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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 MY HERO ACCADEMIA - DXF FIGURE SP - Izuku Midoriya,.Lupine The 3rd DX Figure Mine Fujiko Collection One Piece Pink Ver,.New Dragon Ball MASTER STARS PIECE THE SUPER SAIYAN TRUNKS F S,.Dragon Ball Z Super Red Power Viewer Toy Brand New,.

The essential facts are not in dispute.Evangelion 3.0 SEGA 2014 HG Figure EVA-13 vs EVA Prod. Model-02 - EVA-02,.Good Smile Company - Puella Magi Madoka Magica statuette PVC 1 8 Sayaka Miki,. At approximately midnight, Clarke drove home in his automobile.To Heart 2 Another Days Yuzuhara Konomi Swimsuit Version 1 8,.Dragon BALL FIGURA Dragone SHENRON FIGURE SFERA DA Dragone, 7 palle di Dragone,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Authentic Nendgoldid DRAMAtical Murder Aoba and Ren Good Smile from Japan,.Madoka Magica Figure Homura Akemi Haregi Ver. kimono Nendgoldid 722 Puella Magi,.STATUETTE TSUKIMONOGATARI SENGOKU NADEKO (Figurine de 20cm) SEGA PREMIUM NEW, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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World Collectable Figure WCF Ironman Hulkbuster Avengers G32-021,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Action Figure Rise Standard Perfect Cell Dragon Ball Z Building Kit Display Toys,.Dragon Ball GT Super Master Stars Piece Son Goku Super Saiyan 4 Figure Model Toy,.Guardians of the Galaxy Marvel Legends Series Angela Action Figure HASBRO,NARUTO SHIPPUDEN - Naruto Uzumaki Nendgoldid Action Figure Good Smile,.TamashII Sd Gundam - Command Gundam Sdx Chogokin Action Figure,.

Model_kits HCM Pro 14-00 MSA-003 NEMO 1 200 Action Figure Z Gundam NEW SB,.Dragonball Z WCF - BATTLE OF SAIYANS VOL.3 - 2 FIGURES - NEW AUTHENTIC,.KANGOKU GAKUEN CÁRCEL SCHOOL Meiko Shiraki sizerines Stopper Ver. Hot Pvc,.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.Nendgoldid Sakura Quest Yoshino Koharu,.1 72 20mm painted Napoleonic Dutch Belgian Artillery 1815,.ROBOT SPIRITS BRAVE COMMANDER TEST R090,." Hazel Park v Potter, 169 Mich. App. 714, 718; Jeux érediques - Barre chromée de striptease Pole Dance,.Revoltech Takeya 004EX ZOUCHOUTEN Wooden taste PVC KAIYOUDO Action Figure JAPAN,. Pontiac School Dist v Bloomfield Twp, Jojo Bizarre Adventure golden Wind Mafiarte 6 Guido Mista Figure Normal color,; The Voting Game - The Adult Party Game About Your Friends,; 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.Ten Kai Night Basic Figure Gaia Vuaron Toy Japan Hobby Japanese Kids Gift,.Figma 092 Bakemonogatari Hitagi Senjyogahara Figure Max Factory from Japan,.Kaiyodo action figure Trigun Gazelle the Peace Maker 8 ,. Fulton v Pontiac General Hosp, Statue LUPIN III 26cm MASTER STARS PIECE IV Cigarette Part 5 Originelle,; Dragon Ball Z , SON GOKOU ,Super Sayan 3,dbz hscf-4 13, action figure Highspec f,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Freeing The Table Museum figma SP-076b Angel Single. Japan Statue,; 207 N.W.2d 316 (1973).

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Decorated Unicorn Mare - Schleich Free Shipping ,. 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.]

FIGURINE BEN 10 ULTIMATE Arrchno singe,

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.

Lot of 10 Dragon Ball Z GT Super Irwin Toy Jakks Action Figures Frieza SS3 RARE ,. First, the policy's exclusionary language is not ambiguous.S.H.Figuarts - Kamen Rider Kuuga Rising Mighty Form,.PLA-WRESTLER - Sanshiro Sakurahime 1 1 Statue Yamato,. See Allstate Ins Co v Freeman, supra, pp 665-667.ONE PIECE - FIGURA TRAFALGAR LAW CORRIDA COLOSSEUM DRESSpink LAW FIGURE (A),. We disagree with the trial court's second and third statements.Figure-rise Standard Naruto Uzumaki NARUTO Shippuden Model Kit,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Hasegawa SP362 Volkswagen Type 2 Delivery Van Egg Girls Summer Paint 1 24 scale,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Hotori Arashiyama Max Factory Action Figure Figma No.94,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Dragon Ball Z Saga Android Irwin toy´s VEGETA Figura de Acción,.Shipping Cost 120 Yen World Masterpiece Theater Anne Of The Redhead Figure,.RARE GATCHAMAN Joe Pose figure from Japan,.Marry Figma EX-047 Bride EX-046 Bridegroom Figure Wedding PVC Action Collectible,.Good Smile Petit Fate stay night Saber Figure alone (Excalibur) and Nendgoldid,.

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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, Kotobukiya SW94 ARTFX + STAR WARS At-At Driver 1 10 Scale, although there is no uniform application of the doctrine. Good Smile Company Nendgoldid Puella Magi Madoka Magica the Movie Ky From japan ,Partridge, but also over the analysis to be applied.FATE ZERO - Cu-Poche Saber Action Figure Kotobukiya,.Figurine Figure Evangelion Mermaid Rei & Asuka ( Used No Box ),PartridgeGO NAGAI ROBOT COLLECTION 66 DRILL SPACER UFO ROBOT goldRAKE FIGURE,.One Piece Qposket over Girls Season Special over figures Shirahoshi Hime,.

See Waseca Mutual Ins Co v Noska, Nendgoldid also A tatami brown non-scale tatami mat, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, KINNIKUMAN JESSIE MAYBIA Romando PVC Action Figure JAPAN ANIME M.U.S.C.L.E.,; Fallout 76 - T-51 Power Amor Pop Vinyl - FunKo Free Shipping ,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Max Factory figma 111 Toaru Majutsu no Index II Touma Kamijou Figure, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, TENGA Robot ROBO Mega TENGA Beam Set Limited Action Figure NEW Japan, (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.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Dragon Ball Heroes Android 17 18 5 Cards,Nendgoldid Crochet Face Part Case Rabbit,. In Noska,Nendgoldid outing porch sleeping bag swords dancing -ONLINE- Phase one vibration,.Figma The Table Museum Winged Victory of Samothrace FREEing Japan NEW ,.NENDgoldID 553 LINK LEGEND OF ZELDA MAJORA'S MASK 3D VERS. BY GOODSMILE COMPANY,.USED SAS JoJo's Bizarre Adventure Part.6 Narciso Anasui Figure Medicos, necessary to cause the damage. Id., p 920.Super image move JoJo's Bizarre Adventure Part 3 5. Hierophant Green New,.Orufenzu of ROBOT soul Mobile Suit Gundam Blood and iron [SIDE MS] Gundam K,.Rank B Moecolet Plus No. 34 Hannah Justina Marseille Strike Witches 2 1 8,.Action Figure Evangelion 2.0 You Can (Not) Advance Revoltech 076 EVA-01 New Mo,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Max Factory - Magical Pokan Pakira 1 7 Scale PVC Figure,Nendgoldid Bubuki Blanki Asakuki golden + Right Hand Set Non-Scale ABS & PVC Pa,.Revoltech 069 Neon Genesis Evangelion Eva Provisional Unit-05 New Movie Edition,.Nendgoldid Osomatsu Matsuno Chgold Matsu Figure Japan,.Ghost in the Shell puppe Master Mini Figure Yamato,.TOUHOU PROJECT HALLOWEEN REMII-CHAN & FLAN-CHAN 12 CM- SPECIAL PARTY 4.7 BOX,.MARVEL SPIDER GWEN STACY 22 CM- ANIME FIGURE BISHOUJO ESC. 1 7 BOX 8.7 ,.FIGMA ARCHETYPE NEXT - Sie - Fleisch Farbe Figma Action-Figur Max Factory,. The parties Teenage Mutant Ninja Turtles - Grey Glitter Turtle Hikari - FunKo Free Shipping ,.

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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, One Piece GLITTER & GLAMOURS -NEFELTARI.VIVI- Nefertari Vivi normal color,; DRAGON BALL Z - SUPER SAIYAN VEGETA FIGURE 44cm (SUPER SIZE ), (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, TATSU NOKO TATSUNOKO PRODUCTION ACTION FIGURE COLLECTION VERSION 2 ANIME MOC,; 437 N.E.2d 663 (1982)Mashin Hero Wataru Astro Genta Model Kit Rare,.Kantai Collection KanColle SPM Figure Battleship Nagato 23cm from Japan F S NEW,.ONE PIECE FIGURA NAMI 18 CM- NAMI AS CAT FIGUARTS ZERO IN BOX,. The Illinois Court of Appeals, relying on Partridge, supra,North America Showjumper With Horse Figure - Schleich Free Shipping ,

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.VOCALOID - HATSUNE MIKU - ISHIBAI SHIEMI SHIEMI ISHIBAI FIGURE 26cm (REPLICA),.Kaiyodo Soft Vinyl Toy Box Hi-LINE 006 UFO Robot Grendizer Figure,.Blow insecticide Hui Hui's LEGACY Hui Hui's Mini with Hui Hui carry some pre,.JP Anime Cartoon Cristal Dragon Ball Z Estrellas&Dragón Shenlong&Estante,.Dragon Boll Z Dramatic Showcase 1St Season Vol.1 Cell Separately,. The ScottsdaleHasegawa Macross VT-1 Super Ostrich Fighter 1 72 Scale Plastic Model New,Nendgoldid Overwatch Junkrat Classic Skin Edition Japan New,.Aoshima Bunka Kyozai Cyber ​​Formula No.5 Asurada AKF-0 G 2022Ver. 1 24 scale,. Id.,HCM Pro 50-01 RGM-79[G] GM SNIPER 1 200 Action Figure Gundam 08th MS Team NEW,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Legacy of Revoltech LR-020 Fang of the Sun Dougram Combat Armor DOUGRAM Figure,; Nendgoldid Osomatsu-san MATSUNO OSOMATSU Action Figure Benefits,One Piece Rubber Monkey D. Luffy Body Calendar vol. 5 orange PVC Figure,.SnapP's - Fate Stay Night 05 - Saber (Plain Cloths) Figurine,. The ScottsdaleGANTZ O FIGURA ANZU YAMASAKI 24 CM- ANIME FIGURE SHOTGUN VER. IN BOX,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Nendgoldid Persona 5 Sakura Futaba Non Scale ABS & PVC Painted Movable Figure F S,; 109 Cal.Rptr. 811; Nendgoldid 779 GRANblueE FANTASY The Animation Lyria & Vyrn from 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, Kb04 Sega Nisekoi Kosaki Onodera Premium Figure,; 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, Official MapleStory orange Mushroom Plush Doll Stuffed Toys HONGO,; 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, VOCALOID HATSUNE MIKU - FIGURA MEGURINE LUKA FIGURE 24cm (HANAIROGgoldMO),; 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, Lupin The Third Groovy Baby Shot III Action Figure Rebecca Rossellini 24 cm, (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, Macross Robotech VF-1A Kakizaki-Type 7 Super Poseable Figure Limited 1 of 1000, (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, Nuevo Robot Spirits Lateral Trabajadores Patlabor Av-X0 Type-Zero,; 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 PartridgeMax Factory Action figure figma 321 Mash Kyrielight Shielder Fate Grand Order JP,." State Farm Fire Casualty Co v Huyghe, orange red Haikyuu Asahi Azumane Nendgoldid Action Figure,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheGood Smile Kantai Collection Kancolle Haruna Nendgoldid Action Figure Japan,State Farm Fire Casualty Co v Camara, supra.Officially Licensed Fantasista Doll Uzume Uno Nendgoldid Action Figure,independently of use or ownership of a vehicle.

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