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 Lotto Figurines-Biker Mice-1993-1995-galoob-14 Cm-Articulées-Space Vinnie -mfd,.Little Genie Weekend In Bed Game Kit,.NEW Daibadi Production Polynian Emil Action Figure from Japan F S,.KAPITÄN TSUBASA ALTAYA T036 FRANKREICH FIGÜRCHEN BRASILIEN ROBERTO SEDINHO,.
The essential facts are not in dispute.A Nightmare on Elm Street - Freddy Krueger 5-Star Vinyl Figure - FunKo Free Ship,.Last Exile - 1 72 Last Exile Tatjanas Vanship & Fam Vespa Modell Kit Hasegawa,. At approximately midnight, Clarke drove home in his automobile.RE ZERO FIGURA RAM 23 CM - ANIME FIGURE WEDDING DRESS RHAM VER. RELIFE IN BOX,.FATE STAY NIGHT TOHSAKA RIN 23 CM -ANIME FIGURE UNLIMITED BLADE WORKS BOX,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.S.H. Figuarts G Gundam east Undefeated 155mm Figure Japan Import Toy Hobby,.HCM Pro 20-00 NRX-044 ASSHIMAR 1 200 Action Figure Z Gundam NEW from Japan,.Bastard High End Figure 1 DS Majin Version - ArtFX - Kotobukiya, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.
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Nendgoldid Haikyu Hinata ShoYo Karasuno high school Haikyu part jersey Ver fig,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.TANTEI OPERA MILKY HOLMES - Cordelia Glauca Nendgoldid Good Smile Company,.Nendgoldid Star Wars Episode IV A New Hope Princess Leia Good Smile Japan new,.Funko POP 6350 ANIMATION Sailor Moon - Sailor Moon With Luna Standard,Medicos Jojo's Bizarre Adventure Part 4 Okuyasu Nijimura,.NEW figFIX-004 NagatoKantaiCollection KanColle Half-Damage ver. MaxFactoryFigure,.
Harley Quinn Nurse Edition Batman Animated Premier Collection Statue,.S.H. Figuarts Skaura Kinomoto Card Captor Sakura + Pre-Order Item Fabric Mat NEW,.TRIGUN FIGURE GASHAPON BUST PART.1 SET OF 6(CIRCLE EYE CAT) KAIYODO G42-005,.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.
ZEONOGRAPHY MS-11 ACT ZAKU MS-06E-3 ZAKU FLIPPER JP,.
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A motion for summary disposition pursuant to MCR 2.One Piece Excellent Model Neo-2 Portgas D Ace PVC Figure 1 8 Scale by Megahouse,.Mink nendgoldid n°697 (DRAMAtical Murder) - Good Smile Company,.FATE APOCRYPHA TYPE MOON - FRANKENSTEIN BERSERKER FIGURA DE COLECCION PVC 18CM,." Hazel Park v Potter, 169 Mich. App. 714, 718; New Good Smile Company Nendgoldid EZ The Legend of Zelda The Wind Waker Version,.Rare Retro Yugioh Miniature Figures Mattel bluees Eyes, Yugi & Dark Magician S1,. Pontiac School Dist v Bloomfield Twp, Good Smile Puella Magi Madoka Magica Sakura Casual Figma Action Figure,; DATE TO LIVE II FIGURE KURUMI TOKISAKI 20 CM ANIME FIGURE ESC. 1 7 BOX 7.8 ,; 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. . . .
Kotobukiya Girls Und Panzer Miho Nishizumi Cu-Poche Action Figure,.Funko Pop - MARVEL LEGENDS Mr Fantastic,Good Smile Character Vocal Series01 Hatsune Miku Figma 2.0 ABS&PVC Action Figure,. Pontiac School Dist, supra.Votre Mensonge Dans avril Kaori Miyazono Effectuer Robe Peint PVC Figure 8'',.
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A motion for summary disposition under MCR 2.K-ON DX Figure - Performing Competition ‾ All 2 kinds set,.Shfiguarts Fire Emblem Tiger Bunny Soul Web Store Limited,.Megahouse Puzzle & Dragons Collection DX 02 Graviton Earth Dragon Figure Kaiju,. Fulton v Pontiac General Hosp, Robot Spirits [SIDE MS] New Gundam,; FigFIX fleet collection - ship this -. island in style implosion ver non-scale,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Nendgoldid 697 DRAMAtical Murder MINK Action Figure orange red from Japan,; 207 N.W.2d 316 (1973).
Medicom VCD-214 LINUS from Snoopy (Vintage Ver.) Vinyl Figure,. 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.]
Pokemon Nendgoldid Giovanni & Mewtwo Good Smile Company,
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.
Ghost in the Shell SEGA Extra Figure vol.2 - Motoko Aramaki (Red Hair),. First, the policy's exclusionary language is not ambiguous.The Nightmare Before Christmas - Sally with Basket Pop Vinyl - FunKo Free Shipp,.Puella Magi Madoka Magica Sayaka Miki Maiko,. See Allstate Ins Co v Freeman, supra, pp 665-667.Roulette Drinking Game with LED Light, Party Game with Shot Glasses,. We disagree with the trial court's second and third statements.Skytube Soft Material Fukiishi Hana Mizuhara Erika Bunny doll Anime Figure Sexy,.
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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.2003 jakks DragonBall Z DBZ Super Saiyan TRUNKS action figure 9 loose,.
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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Nendgoldid Yuri on Ice Yuri Plisetsky Good Smile Company Japan NEW,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Kb04c Good Smile Hatsune Miku Nendgoldid Action Figure Sailor Ver. Uniform JAPAN,.HATSUNE MIKU BIKINI 23 CM ANIME FIGURE VER. PROJECT DIVA-F 9 ,.Kamen Masked Rider Blank Knight Max Factory Figma Figure Japn Import Toy Doll,.Good Smile Company Nendgoldid 408 Kill La Kill Mako Mankanshoku Action Figure,.Obitsu Body Boy With Magnet Natural Soft Vinyl Moveable Figure,.
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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, Good Smile Company Nendgoldid 861 Re ZERO Beatrice Figure NEW from Japan, although there is no uniform application of the doctrine.Statua Drago Rhaegal Targaryen Games of Thrones Noble Collection,Partridge, but also over the analysis to be applied.COSPA D.C. II Nemu Asakura 1 6 Scale Head Bust,.Figma AMY GARGANTIA ON THE VERDUROUS PLANET figure NEW,PartridgeBrand New Nendgoldid Mega Man No.556,.Nendgoldid Fleet This ship - ship this - Ruisu club nonscale ABS & PVC painted mo,.
See Waseca Mutual Ins Co v Noska, DC Collectibles The New Batman Adventures Batgirl Action Figure - DC Collectibl, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Figma.BP SP-003 Code Geass Lelouch of the Rebellion Suzaku Kururugi Figure NEW,; Hot 21CM Fate Grand Order Ruler Anime Action Figure Girl statue In PVC doll toy,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Figma 058 K-ON Mio Akiyama School Uniform ver. Figure Max Factory from Japan, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, T S MAZINGER Z MAZINGER & AFRODITA BLK D - (M), (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 PartridgeChara Sleeve Collection Mat Series New Game Takimoto Hihumi (No.MT266) Movic,.
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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, ONE PIECE FIGURA MONKEY- D. LUFFY 19 CM-ANIME FIGURE SCULTURES BIG 7,3 IN BOX,Re Zero Starting Life in Another World Emilia Figure Kotobukiya NEW from Japan,. In Noska,Japan Figure Magical Girl Madoka Magica White Version One Piece Madoka Homura,.Virtualon Compan A Cyber Battlefield 1 12 Garage Kit Wonder Festival 2017,.Funko Pop Genos One Punch Man Mint Vaulted,.Figure kb04c THE IDOLMASTER CINDERELLA GIRLS Jyogasaki mika MA, necessary to cause the damage. Id., p 920.Monopoly Drinking Game Drinkopoly Board Games Party Drinking Shots For Adults,.DRAGON BALL - Desktop Real McCoy Vol. 2.5 Son Goku Pvc Figure Megahouse,.Zoids B017 Laser Storm JP,.Legacy OF Revoltech Lupin about 135mm ABS & PVC painted action figure LR-025,. Id., p 923.
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In Jorgensen v Auto-Owners Ins Co, Figma fake stories Araragi wooden merciless (nonscale ABS & PVC painted movable,SEGA Jurassic World Kingdom of Flames Premium Figure T-Rex bluee set Free-ship,.Shielder Mash Kyrielight FateGrand Order Max Factory action figure Figma No.321,.MIKU HATSUNE feat. SEGA VOCALOID Project Nendgoldid Co-de Raspberryism,.DRAGON BALL Grandista Resolución de los soldados Son Goku DX Pvc Figura,.Drinkopoly – The King of Drinking Games – Combined Board Table Party Games for A,.Shuriken Sentai Ninningja Ninin Action Series 01 Aka Ninker,.orange red Haikyu Kotaru Bokuto Nendgoldid Action Figure Japan,. The parties Revoltech Evangelion Evolution - Evangelion Final Model Kayodo,.
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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, Nendgoldid The Legend of Zelda Majora's Mask 3D Link Action Figure Good Smile,; Five Nights At Freddy's - Freddy & Foxy Pop Vinyl Figure - FunKo Free Shipping , (emphasis supplied by Waseca Mutual court). [ Id., p 401.]
1985 ROBOTECH Breetai Enemy Matchbox ACTION FIGURE TOY NEW,.
Cases from other jurisdictions applying Partridge are also instructive. In U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, SAYAKA MIKI . MAIKO VERS. NENDgoldID - PUELLA MAGI MADOKA - GOOD SMILE COMPANY,; 437 N.E.2d 663 (1982)AIRFIX 1 32 Scale British Eighth Army 10 Figures Hand Painted Quality,.Nendgoldid More Halloween Set Female Ver. Good Smile Company ,.Statuette STRIKE WITCHES ERICA HARTMANN (H=16cm) SEGA EX Figure Vol.2 NEW,. The Illinois Court of Appeals, relying on Partridge, supra,Dragonball Z 2001 Super Saiyan Goku Cell Saga Irwin Toys DBZ,
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.5pcs dragon ball super dragon sun wukong hand-built car model,.Kb04c Good Smile YuruYuri Akari Akaza Nendgoldid Action Figure,.Daibadi Production Polynian Emil Action Figure from Japan,.Touka Kirishima Tokyo Ghoul Generación de oscuro Figura 26 cm Toys Anime,.NEW Cu-poche Puella Magi Madoka Magica Sayaka Miki Figure KOTOBUKIYA,. The Scottsdale(6) First-time limited edition version with Nendgoldid Petit (SE Comics Premium),SPRINTZ - PARTY SHOT ELECTRONIC TIMED DRINKING GAME - MINT AND SEALED,.Dragon Ball Z Capsule Neo Strongest Soldier Gohan and Piccolo MegaHouse B99,. Id.,KILL LA KILL - Satsuki Kiryuin Nendgoldid Action Figure Good Smile Company,.
The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Nendgoldid Fate stay night Saber & Rin Tohsaka Cheering Ver. (Cheerful JAPAN Li,; Nendgoldid Touken Ranbu - ONLINE - Taiko Bell Sasamune Non Scale ABS & PVC,DEKA - Takeya Revoltech N.012 Alphas Kaiyodo,.New Statue Legend JoJo's Bizarre Adventure Part IV Highway Star Second Special,. The ScottsdaleNEW REVOLTECH MUV-LUV ALTERNATIVE NO.011 SU-37UB TERMINATOR SCARLET TWINS FIGURE,Partridge but its application as well:
In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Nendgoldid 036 Wagamama Capriccio Melissa Seraphy Figure NEW from Japan,; 109 Cal.Rptr. 811; KAIYODO Revoltech Danbo Mini Calbee Kappaebisen Ver. 3in. JAPAN,. 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, Max Factory Knights of Sidonia Series 18 Gardes (Morito) Figma Action F... Japan,; 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, Bobbing Head One Piece Series Dracule Mihawk (PVC Painted),; 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, Bisounours - Ti'Coquin - 1980 NEUF Care Bears - Vintage No Popy Popples Dgoldthée,; 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, Fist Of The North Star Kenshiro Figurine Brand New And Boxed, (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, Figurine DBGT Dragon Ball Z DBZ GT Sangoku super saiyan 3 Dragonball 14 cm, (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, DRAGON BALL Z - SHENRON FIGURE CHROME + 7 BOLAS DE DRAGON + DISPLAY,; 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 PartridgeSAKURASOU NO PET NA KANOJO - FIGURA MASHIRO SHIINA MASHIRO FIGURE (REPLICA),." State Farm Fire Casualty Co v Huyghe, Nendgoldid My Hero Academia Midoritani Dehisa Heroes Edition non-scale ABS & PVC,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuyghePLAMAX MF-22 minimum factory Girls & Panzer theatrical version Darjeeling,State Farm Fire Casualty Co v Camara, supra.Snow White and the Seven Dwarfs - Happy Pop Vinyl - FunKo Free Shipping ,independently of use or ownership of a vehicle.
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