Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
Pokemon Center Original Plush Dodoites,
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.


Defendant Melinda Clarke appeals Beaver CASTOR Nutria 41 cm cm Plush toy by Kuscheltiere.biz,.WALMART WHITE GREY WOLLY SHEEP WOOLIE LAMB SOFT STANDING PLUSH STUFFED ANIMAL,.B25062 W.Britain German Volksgrenadier in Parka Running K-98 No.1 WW11,.Classic Marvel Figurine Collection HULK Special edition-new EAGLEMOSS 2016,.

The essential facts are not in dispute.VINTAGE KUDDLE ME TOYS KELLYTOY BABY CHRISTMAS PUPPY DOG STUFFED ANIMAL PLUSH,. FIVE NIGHTS AT FREDDY'S FREDDY 16-INCH PLUSH ,. At approximately midnight, Clarke drove home in his automobile.Keel Toys 50 cm Labrador,.BRITAINS 17729 FRENCH KNIGHTS JOHN COUNT OF ROUCY + LORD JACQUES TOY SOLDIER SET,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Sigikid Sigikid38808 Trüffel Rüffel, BeastsTown Soft Toy-20 x 24 x 35cms, Multi,.BRITAINS SOLDIERS 27026 - Mahdist Wounded,.Mid Century Modern Red Glass Candy Dish. In Excellent Condition. One Owner., Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Chosun Plush White Teddy Bear RARE Sample Stuffed Animal Toy 12 Tan Paws 96702,.W.BRITAINS LIMITED EDITION Royal Scots Dragoon Guards Set 5290,.LSI game Dragon Ball Z game watch retro F S JAPAN,.Red5 My Arcade GameStation Wireless Console with 300 Retro Games,.Mushable Pink Pig Jay At Play Mushabelly Microbead PILLOW Plush Soft,.

Eaglemoss DC Chess Collection Issue 34 Wonder Woman Boxed,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Super Mario Mario 10 Inch Soft toy,.Squirrel HAMMY laufend 18 cm Plush toy by Kuscheltiere.biz,.29cm Marvel Toys the Avengers 3 INFINITY WAR Thanos Action Figures TITAN HERO,Marvel Avengers Titan Hero Tech Captain America Electronic Sound Figures Kid Toy,.BRITAINS 00161 World War I British Infantry BOXED,.

MARVEL UNIVERSE 3.75 TOXIC BLAST VENOM FIGURE,.BRITAINS LTD EDITION 40188. THE KING'S TROOP ROYAL HORSE ARTILLERY BOXED,.Marvel Universe Vision 3.75” Action Figure Legends Infinite,.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.


Jellycat Strawberry Bashful Bunny Rabbit Plush Soft Toy Comforter Pink Baby,. We agree in part.

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A motion for summary disposition pursuant to MCR 2.Huge Giant 110cm Polar Bear Cuddly Soft Toy by Keel Toys - Amazing Gift Idea,.Miss oh Border Terrier Stuffed Plush Soft Toy Dog 7045cm Stofftier realistic,.Peluche Bradipo 25 cm Realistico Hansa PS 10585,." Hazel Park v Potter, 169 Mich. App. 714, 718; Marvel Legends Dr. Doom Fantastic Four Action Figure 6 Toy Biz loose,.2 x vintage 1971 britains deetail medieval knights,. Pontiac School Dist v Bloomfield Twp, Spawn Special Limited Edition Todd McFarlane Toys - Action Figure Mod. Variant,; Fox QUANTO Red sitting 28 cm Plush toy by Kuscheltiere.biz,; 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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FURBY 2013 in perfect condition de marche A 6119 4343. ASST,.

A motion for summary disposition under MCR 2.POKEMON SNORLAX SOFT TOY LARGE 30 CM plush 143 Kabigon Ronflex Relaxo munchlax,.Ms. Pac-Man Double Dragon Bundle - Plug N Play TV Arcade Video Game NEW ,.Super JUMBO LARGE BEAR approx 52 IN Best Made Toys RARE HARD TO FIND,. Fulton v Pontiac General Hosp, Lcd game Q Q Treasure island game watch Publicitaire offert par O'kay,; B25031 W.Britain U.S. Airborne Infantry Overcoat Winter 1944-45 1 World War II,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, BRIO 33209 Rail & Road Travel Set - Railway Sets Age 3-5 years 33 pcs,; 207 N.W.2d 316 (1973).

BRITAINS 49021 BRITISH 13TH HUSSARS FOOT TROOPER METAL TOY SOLDIER FIGURE,. 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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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.

Used Teddy Bear Replica 1907 Teddy Bear World limited 2007 Steiff Stuffed Toy,. First, the policy's exclusionary language is not ambiguous.Fisher Price Liitle People TALKING BATMOBILE & BATMAN Figure, RARE TOY, CUTE ,.KOSEN Made in Germany NEW Australian Koala Bear PLUSH TOY,. See Allstate Ins Co v Freeman, supra, pp 665-667.Marvel Legends PETER PARKER SPIDERMAN Space Venom BAF Loose,. We disagree with the trial court's second and third statements.Britains American Civil War Series 17111 Confederate Command Set 57th Virginia,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Lcd game Ludotronic Combat de brousse 1982 game watch,.


The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Avengers Infinity War Iron Man Iironman Marvel Comics 2018 Action Figure Toy for,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Large White Horse With Sound Standing Kids Girls Toys Christmas Present Gift New,.Five Nights at Freddy's slippers Soft toy cosplay Fazbear Foxy plush 4 5,.Brio Red Lola Battery Locomotive, Train, Accessory for Wooden Railway, Rail, Toy,.1998 McFarlane Manga Samurai Spawn Series 10 Action Figure 8 MOC 787926111361,.Interprasent Germany Sitting Monkey Plush No ID 23 CM,.

Large Jumbo 93 Teddy Bear bluee Plush Stuffed Animal Soft Toys doll birthdaygift, the ownership, maintenance, operation or use of any motor vehicle.NIB Marvel Legends Mysterio with Lizard BAF left leg Spider-Man Wave,.Britains toy soldiers boxed 41111 Royal Scots Greys,. The PartridgeAlive Animal Simulation Horse Plush Toy Emulational Stuffed Pillow Gift 13060cm,.Trudi 22877 50 cm Labrador Joe Soft Toy,.New Ringling Bredhers Plush Elephant Mom & Baby BARNUM & BAILEY 16 Feld Ent E5,

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, Promo 20 Plush Dogs - Assorted. - CASE OF 72, although there is no uniform application of the doctrine.Marvel Legends 6 Inch Archangel Loose Complete NO BAF PIECE,Partridge, but also over the analysis to be applied.Sigikid Sigikid38692 28 x 26 x 13 cm Patchwork Sweety Kangaroo Toy,.Marvel Legends Series Morbius Quasar Rogue Hydro-Man 3.75 Figures Hasbro,PartridgeGuinea Pig collectable plush soft toy - Kosen Kösen - 7180 - 19cm,.VINTAGE 1999 ORIGINAL INTERACTIVE ELECTRONIC GREY & PINK SPOTTED FURBY TOY WORKS,.

See Waseca Mutual Ins Co v Noska, Glitter Bear Mighty Star Plush 18 24K Polar Puff, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Hulk Classic Abomination 6” 15cm Scale Loose Action Figure,; Marvel Avengers Titan Hero Series Power FX 30 cms Iron Man,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Limited Quantity Girl's Day Rilakkuma Hinamatsuri Plush Doll Set, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Vintage Screen Tennis Game Battery Operated 156004, (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, Final Fantasy XIV Baby Moss Plush Doll,MINIREPLICAS 1 32 FORD PUMA MONTECARLO DUVAL 2002- BUILDING KIT RESIN,. In Noska,World Wildlife Fund RHINO Plush 1985 Korea Grey Stuffed Animal Rhinoceros 15 ,.NEW - CALEB - Cute and Cuddly Teddy Bear - Gift Present Xmas Birthday,.AMAZING  Imaginex  Batboy Extreme Stands over Two foot Tall extending,.Trudi 24 cm Rabbit Plush Toy (White), necessary to cause the damage. Id., p 920.Marvel Legends 6 inch Action Figure Sauron Wave - Bishop - NEW,.Les Schtroumpfs - Schleich - 40503 Schtroumpfiades lanceur de disque (neuf en bo,.ToyBiz - Spider-Man Classic Clashes - Spider-Man (vs Venom) Action Figure,.DC Comics Superman Retro Style Action Figures Series 1 Supergirl by FTC,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, MARVEL LEGENDS LOKI onslaught baf toy biz civil universe hasbro THOR stan lee,DC Batman The Animated Series Robin Sealed New Action Figure,.HANSA - Koala, Mama 3523,.DC Universe Classics Wave __STARGIRL 6 inch action figure_MIP_New & Unopened,.VINTAGE 1986 PLAYSKOOL GRANDMAS MARSHMALLOW BABIES STUFFED ANIMAL PLUSH TOY DOLL,.BRITAINS 8671 CIRCUS TWO EQUESTRIENNE HORSES + RIDERS METAL CIVILIAN FIGURE SET,.3 Figurines Spiderman Articulés Neuves,.MONEY & BOMB CASIO ELECTRONIC GAME & WATCH LCD CG-20 Retro Japan,. The parties Vintage Collection Of Random Farm And Zoo Lead Animals,.

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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, CONTE COLLECTIBLES ZULU 013. 24th FOOT STANDING FIRING.,; Marvel Legends 6 Inch Vintage Retro Classic Scarlet Spider-Man Loose Complete, (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, 1984 RARE Red Elektronika Nu Pogodi Wolf Eggs Game and Watch Handheld USSR,; 437 N.E.2d 663 (1982)BRITAINS 60007 PETTICOATS SARAH IN WALKING SUIT METAL CIVILIAN FIGURE,.Star Wars Plush Yoda One Size,.NEW RARE HIRO LCD GAME KUNEKUNECCHO Kune Kunet-chyo JAPAN KOTO GUMPEY,. The Illinois Court of Appeals, relying on Partridge, supra,Ty Beanie Boos Waddles Penguin 16 Plush, Large,

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.ROMAT RU Sinestro Corps Yellow Lantern DC UNIVERSE CLASSICS SDCC Exclusive,.Trading Chun Corre Small Sword Ranbu - Hanamaru - BOX Item 1 BOX = 16 pieces,.BRITAINS SOLDIERS WW1 23071 - 1916-17 British Infantry Standing Smoking,.Green Lantern Hal Jordan Sinestro Pint Sized Heroes Exclusive Figure Set Funko,.Gakken Game Watch K.O.Boxing Voice command Retro Rare Game Made in Japan,. The ScottsdaleMarvel Legends Avengers Endgame EBONY MAW Armored Thanos BAF In Hand,Marvel Diamond Select Winter Soldier Action Figure Special Collector Edition ,.Get Ready Kids - Plushpups Marionetas de Mano Juego de 10,. Id.,MARVEL SUPER HERO SQUAD IRON MAN DANGER OF DREADKNIGHT ZHANG TONG STEALTH ARMOR,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Dr. Slump Arale chan HOYOYO BOMBER GAME WATCH LCD LSI Popy vintage Japan used,; Hansa Sitting Wolf 4291 Plush Soft Toy Sold by Lincrafts Established 1993,WWF Plush golden Eagle, 15170027, 23 cm,.BRITAINS 50063C COLLECTORS CLUB BRITISH 44TH REGIMENT STANDING DEFENDING,. The ScottsdaleMARVEL LEGENDS FIRST APPEARANCE IRON MAN,NEW AND MINT IN BOX.,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, GIANT PINK UNICORN PLUSH GIFT Big Stuffed Animal Large Huge Valentines Day NWT,; 109 Cal.Rptr. 811; Hasbro B0443EU4 - Avengers Titan Hero Figura Hulk, green de Acción, 30Cm Tamaño,. 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, Stitch peluche 50 cm Charmander Pikachu Eeve Totgold Anime,; 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, First 1st Appearance Series 2 - Green Lantern Collector Action 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, Marvel Spider-man Homecoming MARVEL'S ELECTRONIC 15 SPIDER-MAN FACTORY SEALED ,; 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, Saitek Pro Bridge 310 Hand Held Electronic Game Set NEW OPEN BOX, (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, GI JOE RISE OF COBRA Preview MARS Troopers (Exclusive) BRAND NEW, (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, Trudi 26614 Plush, Multicolord, 39 cm,; 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 PartridgeNECA ASSASSINS CREED REVELATIONS figure EZIO,." State Farm Fire Casualty Co v Huyghe, Used Teddy Bear Winnie the Pooh USA limited 2018 Steiff Plush Doll From Japan,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheMARVEL COMICS THE AVENGERS SKY CYCLE VEHICLE UNITED THEY STAND NEW BOXED,State Farm Fire Casualty Co v Camara, supra.Plug and play tv games,independently of use or ownership of a vehicle.

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For example, in Partridge,NICI Pony Poonita Soft Toy 35cm,. In Jorgensen, supra,BRITAINS 20141 90TH ( PERTHSHIRE VOLUNTEERS ) CORPORAL GRAHAM,. Therefore, the non-auto-related negligence had been established.IMAGINEXT SERIES 2 COMPLETE SET OF ALL SIX FIGURES,. The Illinois court in U S Fidelity Guarantee, supra,Lcd game Ludotronic Naufragé game watch de 1983. Complet avec Cale et Piles.,. That is the same situation in this case.Batman Justice League 7 Figure Toy & Coaster,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Käthe Kruse 74860 In the Garden Changing Comforter Butterfly,. Detroit Edison, supra.

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