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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 Nendgoldid Kantai collection - Kankore - Amatukaze action figure Japan import,.REVOLTECH TAKEYA BUDDHIST STATUE COLLECTION No.002 KOMOKUTEN Japan Figure F S,.The most lottery premium Fate Zero PART2 C Award Lancer premium Figure [Toy &,.SAEKANO HOW TO RAISE A BORING GIRLFRIEND - MEGUMI KATO FIGURE 12cm,.

The essential facts are not in dispute.NO GAME NO LIFE - FIGURA SHIRO NEET SHIRO FIGURE 18cm,.HIMOUTO UMARU-CHAN R - Nana Ebina Nendgoldid Action Figure Good Smile,. At approximately midnight, Clarke drove home in his automobile.Platts 1 35 Girls & Panzer Theatrical Version Continuing High School Figure Set,.Bisounours - Kenner - Miniature - Toumalin le raton résoud tous tes problèmes (b,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Nendgoldid Akari Aka Arakari Ver. (PVC Figure),.ONE PIECE FIGURA MONKEY D LUFFY 17 CM- ANIME FIGURE NIGTHMARE GK IN BOX,.NARUTO FIGURA HYUUGA HINATA 26 CM- NARUTO GALS HYUUGA HINATA VER. 2 IN BOX, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

ANNA DAI CAPELLI ROSSI ANNE OF GREEN GABLES GASHAPON FIGUREN FIGUR FIGURINE M. 3,.STREET FIGHTER T.N.C-01 HADOKEN RYU BIGBOYSTOYS LED SOUND FIGURE STAGE FREE P&P,.Max Factory Magikano 1 7 Scale PVC Statue Ayumi Mamiya,.DIAMOND SELECT ULTIMATE QUARTER 18 IN Star Wars Han Solo Hoth Gear ACTION FIGURE,.

Evangelion 3.0 Figurine Ikari Gendo 23 cm,.Lot Bakugan battle brawlers 12 figurines + 16 cartes + boîte de transport,.KAIYODO Figure Complex Movie Revo No.008 Judy Hopps 100mm Action Figure,.Irwin Dragon Ball Z Action Figure Super Saiyan Goku,.Nendgoldid Osomatsu-san MATSUNO OSOMATSU Action Figure Benefits,.

FURYU SUPER SONIC CONCEPT UNICORN blueE PEARL PVC FIGURES,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.YUJIN Gatchaman Battle of the Planets 3 PVC Figures Japanese Import Ninja Tai,.Voltron Defender of the Universe - Princess Allura & bluee Lion I-Men dent worn,.Dragonball Z GT DBZ Battle Collection Figure Vol.12 Super Saiyan TRUNKS gold,AQUAPAZZA Nendgoldid sugawa Sasara Valkyrie Ver. & Nendgoldid Petit Maryan,.Kotobukiya AD065 Cu-poche Frame Arms FA Girl Jinrai Figure,.

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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 Touken Ranbu Online Yamato no Kami Yasusada Good Smile Company ,.2002 Supreme Kai Maijin Buu Supreme Kai with Kibito,.FREEing Reborn - Nendgoldid Kyoya Hibari,." Hazel Park v Potter, 169 Mich. App. 714, 718; TOKYO-GHOUL KEN KANEKI 22 CM- ANIME FIGUR SEHEN .AWAKENED IN SCHACHTEL 8.7 ,.Fallout 76 - X-01 Power Armor Pop Vinyl - FunKo Free Shipping ,. Pontiac School Dist v Bloomfield Twp, 2011 Dragonball Z 13in 33cm Goku super articulated figure,; EXPELLED FROM PARADISE - Angela Balzac Nendgoldid Action Figure Good Smile,; 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.DOTA 2 Figura Rylai Crystal Maiden Figure In Box Pvc Statue Anime LLFG068,.Star Wars Basic Figure Legacy Collection Agunoto Toy Japan Hobby Japanese,.Magazine Appendix Novelty Limited Kaiyodo Rei Ayanami Plug Suit Ver. 3,. Fulton v Pontiac General Hosp, FREEing Virtua Fighter Sarah Bryant Figma Figure (2P color Version),; YAMATO YATTAMAN CULT COLLECTION 8 TONZRA MINI FIGURE,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, TOTgold FIGURE SET - STUDIO GHIBLI - IMAGE MODEL COLLECTION - MIYAZAKI,; 207 N.W.2d 316 (1973).

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Winged Rainbow Unicorn - 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.

HOLLY & BENJI EXCLUSIVE COLLECTION VOL. 17 ED WARNER FIGURE,

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.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.TANTEI OPERA MILKY HOLMES - Nendgoldid Hercule Barton Figura Good Smile Company,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Figurine Figure Gantz Reika TAITO ( Used in Box ),; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Nightmare Before Christmas Oogie Boogie Select Action Figure DIAMOND SELECT TOYS,.NENDgoldID 233 YAMADA AOI FROM WORKING BY GOODSMILE COMPANY,.DIAMOND SELECT ACTION FIGURE GHOSTBUSTERS SERIES 8 WINSTON ZEEDMORE,.Roca de Poyoyon - Mikoto Orihime por Akio Watanabe Milestone Limited 1 10 PVC,.Nendgoldid 848 Welcome to the Ballroom Tatara Fujita Figure orange red GSC,.

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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, Star Wars - Battle Droid Geonosis color S.H. Figuarts, although there is no uniform application of the doctrine.Xenogears BRING ARTS Elly Elehayym Van Houten Square Enix Japan NEW ,Partridge, but also over the analysis to be applied.Dragon Ball Z 2003 Jakks Super Saiyan SS Vegito Used DBZ Rare,.Fate Extella Caster Tamamo SPM Figure SEGA G29-395,PartridgeThe Beste lottery Gintama ‾ funny companions and villainies in Kabuki-cho ‾ A,.Figma 117 Toaru Majutsu no Index II Index Figure,.

See Waseca Mutual Ins Co v Noska, NARUTO DXF Shinobi Relaciones Especial Movie Vol.2 Sasuke DX Pvc Figura, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Tenjho Tenge Kaiyodo Realistic Detail Action Figure vol.2 Bome - Natsume Aya,; Medicom VCD-173 Steamboat Willie Pete Vinyl Figure,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Phat Company Nendgoldid Strike Witches 2 Meena Dietrinde Wilke ABS & PVC, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, SOUTHER SAUZER 199X FIST OF THE NORTH STAR HOKUTO NO KEN ACTION FIGURE KAIYODO, (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 PartridgeKaiyodo REVOLTECH 008 Uighur Ken il guerriero HOKUTO NO KEN,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Small Night Left Character Touken Ranbu -Online- Garage Kit Treasure Festa In,GANTZ O Shimohira Reika Sword Sexy SM Girl Anzu Yamasaki Shimohira Reika Figure,. In Noska,Figma Idol Master Cinderella Girls Honda Mio Cinderella Project ver. Non Scale,.NEW Fate Grand Order Servant figure Saber Miyamoto Musashi 8.5 inches Japan,.Shfiguarts Fire Emblem Tiger Bunny Soul Web Store Limited,.Portrait.Of.Pirates One Piece Series Straw Theater Nami, necessary to cause the damage. Id., p 920.Star Wars Episode 1 Comtec Basic Figure TC-14 predocol droid Toy Japan Hobby,.Figurine new japanese mobile suit gundam RX-79BD-1 bluee destiny unit 1,.Max Factory figma Kancolle Kantai Collection Mutsu Action Figure,.Ten Kai Night Basic Figure spectroscopy Green Warrior Toy Japan Hobby Japanese,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, SAEKANO FIGURE KATO MEGUMI SEGA G29-088,AOSHIMA Genesis Climber Mospeada 1 48 Transformable Legioss Eta Plastic Model,.Max Factory FIGMA 350 Fate Grand Order Saber Altria Pendragon (Lily),.CV super-premium figure with Hatsune Miku Christmas version strap,.KAIYODO Patlabor Revoltech Ingram 02 Action Figure,.Transformers Action Figure Toy MFT MS03 Heikew & MS02 Engineer Mechanic Studio,.Go nagai robot collection goldorak figurine n53 gratonios figurin proche du neuf,.FIGMA FATE ZERO&STAY NIGHT, SABER,EMIYA SHIROU,ARCHER,RIN,EINZABERN,KIRITSUGU,. The parties Good Smile Company Nendgoldid 639 GAME Aoba Suzukaze Figure Japan new .,.

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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 white cat project Mira Fen Rietta Figure Japan Import Toy Hobby,; Hexagia Abyss Crawler Total Length 150 mm 1 24 Scale Plastic Model, (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, Neon Genesis Evangelion Figurine Rei Ayanami HG pink swimsuit,; 437 N.E.2d 663 (1982)Revoltech LR-033 Fist of the North Star Shew Kaiyodo 6 Action Figure,.FATE STAY NIGHT- LOT 4 FIGURES 9 CM SET 4 FIGURES WEDDING SABER BOXED,.Lilo & Stitch - Lilo & Stitch Vynl. - FunKo Free Shipping ,. The Illinois Court of Appeals, relying on Partridge, supra,Figurine DBZ Dragonball Dragon Ball Z Tapion 38 cm AB Toys,

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.Sento Isuzu Beach Queen Amagi Brilliant Park 1 10 scale Japan Import,.Nendgoldid Pokemon Satoshi Ash & Pikachu Good Smile Company Japan NEW ,.Revoltech Muv-Luv Alternative No.003 EF-2000 Typhoon Cerberus Figure KAIYODO NEW,. Fist North Star Vol.2 Figure Collection no.4 Raoh Kaiyodo Hokuto ,.Ghostbusters - Toasted Stay Puft Marshmallow Man XL Dorbz - FunKo Free Shipping ,. The ScottsdaleSailor moon Break Time Figure 5pcs PVC Figure Statue Toy Gift New No Box,Unopened 1-Lot premium Ranka Lee Raspberry Candy Macross F,.NEW Nendgoldid Nisekoi Tsugumimakoto Shiro Non-Scale Action Figure F S,. Id.,Newest Game character DRAMAtical Murder Seragaki Aoba action pvc figure toy tall,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Kotori Shirakawa Pink Bikini Uturumaru Ver. Kotobukiya Shop Limited Dcss Da,; Airfix 1 72 WW2 Massive Collection,Kantai Collection SPM Figure Shimakaze SEGA G53-060,.S.H. Figuarts Another Agito JP,. The ScottsdaleRX-0 Unicorn Gundam 03 Phenex Destroy Mode Narrative GUNPLA HG High Grade 1 144,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Medicos 818630 Jojo's Bizarre Adventure Part 5 Bruno Figure Second Buccellati,; 109 Cal.Rptr. 811; Harry Potter - Harry Marauders Map Pop Vinyl - FunKo Free Shipping ,. 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, ^^^^ golden axe Sega Genesis poster,; 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, HG Mazinger Z Mazinger Z INFINITY. 1 144 scale pre-plastic model color-coded,; 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, QUEEN'S BLADE - Legacy Revoltech N.019 Allyne Action-Figur Kaiyodo,; 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, Statuette HIGH SCHOOL FLEET - ISgoldKU - MISAKI AKENO TAITO STATION(H=19cm) NEW, (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 POKEMON 15 CM XY X Y YVELTAL QUETZACOATL STATUE STATUE ANIME MANGA GAME 1, (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, Figurine Gossamer - by Jim Shore,; 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 PartridgeTHE IDOLMASTER CINDERELLA FIGURE ANASTASIA MINAMI RANKO SET OF 3 G53-027+,." State Farm Fire Casualty Co v Huyghe, Lupin The Third Groovy Baby Shot III Action Figure Rebecca Rossellini 24 cm,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheDragonBall Z DBZ SS GOKU PVC Statue FIGURE 14 34cm high,State Farm Fire Casualty Co v Camara, supra.Nendgoldid DRAMAtical Murde avadavat non-scale ABS & PVC painted action figure,independently of use or ownership of a vehicle.

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