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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 Replica Mano E.T con luci - Proplica E.T. - E.T. Hand,.Figma Kamen Rider Spear Japan,.MODEROID Mazinkaiser Plastic Model Kit Good Smile Company Japan NEW,.One Piece Figuarts Zero Action Figure - Bredhers' Bond - Ace,.

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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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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.Figurine figure megaman mega man capcom sh figuarts zero neuf new,.Zoids Apinkurer Mint in Box,.One Piece Grand Ship Collection Going Merry Memorial color Ver. Model Kit,. Fulton v Pontiac General Hosp, Max Factory Figma The Legend of Zelda Skyward Sword Link PVC Figurine,; Robot Spirits Damashi Side Labor Ingram 1 & 2 Parts Set From Patlabor The Movie,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Clairefontaine 812775 °C Plumier Dragon Ball Beerus 21 x 5.5 x 8 cm, Brown,; 207 N.W.2d 316 (1973).

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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.]

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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.Kaiyodo Revoltech Fraulein Action Figure 04 Pocco,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Good Smile Nendgoldid 848 Welcome to the Ballroom Tatara Fujita Figure 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.PSL HG Great Mazinger (Mazinger Z INFINITY Ver.) 1 144 scale color-coded,.DE TONY HÉROÏNE COLLECTION HINAGIKU AUCUN YOUSEI DAISY-1 6 COMPLETE FIGURINE 4,.COMIC-CON EXCLUSIVE MON-SIEUR BOME JUNGLE EMMY Cow Pattern 8 in Hot Anime,.Figma 032 The Melancholy of Haruhi Suzumiya Haruhi Suzumiya Cheerleader Ver.,.Lyrical Nanoha A's Good Smile Company 1 8 Scale Painted Figure - Fate Testarossa,.

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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 752 Kemono Friends Serval Figure NEW Japan new ., although there is no uniform application of the doctrine.NEW Nendgoldid 625 Shironeko Project MIRA FENRIETTA Action FigureGoodSmileCompany,Partridge, but also over the analysis to be applied.Nendgoldid More aftermarket parts 01 Figure Japan Import Toy Hobby,.DRAGON BALL Z - TRUNKS & GOKU & KRILLIN & MAJIN BUU - 4 FIGURES FUNKO REPLICA,PartridgeMikumo ginnue Beste Lottery Figure Shoube goddess,.Nendgoldid Oreimo Kirino Kousaka Action Figure Good Smile Anime Japan,.

See Waseca Mutual Ins Co v Noska, Son Goku A Saiyan Raised On Earth S.H.Figuarts figurine articulée (Dragon Ball Z, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Glow In The Dark Beer Pong - Party Drinking Game Set Adult Gifts Games Gadgets,; 20cm Anime Naruto Hyuuga Hinata Tsunade Sakura Haruno Figure Toys Naruto,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Frame Arms Girl Innocentier Total Height Approximately 150 mm NON Scale color-, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, VERY RARE VINTAGE 90'S GUNDAM 8 CHROME FIGURE KO ANIME MANGA NEW SEALED , (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 Kemono Friends Serval Figure from Japan,.

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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, Neca JASON VOORHEES Venerdì 13 FRIDAY THE 13th PART III LIFE-SIZE MASK Pre-order,; Lagrange The Flower of Rin-ne Revoltech No.122 Vox Aura Action Figure, (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, Kotobukiya Cu-poche Extra Animal Parka Set White Cat Figure Accessories,; 437 N.E.2d 663 (1982)GETTER Action GOKIN Great Mazinger Mazinga Getter Shogun warrior no popy,.The Price is down Macross Limited Edition Set,.USED Revoltech Fist of the North Star Revolution No.021 Kenshiro Ken's Rage Ver.,. The Illinois Court of Appeals, relying on Partridge, supra,Vocaloid Hatsune Miku Kagamine Rin colorfull Drop Figure Set G36-012,

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.Pokemon Lillie & Snowy (Alolan Vulpix) Figure, G.E.M. Series MegaHouse, Like New,.Old Jigsaw Puzzle Albator Orli Toy Antenna 2 1980,.Tamashii Nations Robot Spirits Side Franxx Delphinium Darling in the Franxx ,.Lilo & Stitch - Experiment 626 Pop Dome - FunKo Free Shipping ,.THE IDOLMASTER CINDERELLA GIRLS FIGURE MIKA JOUGASAKI 11 CM ANIME FIGURE,. The ScottsdaleKotobukiya ADE16 Cu-poche Extra Anne Variouse Face Expression & Ponytail Set New,RAH 100 Micro Batta Set - Medicom,.OBITSU ARMS No.1 Sword (KATANA) Basic, bluee handle 1 3 scale line) (no temper,. Id.,Mutant Turtles Figure Collection T-02 Raphael Toy Japan Hobby Japanese Kids Gift,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Kancolle Kantai Collection Kaga Figure Medicchu Phat Company G29-320,; Figma Fleet This shop - ship this - snowstorm Animation ver. nonscale ABS & PVC,Dragon Ball Summer Gift Series Karin gold Ver. PVC Figurine,.GREEN LANTERN CLASSIC COSTUME ARTFX+ ST,. The Scottsdale1 72 20mm painted Napoleonic Polish (Duchy of Warsaw) uhlans,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Harry Potter Slytherin Wax Seal NOBLE COLLECTIONS,; 109 Cal.Rptr. 811; Inner Number Kasen And Fixed Touken Ranbu-Online-Garage Kit Event Limited,. 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, Jojo's Bizarre Adventure Figure Gallery 1 Josuke Higashikata Japan Import,; 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, Hatsune Miku Project DIVA - X HD SPM figures From Jap From japan,; 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 22 CM-ANIME FIGURE HARVEST MOON VER. IN BOX,; 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, SHUNYA YAMASHITA - Angela Fine Art Büste Kotobukiya, (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, QUEEN'S BLADE - Ymir 2P Farbe Revoltech 012 Action-Figur Kaiyodo, (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, Zoids Gravity Saix Mint in Box,; 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 PartridgeMetal Figure Collection MetaColle Big Hero 6 BAYMAX Standard TAKAR From japan,." State Farm Fire Casualty Co v Huyghe, Nendgoldid snow miku magical ver.,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheEnzyme - Max Factory Guyver Trading Figure Set 2 ,State Farm Fire Casualty Co v Camara, supra.Ghostbusters Filmation - Figurine articulée - Fib Face Double Face (loose),independently of use or ownership of a vehicle.

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