsu-san JYUSHIMATSU MATSUNO Action Figure orange red NEW,.YAMATO YATTAMAN CULT COLLECTION 10 ROBBIE ROBBIE MINI FIGURE,.New Smile Pretty Cure Narikiri Character REIT Kids Pretty Princess form,.Figma archetype next he flesh color ver. Max Factory Japan import, necessary to cause the damage. Id., p 920.Nendgoldid Persona 5 Sakura Futaba non-scale ABS & PVC painted Japan,.Figma EX-004 K-ON Ui Hirasawa School Uniform ver. Figure,.Kitchenware Cu-poche 37 GIRL und PANZER DARJEELING Figure Kotobukiya MA,.Melancholy of Haruhi Suzumiya Good Smile Company Nendgoldid Figure Japan Doll Toy,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, DRAGON BALL SUPER - Goku Super Saiyan, Goku SSGSS figurines Dragon Ball Z anime,NARUTO GEM NEW Figure Megahouse Naruto Shippuden Namikaze Minato ANIME Replica,.Figma Magical Girl Lyrical Nanoha The MOVIE 2nd A's Fate Testarossa Lightning,.Organic Solty Rei 1 8 pink Anderson PVC Figure,.Super Sonico FuRyu Seikatsu Micchaku Special Figure - Sonico (Chatting Time ver),.Swing Lodi (Y) No.3552 (japan import),.Dragonball Z GT Figures-Piccolo-Series 1-Snap On Cape w Hat-Irwin-5 ,.Dragon Ball Heroes Android 17 18 5 Cards,. The parties GOOD SMILE COMPANY NENDgoldID ARALE,.

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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, (6) First-time limited edition version with Nendgoldid Petit (SE Comics Premium),; Nendgoldid Kantai Collection -KanColle- Katori Figure Japan Import Toy Hobby, (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, Masters of the Universe Vintage Collection Action Figure He-Man 14 cm,; 437 N.E.2d 663 (1982)Figma Character Vocal Series 01 Hatsune Miku Hatsune Miku 2.0 (non-scale ABS &,.Anime April is your lie Gongyuanxun School Uniform Suit PVC Figure Model,.DC Collectibles Batman Arkham Knight Man-Bat Action Figure Free Shipping ,. The Illinois Court of Appeals, relying on Partridge, supra,Limited ROBOT soul SIDE MS Gundam 0 Free shipping from JAPAN,

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.TOKIO GHOUL - FIGURA KEN KANEKI AWAKENED VERSION KANEKI KEN FIGURE 16cm,.Naruto Shippuuden Hatake Kakashi Anbu ver. Dark PVC Figura cosplay con la caja,.Taito Infinite Stratos IS Houki Shinonono game prize wedding figure from Japan,.Dragón ball Z Goku Super Saiyan figura de acción con luz led,.ODIN SPHERA FIGURA MERCEDES 23 CM ANIME FIGURE ESC. 1 8 IN BOX,. The ScottsdaleHokuto no Ken DX Figure - SEGA - Falco,New Cu-poche Puella Magi Madoka Magica Kyoko Sakura KOTOBUKIYA NEW from Japan,.Good Smile Kantai Collection Kancolle Musashi Nendgoldid Action Figure Events a,. Id.,REINE BLADE - Melona Nendgoldid Figurine Freeing,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Jumbo Nesoberi Plush Tosaka Rin Fate Series Sega,; Free Shipping from Japan Authentic Figma Nagisa Momoe Puella Magi Madoka Magica,Lechery ART WORKS Action Figures 1 5 Pre-Paint Scale Sexy Girl Bikini ver Toys,.Action Figure Bio Armor JUSHIN LIGER RYGER Takatoku Go Nagai Dynamic Sofubi Jap,. The ScottsdaleGPF-17 1 35 Girls und Panzer theater ver Keizoku high school Figure Kit GPF-17,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Nendgoldid God of War Kratos Good Smile Company Japan NEW ,; 109 Cal.Rptr. 811; NEW figma 186 Lyrical Nanoha The MOVIE 2nd A's Fate Testarossa Blaze Form ver.,. 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, New figma 222 Akagi Kantai Collection Japan Import,; 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, Scissors Jaguar Kamen Rider V3 1 8 Real Action Heroes RAH220-18,; 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, Free Ship Authentic S.H. Figuarts Chewbacca Solo A Star Wars Story figure Japan,; 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, Robot Spirits Damashii Mobile Suit Gundam Garazzo Hiling Care, (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, Figure Good Smile Dog Days Leonmitchelli Galette Rois Nendgoldid MA, (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, Kantai Collection KanColle SPM Figure Battleship Nagato 23cm from Japan F S NEW,; 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 PartridgeBatman v Superman Dawn of Justice - Batmobile Metals - Jada Toys Free Shipping ,." State Farm Fire Casualty Co v Huyghe, MegaHouse Naruto Shippuuden - Kakashi and Naruto Chess Piece Collection,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheMONOGATARI SEGA FIGURE JAMMA 20 CM ANIME MANGA VER.1 PRIZE C,State Farm Fire Casualty Co v Camara, supra.M.D.ONE GHOST IN THE SHELL STAND ALONE COMPLEX MOTOKO BATOU TOGUSA SET G59-048,independently of use or ownership of a vehicle.

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For example, in Partridge,Dragon Ball Z Super Master Stars Piece Vegeta PVC Action Figure Model Toy,. In Jorgensen, supra,SLAM DUNK FIGURE KAEDE RUKAWA 25 CM SLEEVE BASKET FIGURE SHOKOKU N.14 BOX 10 ,. Therefore, the non-auto-related negligence had been established.Cu-poche Puella Magi Madoka Magica Homura Akemi Uniform Ver. Figure KOTOBUKIYA,. The Illinois court in U S Fidelity Guarantee, supra,Botan 7 Action Figure Yu Yu Hakusho Series 1 Ghost Files Vinyl Doll 2002 Anime,. That is the same situation in this case.Capcom Vampire Savior Lot of 3 Variants Jedah Morrigan Bulleta First Series MIP,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Brand NEW - Good Smile Company MEIKO NENDgoldID SERIES,. Detroit Edison, supra.

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