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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 HIGHSCHOOL DxD FIGURE RIAS GREMORY 26 CM ANIME FIGURE SEXY 10 ,.Arpeggio of bluee Steel Ars Nova KIRIKUMAS KIRISHIMA PVC Figure Phat NEW Japan,.Gundam Age Gage-ing Builder Series Gafran Figure Import FREE S H US Seller,.ONE PIECE - SET 4 FIGURAS LUFFY, SIR CROCODILE, KUZAN & ENEL 4 FIGURES SET,.

The essential facts are not in dispute.Krilin Niño Dragon Ball S.H Figuarts Figura 10 cm,.TSSD GERMAN INFANTRY WW2 LONG COATED WINTER TROOPS,. At approximately midnight, Clarke drove home in his automobile.GUNDAM OPERATION MS 14 GELGOOG TOYBOOK 1ST COLLECTION MIB,.Furyu Cardcaptor Sakura roller Kinomoto Special Figure Series In Uniform,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Vita Magical Girl Lyrical Nanoha A S color Resin Cast Kit Event Limited,.[USED] Kamen Rider Ex-Aid DX Mighty Bredhers XX Gashat,.Nendgoldid Hatsune Miku Absolute HMO · Edition (non-scale ABS & PVC painted actio, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Shazam - Pedro Pop Vinyl Figure - FunKo Free Shipping ,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.VOCALOID RIN-CHAN NOW - FIGURA KAGAMINE RIN KAGAMINE RIN FIGURE 21cm,.ONE PIECE FIGURA LUFFY MONKEY D.LUFFY STATUE IN BOX ANIME JAPAN FIGURE 28cm,.IL MAGICO MONDO DI GIGI SCETTRO FONDO DI MAGAZZINO VINTAGE TOYS,Horizon on the boundary Aoi · Kiyomi (1 10 scale PVC painted finished product),.Racing Miku 2012 Figure 8 Inch Sega Goodsmile Hatsune Miku Figure From Japan,.

Furemuamuzu Girl frame Music Girl Hatsune Miku Height approx 150mm NON scale pl,.NEW FRAUREIN RevoltechNo.020 Mari Makinami Illustrious OldType Plug Suit KAIYODO,.ONE PIECE SET 4 PCS LUFFY, Zgold, NAMI & SANJI 9-17 CM SET 4 FIGURES BOXES,.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.Good Smile Fate Stay Night Saber Lily Nendgoldid Figure From Japan F S New,.Zoids Great Britain Bio Megaraptor Clear Version 1 72 Scale,.Hatsune Miku Project DIVA 2nd premium figure Hatsune Miku all one,." Hazel Park v Potter, 169 Mich. App. 714, 718; SAILOR MOON CLEAR colorD SPARKLE DRESS COLLECTION VOL.2 FIGURE COLLECTION SET (,.Dragon Ball Z , SON GOKOU ,Super Sayan 3,dbz hscf-4 13, action figure Highspec f,. Pontiac School Dist v Bloomfield Twp, Rebuild of Evangelion SEGA 2010 EX Figure Private Time - Ayanami Rei 17cm,; Figma 173 Hidamari Sketch x Honeycomb Yuno Figure Max Factory,; 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. . . .

Funko pop Autographe Emma Watson Signed COA Harry potter,.Blitz insecticide light brand new bedroom, perfect for a room with food,Figuarts ZERO Port Gas D. Ace,. Pontiac School Dist, supra.DS-07W Dasin SLAM DUNK Ryonan Player No.7 Akira Sendoh Action Figure - White,.

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A motion for summary disposition under MCR 2.Nuovo Revoltech Muv-Luv ALTERNATIVENO.004 F-18E F Super Hornet black Coltelli,.To Heart 2 Another Days Aika Komaki Maid Figure Japan,.Kaiyodo Pre order Future Boy Conan Gigant figure ROOM-4 New From Japan F S,. Fulton v Pontiac General Hosp, Airfix 7th Cavalry 1 32 Ref. 51469-3, 24 Pieces - Window Box - 1970s Vintage,; Super Hero Hulk 3D LED Pokemon Pokeball Night Light Table Lamp Birthday Gift,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, CANNABIS MARIJUANA 420 BOARD GAME LIMITED EDITION AROUND THE WORLD IN 80 TOKES,; 207 N.W.2d 316 (1973).

Nendgoldid Osomatsu-san MATSUNO Action Figure TODOMASTU,. 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.]

SET MANGA ANIME VINTAGE HOKUTO NO KEN IL GUERRIERO-FIGURE JULIA YURIA,LYNN,CARDS,

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.

ONE PIECE - Zgold Rgoldnoa Figura de Acción 18cm,. First, the policy's exclusionary language is not ambiguous.Shaun of the Dead - Shaun Vinyl Idolz - FunKo Free Shipping ,.Arpeggio of the bluee Steel - Ars Nova - Nendgoldid Iona (Nonscale ABS & PVC Paint,. See Allstate Ins Co v Freeman, supra, pp 665-667.TAKOM 1 35 Offroad SUV w Militia Figure 1 TKO 2007 Plastic model,. We disagree with the trial court's second and third statements.Good Smile Fate Stay Night Saber Lily Nendgoldid Figure Japan Import,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Recenttoys - Brainstring - NUEVO,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Figma 034 The Melancholy of Haruhi Suzumiya Haruhi Suzumiya Summer Clothes ver.,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Revoltech EVANGELION EVOLUTION Reform 2 Unit B about 135 mm EV-011 Japan,.HOWL'S MOVING CASTLE - Witch of the Waste Turnip & Sophie Figure Set Cominica,.ARTFX+ Star Wars Awakens First Order Stormtrooper FN-2199 1 10 Kotobukiya,.S.H. Figuarts Sheryl Nome Anniversary Special color Ver. Macross NEW F S,.Card Captor Sakura Clear Card Figure Sakura Original Taito Statue Doll,.

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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, Go nagai robot collection goldorak figurine n92 dokaider figurine proche du neuf, although there is no uniform application of the doctrine.Nendgoldid Keeps her way of raising Sawamura Spencer English pears non-scal,Partridge, but also over the analysis to be applied.Cobra - Space Adventure Cobra The Movie Pamphlet - Towa Japon,.Green Hornet - Kato Bobble Head - Hollywood Collectibles Group Free Shipping ,Partridgeorange red Haikyu Hajime Iwaizumi Nendgoldid Action Figure,.Nendgoldid Moka Haikyuu Konno High School VS Shiratori Gakuen High School Cris,.

See Waseca Mutual Ins Co v Noska, Dragon Ball Z Saga Cell Irwin toy´s TEEN TRUNKS Figura de Acción, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Macross Frontier Koi-Movie -New â ¢ Unused goods teapot for the movie version,; Dragon Ball Super - Son Goku Fes Vol 3 Goku Super Saiyan 3,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Holly & Benji 3D Collection Ted Carter Statuette Figure, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, One lottery One piece ROMANCE DAWN for the new world First part E prize Brook, (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 PartridgeNendgoldid snow miku magical ver.,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, 10CM Re Life in a different world from zero Ram Anime Action Figure Model toys,BAKUMAN - Trading Figure Set Phat Company,. In Noska,Goodbye Ginga Railway 999 Andromeda Terminal Station Normal All 8 species,.Nendgoldid 579 Strike Witches 2 Perrine Clostermann Action Figure Phat NEW Japan,.S.H. Figuarts pounding Precure Cure Heart about 150mm PVC & ABS-painted action,.Nendgoldid Dr. Slump Arale Norimaki Good Smile Company Japan New, necessary to cause the damage. Id., p 920.Gutterhead-Adult Party Game Dirty Drawings.Funny Board Game Drinking Hen party,.Eikoh Puzzle & Dragons Shining Lance Wielder Odin Figure Collection Vol.3,.Tatami base (large) bluee dull size about 215 mm × 215 mm × 15 mm,.NEW Revoltech Fist of the North Star Revolution No.007 Raoh Figure KAIYODO F S,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Good Smile Pop Team Epic Pipimi Nendgoldid Action Figure,Guardians of the Galaxy - Groot XL 6 inch Dorbz - FunKo Free Shipping ,.ALTER Alter K-ON Tsumugi Kotobuki 1 8-Scale PVC Figure,.Revoltech TAKEYA No.008 GeGeGe no Kitaro NEZUMI KAIYODO Figure OTOKO,.Rare print Shingen Zhang Zan (shingen Valkyrie) VF-1S,.Evangelion Figure Plug Suit 20th Gainax anniversary - SEGA Prize - Asuka Langley,.TTA Japan Signal Miniature Colle. Part 2 Gashapon 5 set mini Figure F S AB,.LEGO (LEGO) Nex Knights lance of hover Jaster Japan Limited,. The parties FATE STAY NIGHT- FIGURA SABER LILY 13 CM-ANIME FIGURE BOX,.

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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, S.H.Figuarts Heart Catch Precure CURE SUNSHINE SUPER SILHOUETTE Fig From japan,; Funko Pop Rides Game of Thrones - Night King & Viserion, (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, Ikki Tousen Kanu Unchou Special Adesugata Ver. Griffon Japan New B58,; 437 N.E.2d 663 (1982)Phat The Idolmaster Takane Shijou PVC Figure Statue Japan Import,.CAPTAIN TSUBASA ALTAYA 0T022 PIERRE ALCIDE FIGURINE FRANCE OLIVER ATTON 2017,.Figma Fate Zero Saber Zero ver. and ex ride Saber Motored Cuirassier set,. The Illinois Court of Appeals, relying on Partridge, supra,One Piece GLITTER & GLAMOURS -NEFELTARI.VIVI- Nefertari Vivi normal color,

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.WAVE Shin Megami Tensei Persona 4 Yukiko Amagi 1 10 Anime Game Figure,.Shokunyuu 2 Senae Aizawa Regular Edition 1 8 figure,.Ten Kai Night Basic Figure Gyanokkusu Toy Japan Hobby Japanese Kids Gift,.La Basize des Planètes - Mini-Puzzle n°7 - Civas Orli-Jouet,.goldorak Grendizer goldrake UFO Robot Manga Anime Spazer Disk Mini Character,. The ScottsdaleDIAMOND SELECT MARVEL GALLERY IRONHEART PVC FIG STATUA,Kaiyodo Movie Revo (Revoltech) Series No.011 Winnie the Pooh Action Figure,.Nendgoldid - THE KING OF FIGHTERS - Kyo Kusanagi - GOOD SMILE - Authentic - NEW,. Id.,DURARARA FIGURA SHIZUO HEIWAJIMA 22 CM- ANIME VER.1 8 COMP,LETE IN BOX 8.7 ,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Harry Potter Slytherin Wax Seal NOBLE COLLECTIONS,; [TOY] N Pgoldro the Little Penguin Making Bread With Mom Special,Revoltech Fist of the North Star Revolution No.018 Nameless Shura Figure KAIYODO,.Medicos SAS JoJo's Bizarre Adventure Part.4 The Hand Second Action Figure,. The ScottsdaleSWORD ART ONLINE - FIGURA ASUNA YUUKI ASUNA YUUKI ASUNA FIGURE 22cm,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, African Safari Eco Expedition - Wild Republic Free Shipping ,; 109 Cal.Rptr. 811; Dragon Ball Z Capsule Neo All Z Warriors Piccolo & Freezer MegaHouse B99,. 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, SAS (Super Action Statue) JoJo's Bizarre Adventure Part3 J.P. Polnareff 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, We Bare Bears - Grizzly Pop Vinyl - FunKo Free Shipping ,; 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, Piccolo three-dimensional Mousepad Kujo Miu Telephone Card with Limited Edition,; 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, Eikoh Puzzle and Dragons Figure Collection vol.18 Sakuya Prize Japan NEW F S, (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, The Amazing Spider-man ver.1 Spiderman Marvel Avengers Sega Prize, (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, Ulysse 31 - Puzzle MB 100 pièces n°2,; 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 PartridgeFigure Good Smile Company Nendgoldid 791 Sakura Quest Yoshino Koharu Figure SB,." State Farm Fire Casualty Co v Huyghe, SKYTUBE FIGURA MISAKI KUREHITO 23 CM- SEXY FIGURE KASUMIGAOKA UTAHA 9 BOX,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheThe Path To Pleasure Game Next Working Day Delivery ,State Farm Fire Casualty Co v Camara, supra.Tsukishiro Mina - Getsumen To Heiki Mina Alter figure PVC,independently of use or ownership of a vehicle.

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For example, in Partridge,Kaiyodo Takeya style freestyle disposable dragon coloring non-scale ABS & PVC pa,. In Jorgensen, supra,DRAGON BALL Z - SET 6 FIGURAS BATTLE OF GODS 6 FIGURES SET 14cm,. Therefore, the non-auto-related negligence had been established.One Piece - Esculturas Warriors Of The World Especial Monkey D. Luffy PVC Figura,. The Illinois court in U S Fidelity Guarantee, supra,The Nightmare Before Christmas - Zero 12 SuperCute Plush - FunKo Free Shipping ,. That is the same situation in this case.Nendgoldid Ending Terminal Isetta Isetta Non Scale ABS & PVC Made Painted Movable,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Model_kits Kotobukiya ADE30 Cu-poche Extra Angel Parka Set 4934054184033 MA,. Detroit Edison, supra.

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