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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 Figurine One Piece Sogeking en pvc 15 cm,.One Piece Mega House Portrait of Pirates NEO-DX Trafalgar Law 1 8 PVC,.FIGURA DRAGON BALL Z MASTER STARS PIECE - GOKU CHOCOOLATE FIGURE 27cm BOX CAJA.,.Power Rangers MegaForce Leon Laser Blaster Sentai Goseiger DX Knight Morpher Euc,.

The essential facts are not in dispute.1 Pcs 21.5CM One Piece Charlotte Katakuri Action Figure Model PVC figures doll,.Nendgoldid 77 Fate Unlimited Codes Saber Lily Figma Stay Night Zero S.H. Figuarts,. At approximately midnight, Clarke drove home in his automobile.2pcs Set Xenoblade Chronicles 2 Mythra Hikari Pyra-Chan PVC Figure New No Box,.MAGIC BULLETS - SASAOKA GUNGU - PIN UP GIRL FIGURE 13cm (SEXY ADULT FIGURE),. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Free Ship Ultra Magnus Transformers Kaiyodo Revoltech Super Poseable Figure,.FuRyu snagged figure MOONS 2 Full 3 figures set,.Yokai Watch Treasure Gear 01 DX Yo-kai Magnum & Pod Start Kit Limited Medal, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Macross EMS Fitness & Treatment Hyper MEF-3,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Cu-poche Magical Girl Madoka Magica Akemi Kaname ver.1.5 Action Figure,.Good Smile Company Nendgoldid Ash & Pikachu Action Figure Pokemon,.Figure Super Action Statue 62 The Hand Second Hirohiko Araki Specify color Ver.,Figurine de Amine NO GAME NO LIFE Shiro Bunny Girl Fille de Lapin figure 12cm,.Gundam RX-78-2 Action Figure Mobile Suit New in Box High Grade Model Kit,.

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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.Kotobukiya One Coin Tales of Symphonies Genis Figure Complete Boxed RARE,.Boxed Kamen Rider Decade Fiery W Movie War 2010 Legend Series Ex Figure King,.Legler Poldi Table-Soccer Sports Activities and Game,." Hazel Park v Potter, 169 Mich. App. 714, 718; Sailor Moon Full set of 7 capsule-toy product,.S.H. Figuarts Aikatsu Shibuki Ran winter uniform With initial award 135mm Toy,. Pontiac School Dist v Bloomfield Twp, The most lottery One Piece - punk hazard Hen - C Award Luffy figure,; Figure-riseBust Hatsune Miku [Limited Style,; 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.Fist of the North Star century Gekito book Figure Collection Vol.1 collection No,.UDF Little Mi & Drug Can Moomin MOOMIN Series 4 ULTRA DRTAIL FIGURE NO, 412,.Kb04c Good Smile Puella Magi Madoka Magica Homura Akemi School Uniform Figma,. Fulton v Pontiac General Hosp, Good Smile Company Nendgoldid - YURI on ICE Yuri Katsuki Casual Ver.,; Revoltech Fist of the North Star Revolution No.009 Rei White Hair Ver. Figure,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Neca IT PENNYWISE 1990 Stephen King ULTIMATE Version 2 ACTION FIGURE Pre-order,; 207 N.W.2d 316 (1973).

Fewture DevilMan SILENE Action Figure Series 3 FA-D03 Succubus bluee Seline,. 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.]

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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.US marine colour party tr,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Figurine DRAGON BALL FREEZA frieza FREEZER 100% special WCF neuf mint box figure,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Dragonball Z - Blood of Saiyans Goku Super Saiyan,.Hasegawa Tamago Girls 01 1 20 Masu Rirei F-2 Plastic model SP372,.Nendgoldid Detective Conan Edogawa Conan Non Scale ABS & PVC Painted Movable,.Kotobukiya Queue Posh Idol Master Platinum Stars Takane Shijo Action Figure,.Super Robot Chogokin Roi de Braves de Gaogaigar Grand Volfogg Figurine Articulée,.

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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, Figma Magical Girl Lyrical Nanoha Hayate Yagami Action Figure Good Smile Company, although there is no uniform application of the doctrine.THE super alloy GT-04 Mach Baron,Partridge, but also over the analysis to be applied.Little Twin Stars Zero Pastel Figures,.Re Zero - Starting Life in Another World - Rem [Nendgoldid 732] Free P&P,PartridgeOne Piece GLITTER & GLAMOURS ONE PIECE FILM gold NAMI MOVIE STYLE Nami anime fig,.Kotobukiya Eren Jaeger Titan Ver. MODEL KIT,.

See Waseca Mutual Ins Co v Noska, Chara Sleeve Collection Mat Series New Game Takimoto Hihumi (No.MT266) Movic, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, New Fisher-Price flipping in Meaux Outing cloth picture book (M4060),; S.H.Figuarts Kamen Rider Meteor Storm from Kamen Rider Fourze,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Friday the 13th - Jason Voorhees Savage World Figure - FunKo Free Shipping , (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Dragon Ball Super Dragon Stars Super Saiyan Goku Figure. gamestop exclusive, (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 PartridgeGUILTY CROWN INORI YUZURIHA 18 CM- ANIME VER. 1 8 IN BOX 7 ,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, NEW Detective Conan Amuro Toru 23cm Painted Figure from Japan F S,Sega Kantai Collection Kankore SPM Super Premium Akizuki Figure,. In Noska,Megurine Luka Max fábrica Vocaloid Luka Tony japonés Anime figuras una pieza,.Revoltech LR-033 Fist of the North Star Shew Kaiyodo 6 Action Figure,.[Good Smile Company] Nendgoldid Senjou no Valkyria 3 - Imuka,.MOBILE SUIT GUNDAM BIGRO Mobile Armor & MS-06R-2 ZAKU, necessary to cause the damage. Id., p 920.YUUKI YUUNA WA YUUSHA DE ARU - Yuna Yuki Hero Edition Nendgoldid Action-Figur,.Idol Master HARUKA AMAMI Bikini Figure Good Smile Japan,.One Piece Megahouse P.O.P. DX Figire Strong World Ending Version Nami,.Split - Hedwig Pop Vinyl - FunKo Free Shipping ,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Star Wars figures,Model cars PLUS toys and hobbies,Code Geass Lelouch of the Rebellion EXQ figure C.C. apron style,.Super Action Statue 67 Kakyoin Noriaki Second Hirohiko Araki Specify color Ver.,.Dragon ball Z Figure Set Goku Vegeta Gohan Cell Freeza Piccolo Ginyu,.Mon-Sieur Bome Collection CARMINE Vol.10 NEW SeptemCharm Magical Canan Kaiyodo,.The Melancholy of Haruhi Suzumiya Asahina Mikuru Cheer Girl ver. Japan import,.One Piece Figuarts ZERO PVC Statue Sabo Tamashii Web Exclusive (15 cm),.Pokemon Articuno Figura Figurilla Juguete 18cm,. The parties The most favorite dress ‾ The worst generation generation ‾ C prize killer figur,.

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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, DRAGON BALL Z THE SUPER SAIYAN TRUNKS 26 CM - MASTER STARS PIECE FIGURE IN BOX,; ONE PIECE Película gold Figuarts ZERO Sabo Estática Figura Tamashii Exclusive, (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, Kidou Senkan Nadesico HGK-01 1 1500 Nadesico Aquamarine B59,; 437 N.E.2d 663 (1982)Chara-Form Saber Altria Pendragon Fate Grand Order Aniplex Limited,.NEW Cu-poche The Idolmaster Hibiki Ganaha Figure KOTOBUKIYA F S,.1815 BRITISH NAPOLEONIC SOLDIERS (A),. The Illinois Court of Appeals, relying on Partridge, supra,Nendgoldid red clip recycled bluee savant and spoiler ___ ___ ___ ___ ___ ___ 0 No,

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.Broccoli 5thAnniversary Memorial photo Camus,.Nendgoldid Gatchaman Crows Utsutsu Non Scale ABS & PVC Made Painted Movable,.LIGIER Action GOKIN Great Mazinger Mazinga Getter Shogun warrior,.Mint Kizuna Monogatari I Iron And Blood Hen Premium Figure Kiss Shot Acerola,.Evangelion 2.0 The Groundwork Of Book 2 Japon Animé Livre Art Neuf Avec,. The ScottsdaleFigure SEGA Revoltech Nanael 2P color Revoltech Queen's Blade Series No. 004 MA,Puzzle & Dragons Figure Collection - Eikoh - Yuukyuu no Ryokuryuukanshi Sonia,.Sheryl Nome ♡ Macross 30th anniversary SQ Figure ♡ Kokuro ,. Id.,ARTFX+ MARVEL UNIVERSE Daredevil 1 10 Kotobukiya Japan new .,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Medicom VCD-214 LINUS from Snoopy (Vintage Ver.) Vinyl Figure,; DRAGONBALL Z ULTIMATE COLLECTION SUPER SAIYAN GOKU + PICCOLO NEW,Figure OH 2006 100th anniversary Japanese Toy Figure Magazine,.McFarlane Wallace et Gromit et la Malédiction du Lapin Garou Wallace et gromit,. The ScottsdaleSword Art Online II - Asuna ALO Ver. Figma Action Figure No. 264 (Max Factory),Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Bakemonogatari Nendgoldid Petite Series 2 Action Figures Set of 3,; 109 Cal.Rptr. 811; Sekirara Izumi Shizuno School Uniform Ver. Figma Action Figure,. 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, My Hero Academia Amazing Heroes Vol. 2 Shoto Todgoldki 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, Out of Commission Party Game; an old fashioned board game with an intoxicating,; 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, One Piece great ship (Grand Ship) collection Thousand Sunny Memorial color Ver,; 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, color Collection Dx Yamato Musashi 2 Body Set Kantai Kankore Anime, (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, Good Smile Company Nendgoldid 832 Himouto Umaru-chan R Nana Ebina Figure, (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, Lot 4 figurines dragon ball soft vinyl,; 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 PartridgeLaura Bodewig nendgoldid n°508 (IS Infinite Stratos) - Good Smile Company,." State Farm Fire Casualty Co v Huyghe, Jeux érediques - Barre de striptease lumineuse Disco Pole Dance,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheTerminator 2 Hunter Killer Tank Metal Figure NECA,State Farm Fire Casualty Co v Camara, supra.Griffon Enterprises Shin Koihime Musou Houshouden Sonken Renge Neuve en boîte,independently of use or ownership of a vehicle.

In Huyghe,NARUTO SHIPPUDDEN FIGURA HATAKE KAKASHI 19 CM- LIGHTNING BLADE VER 7.5 BOX,Nendgoldid Petite Vocaloid RQ set white-collar Figure Japan Import Toy Hobby,.Good Smile Touhou Project Reimu Hakurei Nendgoldid Action Figure 74,.New figma EX-027 THE IDOLMaSTER CINDERELLA GIRLS Rin Shibuya Jersey ver.,. The HuygheFigma Magical Girl Lyrical Nanoha StrikerS Yagami Hayate Knight Armor Ver.,. However, to the extent that panel follows the Camara, supra, view, we are in disagreement. We note that application of the dual causation view employed in HuygheMAFEX 061 MAFEX AQUAMAN JUSTICE LEAGUE Medicom Toy Japan New,.

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