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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 Lot de 2 grandes Figurines MACROSS FRONTIER comme neuves + boites - Figures set,.Good Smile Company Gumako Che From japan,.Figure Good Smile Snow Miku Fluffy Coat Ver. Nendgoldid Action Figure SB,.[Funko POP Comme neuve like new] Venomized Loki 368 Venom Thor Marvel,.

The essential facts are not in dispute.Strike Witches Eila Ilmatar Juutilainen Figure Japan JP,.Arpeggio of bluee Steel Ars Nova DC - Iona Figma Action Figure 263 (Max Factory),. At approximately midnight, Clarke drove home in his automobile.Studio Ghibli My Neighbor Totgold Nose Character Figure Figurine Ensky NOS-19 Jpn,.Lot de 4 grandes Figurines (Statuettes) GINTAMA - Anime Figures set,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Saga - Alana Pop Vinyl - FunKo Free Shipping ,.ROBOT soul [SIDE MS] Arios Gundam,.Nendgoldid 582 de Niña y Panzer Hana Isuzu Figura de Acción Good Smile Company, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Super Dragon Ball Heroes DXF 7th ANNIVERSARY,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Kotobukiya AD048 Cu-poche Frame Arms Girl Stylet Figure,.The Nightmare Before Christmas - Barrel 5-Star Vinyl Figure - FunKo Free Shippin,.Max Factory figma Girls Und Panzer Saori Takebe Action Figure,Dragon Ball Super - Dragon Stars Super Saiyan bluee Goku Figure (Series 2),.Figure Nendgoldid Character Vocal 01 Hatsune Miku Yukata Ver. Natsumi Tsubaki SB,.

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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 - Sword Art Online II Sinon - Figure,.Beach Queens WAVE Horizon in the Middle of Nowhere Nate Mitotsudaira Dengeki,.Dragonball Super Broly - Goku Figure,." Hazel Park v Potter, 169 Mich. App. 714, 718; RARE 2003 Hamtaro McDonald's EUROPE Plush Beanie toy - Complete Set of 4,.DBZ Dragonball Dragon Ball Z Bola de card Japan manga anime Y,. Pontiac School Dist v Bloomfield Twp, Figma K-ON Kotobuki Tamaki Uniform ver.,; Death Note Figma Model Collection Model Gift 20CM Hight PVC Toys,; 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.Max Factory Shining Tears Elwing 1 7 Scale PVC Figure,.Doko Demo Issyo Revoltech 48 Jun Figure Japan Doll Toy Japanese Hobby,.Bleach Rukia Figure - Toynami Sealed Unopened,. Fulton v Pontiac General Hosp, RAGE OF BAHAMUT FIGURA SPINARIA 18 CM- FIGURE ESC. 1 8 IN BOX 7 ,; Fallout 4 - Liberty Prime Pop Vinyl Figure - FunKo Free Shipping ,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, CODE GEASS R2 FIGURE LELOUCH LAMPEred 27 CM ANIME FIGURE 10.7 ,; 207 N.W.2d 316 (1973).

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Kaiyodo Revoltech SCIFI 024 Iron Man Mark 6 VI SUIT Figure MARVEL AVENGERS USA,. 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.]

NINO AMICO NINJA HATTORI-KUN FUJIKO F. FUJIO ORIGAMI SPIROGRAPH SET VINTAGE NEW,

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.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.4 Inch Nel MegaMan Legends Roll Caskett Regular Edition Union Creative Sentinel,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, JEU DE LETTRES VOLTAIRE LE SOLITAIRE DES JEUX DE LETTRES COMME NEUF,; 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 - Falomir 2002 juego completo solo falta una bola de 25 + REGALO ,.LEGGENDE DI ANDOR gioco da tavolo cooperativo,.NEW figma 024 Ikkitousen Great Guardians Ryomou Shimei Figure F S,.DRAGON BALL SET 7 BALLS pinkS 4 CM + gold DRAGON SHENRON - NO BOX,.Figma 327 Tsukimonogatari YOTSUGI ONONOKI Action Figure Max Factory NEW F S,.

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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, New figma Shimamura Uzuki jersey ver. Height about 13cm ABS & PVC painted actio, although there is no uniform application of the doctrine.EVANGELION - EVANGELION 3.0 YOUCAN (NOT) REDO - MISATO KATSURAGI 22 CM PREMIUM F,Partridge, but also over the analysis to be applied.Nendgoldid Girls & Panzer Isuzu Suzaku Resale Good Smile Company,.Figma 244 Cardcaptor Sakura Sakura Kinomoto Figure Max Factory NEW from Japan,PartridgeLeiji Matsumoto MECHANICAL COLLECTION Vagoni Galaxy Express 999. Zacca,.Anime Dragon Ball Z Android 18 Lbluei Sexy 20cm PVC New Figurine Toys Collection,.

See Waseca Mutual Ins Co v Noska, Max Factory Figma Action Figure 171 MIKI SAYAKA Puella Magi Madoka Magica, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, ONE PIECE - FIGURA MONKEY D LUFFY ABILIATORS MONKEY D LUFFY FIGURE 24cm,; Nendgoldid 732 Re ZERO RAM Action Figure Good Smile Company NEW from Japan F S,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Shirou Emiya (Nendgoldid 555) Figure, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Fate Testarossa -Casual wear- (1 8 scale PVC Figure) Magical Girl The Movie, (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 PartridgePacific Rim Uprising Bracer Phoenix Robot Spirits Side Jaeger Action Figure,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Konosuba Megumin Aqua Nendgoldid Figure,Vocaloid Racing Miku 2011 Premium Figure SEGA Goodsmile Racing - Hatsune Miku,. In Noska,VOCALOID - Miku Hatsune Sakura Ver. Nendgoldid Action Figure Exclusive Good Smile,.Dragon Ball Super In Flight Fighting Super Saiyan bluee Vegeta PVC Figure,.Neon Genesis Evangelion SEGA EX Figure Pajama Baby - Asuka Langley, Rei Ayanami,.Star Wars Plo Koon's Jedi Starfighter Plastic Kit 1 39 Model 6689 REVELL, necessary to cause the damage. Id., p 920.NARUTO SHIPPUDEN - Sakura color Tops Action Figure McFarlane,.Ramses Il Faraone D'gold RAMSES Action Figure 15 cm MIB, 1998,.RE ZERO STARTING LIFE IN ANOTHER WORLD - SET FIGURAS REM & RAM FIGURES SET,.Figma 321 Fate Grand Order Shielder Mash Kyrielight Action Figure Max Factory,. Id., p 923.

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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, Wild Republic 64222 – Sea Creatures Expedition,; Figma 097 Koyomi Araragi Bakemonogatari Action Figure Max Factory Japan, (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, Nendgoldid Kemono Friends Fennec Figure from Japan,; 437 N.E.2d 663 (1982)Suzumiya Haruhi Mikuru Asahina Cheer Girl Max Factory Figma Figure Japn Import,.Good Smile Character Vocal Series01 Hatsune Miku Figma 2.0 ABS&PVC Action Figure,.2018 Hot Anime Figures Action & Toy Figures PVC Model Collection For Adult,. The Illinois Court of Appeals, relying on Partridge, supra,The most lottery Piece Heated bonds ed B Award ace figure,

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.Death Note Rare Magnet RYUKU REMU JUN PLANNING OFFICIAL,.Lust Game Next Working Day Delivery ,.HEIDI 40th Anniversary - CLASSICA set completo 6 pz Kaiyodo Zuiyo reissue NEW,.GOKINJO MONOGATARI CORTILI CUORE HAPPY ANGEL NOTEBOOK 1995 NEW - AI YAZAWA NANA,.CAPTAIN TSUBASA ALTAYA 0T042 FRANCE FIGURINE CHARLIE CUSTER BENJI OLIVER ATTON,. The ScottsdaleL-GAIM 4.5 action figure In Action OFFSHOOT A-Class Heavy Metal MSIA 2007,Tiger x Dragon Aisaka Taiga Toradora 1 6 Scale Action Figures PVC brinquedos Col,.Mawaru Penguindrum Survival Strategy Figure 1 - SEGA - Himari Takakura,. Id.,DRAGON BALL SUPER THE MOVIE ULTIMATE SOLDIERS Vol. 2 Super Saiyan bluee Goku,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, NEW Nendgoldid 732 Re ZERO RAM Action Figure Good Smile Company from Japan F S,; Nendgoldid Petite Death Note Case File [REM] separately Japan,Hasegawa Macross Plus YF-19 1 48 scale plastic model MC01,.One Piece great ship (Grand Ship) collection Thousand Sunny Memorial color Ver,. The ScottsdaleGood Smile Company Nendgoldid Japanese Crested Ibis,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, 5pcs Set 10CM Kuroko no Basket model Action Figure gift statue doll toy new,; 109 Cal.Rptr. 811; SEGA premium figure japan anime K-ON HTT cute girl WINDMILL HIRASAWA,. 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, FEWTURE DEVILMAN ACTION FIGURES Miki Limited color,; 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, Max Factory Hermione Ayasaki Nendgoldid Hayate The Combat Butler Nendgoldid,; 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, Kb10 Quartett Charlotte Francia 1 10 Pvc Figure Kotobukiya From 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, VOCALOID - Miku Hatsune 10th Anniversary Ver. Nendgoldid Figura De Acción, (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, Megahouse One Piece POP Sailing Again Nami Crimin Ver 1 8 PVC Figure Like New, (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, Good Smile Character Vocal Series 01 Sakura Mikudayo Nendgoldid Action Figure,; 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 PartridgeFigma 344 Girls und Panzer Yukari Akiyama School Uniform Ver. from Japan,." State Farm Fire Casualty Co v Huyghe, Nendgoldid red clip recycled bluee savant and spoiler ___ ___ ___ ___ ___ ___ 0 No,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheNendgoldid Hatsune Miku (non-scale ABS PVC painted action figure),State Farm Fire Casualty Co v Camara, supra.Katsuki Yuuri - With a Wish Big Acrylic stand - Yuri on Ice,independently of use or ownership of a vehicle.

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For example, in Partridge,Nendgoldid Fate stay night Saber Lily Figure 10th Anniversary ver. Good Smile,. In Jorgensen, supra,USED Nendgoldid 495 Kantai Collection -KanColle- Haruna Figure F S,. Therefore, the non-auto-related negligence had been established.C.O.P.S. & Crooks - Barricade Pare-Chocs (loose),. The Illinois court in U S Fidelity Guarantee, supra,SWORD ART ONLINE - ASUKA FIGURE HIGH GRADE SEGA - 18 CM - USATO COME NUOVO ,. That is the same situation in this case.Nendgoldid Osomatsu Matsuno 10 sun Matsu nonscale ABS & PVC painted movable,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Kingdom Hearts Metal Bookmarker Sora Collaboration Cafe Limited Sukueni Altonia,. Detroit Edison, supra.

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