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.
Defendant Melinda Clarke appeals TERRA FORMARS - Michelle K. Davis Nendgoldid Action Figure,.TOTgold - My Nachbar Totgold Nase-chara Neko Bus Puzzle 7pcs Ghibli Miyazaki,.Brand New Nendgoldid Mega Man No.556,.FATE STAY NIGHT SABER LILY 18 CM EXTRA SWIMSUIT VER 1 6 COMPLETE-WITH BOX 7 ,.
The essential facts are not in dispute.Shikigami no Shiro Niigi G. bluee Figure 1 8 Good Smile,.Max Factory figma Panther Action Figure Persona 5 PS4,. At approximately midnight, Clarke drove home in his automobile.DRAGON BALL Z FUNKO POP GREAT VEGETA VINYL FIGURE 18 CM IN BOX,.STREET FIGHTER FIGURA KEN LUZ Y SONIDO 22 CM- THE NEW CHALLENGUER- KEN BOX,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.DIGIMON - Hikari Yagami & Tailmon 1 10 Pvc Figure G.E.M. Megahouse,.Happy lottery Hatsune Miku 2013 Summer B Award Nendgoldid Rin FamilyMart 2013,.Good Smile Puella Magi Madoka Magica Madoka Kaname Nendgoldid (Maiko Version), Brian Clarke. Brian was found in the hallway outside one of the bedrooms.
Final Fantasy Plüsch-puppe Tonberry Square Enix Offiziell Goods Neu Mit,.S.H. Figuarts Another Agito JP,.Figma Osomatsu Matsuno Isamu nonscale ABS & PVC painted movable figure,.NENDgoldID MORE - Halloween Set schlecht Ver. Good Smile Company,.
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Dragon's Crown Amazon 1 7 PVC Figure Megahouse ORIGINAL Japan,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.How to Make Garage Kit Book Moe Garage Kit by Full Scratch,.KEWPIE PVC doll very good condition 14 cm high,.Hyper Fate Collection Fate stay night Archer action figure ( 1 8 scale PVC ),Nendgoldid 985 JoJos Bizarre Adventure Jotaro Kujo Figure New Japan new.,.ONE PIECE FIGURE MONKEY D. LUFFY 18 CM MONKEY D.LUFFY AS MONKEY FIGUARTS ZERO,.
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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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NEW figma 311 Arpeggio of bluee Steel Ars Nova HARUNA Action Figure Max Factory,.Kb04c Good Smile Steins Gate Kurisu Makise Figma Action Figure,.
A motion for summary disposition pursuant to MCR 2.Naruto - Shonen jump - 3 characters - Shino, Neji, Haku- BNISB,.Gundam MG 1 100 RX-78-2 Gundam Ver.2.0 plastic model,.SONNY ANGEL - SET 12 FIGURAS MARINE SERIES 12 FIGURES SET 8cm (REPLICA),." Hazel Park v Potter, 169 Mich. App. 714, 718; HAPPY WELL ANICAROBOT 3 IN 1 TRANSFORMERS HUMMER HX 1 24 YELLOW,.Nendgoldid 020 Binchou-tan Figure Good Smile Company,. Pontiac School Dist v Bloomfield Twp, Dragon Ball Super Sayyan bluee VEGETA DXF The Super Warriors Vol.5 7inche Figure,; Anime Natsume Yuujinchou Nyanko Sensei Madara & Natsume Takashi 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. . . .
MAGICAL LYRICAL NANOHA - Fate Testarossa Blaze Form Ver. Figma Action Figure,.Good Smile Company Sega Project Hatsune Miku Nendgoldid Co-De Action Figure,DC Icons Lex Luthor Forever Evil Action Figure DC DIRECT,. Pontiac School Dist, supra. Hit the Bum - cheeky electronic game,.
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A motion for summary disposition under MCR 2.Rina Ikuta Morning Musume 18 Figure Stand Keychain Blooming In The Sun Bathed,.Nendgoldid Girls & Panzer West Residential Non Scale ABS & PVC Painted Movable Fi,.Yamato Star Blazers 2202 Mecha Collection U. N.c. F. Andromeda-Clase Set Modelo,. Fulton v Pontiac General Hosp, Figma THE IDOLM @ STER Hoshii Miki Non Scale ABS & PVC Painted Movable Figure,; [USED] Kamen Rider Ex-Aid DX Mighty Bredhers XX Gashat,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Berserk Figurine Guts Mercenary Tv Version,; 207 N.W.2d 316 (1973).
6pcs Dragon Ball Z Action Figure 15 cm Super Saiyan,. 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.
PEORTH LIMITED WHITE VERSION KOSUKE FUJISHIMA'S AH, MY GODDESS FIGURE HOBBY BASE,
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.
Ghostbusters - Winston 4 Metals Wave 1 - Jada Toys Free Shipping ,. First, the policy's exclusionary language is not ambiguous.Mechanical Chain Base R Renewal Ver. Type B Kotobukiya Model Kit MB44 USA,.Figuarts Zero Tony Tony Chopper,. See Allstate Ins Co v Freeman, supra, pp 665-667.Kotobukiya Cu-poche Extra Suit Boy (Navy) Figure from Japan,. We disagree with the trial court's second and third statements.Mint Osamu Tezuka Unico Kaiyodo Figure Showa Cartoon Bag Goods,.
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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Go nagai robot collection goldorak figurine n112 cleo figurine proche du neuf,.
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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Dragonball Ball Z GT DBZ Super Battle Collection Figure Vol.3 Piccolo Daimaoh,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Revoltech EVANGELION EVOLUTION Mark.09 Approximately 140 mm EV-004,.The Melancholy of Haruhi Suzumiya Haruhi Summer Clothing & Adventure Asahina Mi,.Revoltech No.27 Kuro Figure Japan Doll Toy Japanese Hobby,.SONNY ANGEL - SET 12 FIGURAS MARINE SERIES 12 FIGURES SET 8cm (REPLICA),.Mortal Kombat X - Liu Kang Action Figure - FunKo Free Shipping ,.
McFarlane Wallace et Gromit et la Malédiction du Lapin Garou Lady Totting Neuf, the ownership, maintenance, operation or use of any motor vehicle.ROBOT soul Mobile Suit Z Gundam [SIDE MS] Gundam Mk-II AEUG specification a,.ONE PIECE - FIGURA PVC BIG MOM - CHARLOTTE BIG MOM YONKO- FIGURE NEW,. The PartridgeROBOT soul [SIDE MS] Gundam AGE-1 Sparrow,.ONE PIECE Film gold Grand Ship Collection Thousand Sunny Premiering Model Kit,.Dragon Ball Super Saiyan 3 Goku Sculptures Big Budoukai 6 Volume 7.8 inch Figure,
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 Super Figure Moveable Jojo'S Bizarre Adventure Part Iii Mohamed Avudul F S, although there is no uniform application of the doctrine.Nendgoldid IS [Infinite Stratos] Fan Rinin Figure Japan Import Toy Hobby,Partridge, but also over the analysis to be applied.SKYTUBE FIGURE YURI AKASAKA16 CM MISAKI KUREHITO OFFICE LADY VER. 1 6 BOX 6.3 ,.Figfix School Idol Festival Rin Hoshizora Ver. Pre-painted Pvc Figure,PartridgeMATTEL 13” YU-GI-OH SLIFER THE SKY DRAGON FIGURE 1996,.Olive & Benji 3D Collection Ted Carter Statuette Figurine,.
See Waseca Mutual Ins Co v Noska, All Six Set Putitto Genghis Khan Gin-Kun Loft Limited, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Anime Blind Box Please Twins PVC Figures (Lot of 11),; Kaiyodo legacy OF Revoltech Queen's Blade Guangming Angel Nanaeru 135mm figure,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Megahouse Gintama Sakata Kintoki GEM PVC Figure, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Dragon Ball Z Resurrection F Nappa Raditz Action Figure Collectible Model Toy, (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, ONE PIECE P.O.P pop MEGAHOUSE tony tony CHOPPERMAN CHOPPER blueE PROMO,Yuigahama Yui anime figure PVC figure doll dolls action collection toy new,. In Noska,NEW figma SP-022 Kamen Rider Dragon Knight Kamen Rider Torque Figure F S,.Dark Horn 1 Type Zoids Collection Battle Series Mini Figure,.Doctor Strange Collar Colgante Tiempo De Piedra Ojo de Agamotto LED Luz Y Caja,.14x Sets TROPICAL BEER PONG Pineapple Vs Watermelon Pingpong Balls Summer Games, necessary to cause the damage. Id., p 920.FATE STAY NIGHT SABER LILY 16 CM - FIGURE LINGERIE STYLE blueE VER 1 8 BOX 6 ,.MACROSS MILLA TYPE SUPER GERWALK ACTION FIGURE MADE BY ARII. NUMBER 12,.Nendgoldid Pouch Sleeping Bag MONOYOSHI SADAMUNE orange red NEW from Japan F S,.LEGO SCALA 1979 I GIOIELLI LEGO VINTAGE TOYS 308 309 310 311 312 313,. Id., p 923.
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In Jorgensen v Auto-Owners Ins Co, THE ECCENTRIC FAMILY 2 MINI COLLECTIBLE FIGURES 5-SET GOOD SMILE COMPANY,Unity Marriage Futari bride - Unity Yuno (1 8 Scale PVC) Japan import,.1 72 20mm painted Napoleonic Prussian Silesian landwehr,.Shazam - Darla Pop Vinyl Figure - FunKo Free Shipping ,.Bisounours - Kenner - Miniature - Groscopain partage sa glace (blister rectangul,.PREORDER LUGLIO 2019 DIAMOND SELECT MARVEL COMIC GALLERY PVC THOR STATUE,.Good Smile Touhou Project Yuyuko Saigyouji Nendgoldid Action Figure,.One Piece GLITTER & GLAMOURS ONE PIECE FILM gold NAMI MOVIE STYLE Nami anime fig,. The parties Kaiyodo LR-007 Fist of the North Star Exploding ZEED Gang Figure 155mm F S 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, USED figma 061 K-ON Azusa Nakano Figure Max Factory F S,; Airfix COWBOYS 1 32 Scale 51465-1, 22 Pieces (Complete) - 1970s Vintage, (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, KEUMAYA FINAL HYPER MURSE COMMANDER ERIKA ANIME FIGURE SEXY 25 CM- 10 IN BOX,; 437 N.E.2d 663 (1982)Figurine Asuna Elfe Special Furyu Manga,.Furyu Fullmetal alchemist FULLMETAL ALCHEMIST SF Roy Mustang 7.9 inch Figure,.Good Smile Company Nendgoldid Masaki Amamiya,. The Illinois Court of Appeals, relying on Partridge, supra,Star Wars The Force Awakens S.H. Figuarts Kylo Ren 6 Japan,
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.NEW figma 002 The Melancholy of Haruhi Suzumiya Haruhi School Uniform ver.Figure,.Nendgoldid Hatsune Miku GT Project Racing Miku 2018 Ver. Good Smile Company NEW,.Figure orange red Haikyu Shoyo Hinata Figma Action Figure Japan Import SB,.SLAM DUNK AKAGI TAKENORI 24 CM FIGURINE N.4 BOÎTE 9.5 ,.Cu-poche Extra Animal Parka Set White Cat Figure Accessories Kotobu From japan,. The ScottsdaleFuryu 6.7 Cardcaptor Sakura Sakura Kinomoto Special Figure Series Cheerful Pi,DRAGON BALL Z FIGURE SON GOKU 30 CM-MASTER STAR PIECE SON GOKOU ULTRA INSTINT,.Genji Sumimura Morning Musume 18 Figure Stand Key Holder 2018 Winter Hello,. Id.,DRAGON QUEST PLAY ARTS ACTION FIGURE YANGUS THE JOURNEY OF THE CURSED KING,.
The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Hey Arnold - Gerald Berry Pop Vinyl - FunKo Free Shipping ,; Dragon Ball Z Anime Figure DS Cell Artificial man Complete state Goku Enemy -NEW,ZOIDS Evo DRIVE ZED-4 Dark Horn F S,.One Piece DXF MANHOOD2 Monkey · D · Luffy anime Figures Collectibles prize,. The ScottsdaleSuperbad FUNKO POP MOVIES Fogell McLovin,Partridge but its application as well:
In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, DRAGON BALL Z esculturas Warriors of the World 1 Son Goku Super Saiyan Pvc,; 109 Cal.Rptr. 811; Figma 106 Strike Witches Lynette Bishop Figure Max Factory NEW from Japan,. 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, Hidamari Sketch x Honeycomb Yuno Max Factory Figma Figure Japn Import Toy Doll,; 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, Nendgoldid 778 Kantai Collection -KanColle- Mutsuki Kai-II Figure,; 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 Grandline Men One Piece Film Z Vol. 1 DXF Figure-6 Usopp,; 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, Animewild - Akane Isshiki (1 10 Scale PVC Figure) Vivid Red operations, (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, Aoshima Bunka Kyozai Fleet Kokushon No. 5 Destroyer Island island style 1 700, (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, ONE PIECE FIGURA NAMI SWIMMING SUIT 15 CM ANIME FIGURE CREATOR X CREATOR 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 PartridgeGUNDAM OPERATION RGM 79 GM TOYBOOK 1ST COLLECTION MIB,." State Farm Fire Casualty Co v Huyghe, VOCALOID - Rin Nendgoldid Kagamine Figura De Acción Good Smile Company,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheZOIDS REDLER DRAGON TYPE 1 72 SCALE EZ-005,State Farm Fire Casualty Co v Camara, supra.Good Smile Detective Conan Toru Amuro 834 Nendgoldid Action Figure,independently of use or ownership of a vehicle.
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For example, in Partridge,Rin Shibuya IDOL M@STER Jersey ver. Max Factory Action Figure Figma EX027,. In Jorgensen, supra,Little Genie Weekend In Bed Game Kit,. Therefore, the non-auto-related negligence had been established.Max Factory Trading Figure Bioboosted Guyver two ZX-Tole & Guyout Gashapon Lot,. The Illinois court in U S Fidelity Guarantee, supra,Figma 149 Strike Witches Eila Ilmatar Juutilainen Figure Max Factory,. That is the same situation in this case.GREEN LANTERN CLASSIC COSTUME ARTFX+ ST,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.FRAUREIN Revoltech SP No.2 Melancholy of Haruhi Suzumiya Yuki Nagato Witch JP,. Detroit Edison, supra.
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