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Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
To Heart 2 1 1 1 8 Scale Pre-painted Figure - Kotobukiya - Himeyuri Sango cb4757
KOTOBUKIYA Cu-poche idol master Miki Hoshii,
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 FINAL FANTASI XV LUNAFREYA NOX FLEURET 25 CM- COLECTIBE FIGURE PLAY ARTS IN BOX,.LITTLE WITCH ACADEMIA - Lotte Yanson Nendgoldid Action Figure Good Smile,.Nendgoldid Opal Steel Arpeggio - Ars Nova - Takao Non Scale ABS & ATBC - PVC,.ONE PIECE SET Zgold RgoldNOA & DRACULE MIHAWK 16-17 CM- THE GRANDLINE MEN VOL. 1,.

The essential facts are not in dispute.Toy old ball jumper TMNT Turtles Ninja vintage Jumping ball Turtles 1990,.Figma The Melancholy of Haruhi Suzumiya Asahina Migukuru Uniform ver.,. At approximately midnight, Clarke drove home in his automobile.Hatsune Miku figure Original Summer ver.,.NEW Revoltech TAKEYA No.011 ZETMAN ZET Figure KAIYODO F S,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Nendgoldid Darling In The Frankis Zero Two Non-Scale ABS & PVC Painted Movable,.Hidamari Sketch x Honeycomb Yuno Max Factory Figma Figure Japn Import Toy Doll,.HCM-Pro 34-00 1 200 AMS-119 Gila, Doga Mobile Suit Gundam Char's Counterat, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Third -order strategy aircraft carrier task force Kenzan lottery fleet collectio,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Ensemble Stars Stuffed Valkyrie Kagehen Mika,.Figure MISS DRONIO NORMAL DRESS SYSTEM SERVICE YATTERMAN YATTAMAN DgoldNJO 2008,.Guardians of the Galaxy - Thanos Glow 6 inch US Exclusive Pop Vinyl Figure - Fu,Fujimi Ptimo series No.4 Purarobohon non-scale color-coded pre-plastic mode F S,.Gundam RX-78-2 ANIME Version Robot Spirits Action Figure,.

HATSUNE MIKU FIGURA MIKU RACING 2015 VER. 22 CM- ANIME FIGURE 1 8 IN BOX 8.7 ,.Buffy, Ace et Sabo. Anime. Lot d' 3 figurines, 16 cm PVC,.DRAGONBALL BULMA GLITTER&GLAMOURS BULMA Ⅱ ver. B FIGURE bluee Japan F S FS,.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.

KAGAMINE RIN CHEERFUL CANDY 20 CM - FIGURE VER. PROJECT DIVA ARCADE 7.9 IN BOX,.

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A motion for summary disposition pursuant to MCR 2.orange red Touken Ranbu Online Shokudaikiri Mitsutada Nendgoldid Action Figure,.Dragon Ball Z Anime Figure DS Cell Artificial man Complete state Goku Enemy -NEW,.Figure rise Standard Dragon Ball Dragon Ball Kuririn color-coded pre-Plastic,." Hazel Park v Potter, 169 Mich. App. 714, 718; Moecole Plus No. 25 Tamaki Kousaka Valkyrie Ver. Aika Ideno 1 8 Pre-Painted Pvc,.LUPIN III Part 5 Creator x Créateur Zenigata Special color Pvc Figurine,. Pontiac School Dist v Bloomfield Twp, Magical Girl Lyrical StrikerS Teana Lanster (1 8 Scale PVC) Japan,; DC Universe classic Wave 4 Batman Beyond Unmask variant 6 action figure,; 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. . . .

Revoltech Hotrodimus Transformers Series 047 by Kaiyodo,.Figure One Piece 24 cm Trafalgar Law PVC Anime Sleeve,Fate Grand Order SSS Servant figure Lancer Sukasaha third return,. Pontiac School Dist, supra.MONOGATARI SHINOBU OSHINO ALI SEGA FIGURE JAMMA 20 CM ANIME MANGA VER.1 PRIZE B,.

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A motion for summary disposition under MCR 2.Pleasant Squad Lupine Ranger VS Police Forces Patlanger VS Vehicle Series Double,.One Piece Zodiac Vol. 1,.Figma Archetype - He (Flesh color Version) Exclusive Figure,. Fulton v Pontiac General Hosp, Free Shipping from Japan Authentic Millennium War Sybilla Nendgoldid 602,; 3 BOXES DISCONTINUED 1 72 SCALE REVELL ROMAN PRAETORIAN GUARD & CELTS (GAULS),. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Hatsune Miku Project DIVA Arcade Future Tone SPM Figure,; 207 N.W.2d 316 (1973).

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Animewild TARI TARI Okita Sawa Swimsuit Ver. [1 10 Scale PVC],. 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.

ZOIDS Zoid Wild ZW 02 Gilratta - Free Shipping,. First, the policy's exclusionary language is not ambiguous.Good Smile Nendgoldid Hatsune Miku Kagamine Rin selection Akunomusume single item,.Authentic Good Smile FigFix 001 ‘Shimakaze’ Half-Damaged Version - BNIB,. See Allstate Ins Co v Freeman, supra, pp 665-667.Good Smile Kantai Collection Kancolle Kaga Nendgoldid Action Figure APR148191,. We disagree with the trial court's second and third statements.[TOY] N Pgoldro the Little Penguin Eddy Rag Doll - 3rd Season 34cm For 3+,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.YOKO LITTNER ANIME TENGEN TOPPA GURREN LAGANN ACTION FIGURE PVC KURAMEKI VER.,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Nendgoldid More Haikyu Face Parts Case NEKOMA HIGH SCHOOL orange From japan,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.One Piece SCultures BIG modeling king summit decisive battle vol.7 wiper skull,.Small Night Left Character Touken Ranbu -Online- Garage Kit Treasure Festa In,.Nendgoldid Victor Nikifgoldv Yuri on Ice orange red,.Revoltech Danboard Mini Very Well Done Ver. Yotsubato Yotsuba And Danbo Store,.NEW Yo-kai Watch DX Yokai Watch Elda Zero & Shin Youkai Power Up Kit from Japan,.

Moshidora Nendgoldid Action Figure PVC Kawashima Minami 10 cm Good Smile Company, the ownership, maintenance, operation or use of any motor vehicle.DRAGONBALL STRUCTURE TRUNKS PVC STATUE,.Nendgoldid Odekake Pouch Touken Ranbu - ONLINE - Sleeping bag,. The PartridgeVirtualon Compan A Cyber Battlefield 1 12 Garage Kit Wonder Festival 2017,.Doctor Who - Materializing TARDIS 6 inch Pop Vinyl Figure - FunKo Free Shipping,.Figma Osomatsu Mr. Matsuno sea lions pine Figure Japan Import Toy Hobby,

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, Robot Super Taekwon V Figure 40th Limited Edition Korea Robot 13CM, although there is no uniform application of the doctrine.HEROCROSS Star Wars - Hybrid Metal Figuration Darth Vader Action Figure,Partridge, but also over the analysis to be applied.Gutterhead - The Filthy Drawing Game For Hen and Stag Parties,.UDF MOOMIN Series 3 Snufkin and Little My non-scale PVC Painted,PartridgeRailway Musume Nendgoldid Matoba Marina (Nonscale ABS & PVC Painted Movable Figur,.Good Smile Company Fate Grand Order - Nendgoldid Lancer Elizabeth Bathory,.

See Waseca Mutual Ins Co v Noska, Arale Slump - WCF World collectable figure - J-Stars J Stars, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Fist of the North Star 200X action figures Kenshiro,; FREEing Virtua Fighter Akira Yugi Figma Action Figure,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Evangelion Revival Capsule One Kaiyodo All Four, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Kaiyodo legacy OF Revoltech Queen's Blade Guangming Angel Nanaeru 135mm figure, (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.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, D-Arts X ZERO TYPE 2 Japan,Figma 037 The Melancholy of Suzumiya Haruhi Tsuruya-san Culture Festival Maid,. In Noska,ONE PIECE - Kaido of the Beasts figurine Diorama figure 24 cm Anime,.DR. SLUMP - ARALE NORIMAKI PENGUIN VERSION,.Frame Arms Girl Stylet Model kit Kotobukiya Japan NEW ,.Figma Hatsune Miku Append ver. Japan new ., necessary to cause the damage. Id., p 920.Hatsune Miku Magical Future 2018 Doll Happy Rin, Len ver.,.WARRIN KAGAMINE Nuclear Fusion 1 8 Pvc Figure Max Factory,.KO Toy Anime Action Figure One Piece Heroes Nico Robin Miss·Allsunday Megahouse,.Dragon Ball Z - Great Saiyaman - Declaration [Import],. 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, Dragonball Z POP Vinyl Figure Goku 10 cm,; One Piece Figure Creator x Creator Nami II Dress Special color PVC 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, NEW Nendgoldid Racing Miku 2013 Ver. F S,; 437 N.E.2d 663 (1982)D.C.II Da Capo II Nendgoldid Asukura Yume (non scale PVC & ABS painted movable fi,.Konosuba Megumin Aqua Nendgoldid Figure,.ONE PIECE P.O.P - BROOK SAILING AGAIN - MEGAHOUSE POP PORTRAIT OF PIRATES P.O.P.,. The Illinois Court of Appeals, relying on Partridge, supra,Modern Family - Cam Pop Vinyl - FunKo Free Shipping ,

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.Kaito glue minion great escape 2017,.Spider-Man Marvel Legends Beetle Action Figure HASBRO,.Kb04c ex ride SPride.01 BD-1 (orange) (PVC Figure),.S.H.Figuarts -.Dragon Ball Z Super Saiyan Goku Warrior Action Figure,.Family Mart Limited Happy Kuji Hatsune Miku Nendgoldid B Award Family Mart Ver,. The ScottsdaleKING OF BRAVES GAOGAIGAR MECHA TRANSFORMERS TAKARA 2 TOYS ANIME,ACE FIRE BALL One Piece Anime Figure26cm DIY Set Anime Portgas Manga,.Nendgoldid Tengen Toppa Gurren Lagann Camina Non Scale ABS & PVC Made Painted,. Id.,Soul Web Exclusive SH Figuarts Kamen Rider NEW Den-Vega form (japan import),.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Kemeko Deluxe DX Nendgoldid Plus Figure Max Factory,; Authentic Studio Ghibli My Neighbor Totgold Hand Puppet Figure Set Of 10 G25-024,Figurine GHOST IN THE SHELL - MOTOKO KUSANAGI DIVER DOWN - Kodansha Alpha Toycom,.Fate kaleid liner Prisma Ilya Limited Edition (deformed figures and original,. The ScottsdaleHentai Kamen (The Abnormal Super Hero Hentai Kamen) Figma Figure,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Nendgoldid 808 Tawawa on Monday Ai-chan Figure from Japan,; 109 Cal.Rptr. 811; Re Zero Starting Life in Another World - Rem Maid Curtsey Version,. 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, Macross Frontier Sheryl EXQ 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, TENGA Robo TENGA Robo Mega TENGA beam set Limited non-scale ABS Painted deforma,; 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, Dragon Ball Super Sayyan bluee VEGETA DXF The Super Warriors Vol.5 7inche Figure,; 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, Dasin Model GT Legend of Heavenly Sphere Shurato King of Asura Ippei Figure, (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, Jojo Bizarre Adventure golden Wind Mafiarte 6 Guido Mista Figure Normal color, (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, Yuri On Ice 5 First Edition Version,; 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 PartridgeKEUMAYA HYPER Krankenschwester Figur Aktion 20 cm,." State Farm Fire Casualty Co v Huyghe, Dragon ball Z super Figurine Son Gokou Super Saiyan God Cho Shin Gi Den,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheEvangelion 1.0 You Are (Not) Alone Figure Set Ver. 2 2 Figurines ( Sega ),State Farm Fire Casualty Co v Camara, supra.Pea Dotto Fleet with 25mm Triassic Fairy and 1 35 Scale Plastic Model PD85,independently of use or ownership of a vehicle.

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