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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.


Defendant Melinda Clarke appeals Star Wars Bobble-Head Stormtrooper and Boba Fett both with Chrome Base,.3pcs of lots 8 inch kaws OriginalFake Companion PVC Action figure Street Art Toy,.Boeing E-3 (AWACS) Sentry 1 200 Scale Diecast Metal Model by Amercom,.Kraken GID Variant - Designer Con Dunny Series DCon 3 Figure by Kidrobot New,.

The essential facts are not in dispute. Andro Melos soft vinyl doll-Andro Mars (new, 1991) Soft Vinyl (1546,.Roland V-Accordion FR-7 with lots of extras. Very lightly used.,. At approximately midnight, Clarke drove home in his automobile.Cast puzzle donut 4] [difficulty level,.Figura de colección Fariboles Johan y Pirluit el Rey con un Pitufo ROI (2017),. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Star Trek Klingon D5-Class Battle Cruiser Model with Magazine by Eaglemoss,.Andy Warhol Vinyl Silkscreen Green Ver. Figure Medicom Toy VCD JAPAN,.DUNE Betty Boop Red Dress Ver 5.1in Figure Sofubi Soft Vinyl Figure Japan 65, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Dora the Explorer & Friends Ballerina Brunette Styling Head Doll,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.X-MEN - whiteo Queen Retro Polystone Statue Bowen Designs,.WITTY WINGS 1 400 Boeing B737-800 TURKISH AIRLINES BORUSSIA DORTMUND ,.DC COMICS - Wonder Woman Red Son Premium Format Figure 1 4 Statue Sideshow,JoyGrow 40 PCS Kitchen Toys Cutting Toys Pretend Vegetables Fruits Play Food ...,.TOY BIZ MARVEL LEGENDS DR DOCTOR STRANGE SIGNED SAMPLE PredOTYPE AVENGERS,.

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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.Harley Quinn Arkham City Square Enix Play Arts Kai Action Figure No. 5 SEALED,.IDOLMASTER CINDERELLA GIRLS TOKONATSU SHIN SATO 1 8 PVC FIG,.Shoko Nakazawa T9G Aurora Glitter Byron TTE Exclusive Thailand Rare DCON Sofubi,." Hazel Park v Potter, 169 Mich. App. 714, 718; Design Your Own Fashion Briefcase - Arts & Crafts Creative Set - Latest Creative,.TINTIN MOULINSART HERGE 29665 Airbus A320 (1 25th) Tintin Airplane Number 24,. Pontiac School Dist v Bloomfield Twp, Peep Hole, Head in Hole Sider...other designs,; VAG 2 Otasuke Micromar Kaneko Yoohoi All 5 pic VinyL ARtiSt GaCHa Medicom Toy,; 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.Set Of 4 Sonic The Hedgehog Vinyl Figure; Jazwares, Toys R Us Exclusive,.DC Comics DC COMICS BISHOUJO STATUE Pretty Girl Power Girl 2nd free shipping,.Aurora Welt 60782 12-zoll-flopsie Muriel Scharlachreden Ara Papagei Stofftier,. Fulton v Pontiac General Hosp, Marvel DC 26 inch The Thing, 31inch Batman, 30 inch Superman Walmart exclusive,; AVIATION72 AV7221003 DH82A TIGER MOTH RAF TRAINER T-6818 1 72 SCALE D CAST MODEL,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Lot Of 16 Kidrobot Kozik Smoking Labbit Rabbit Mustache Various,; 207 N.W.2d 316 (1973).

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Sergey Safonov Moon Wanderers Winter Harvest Kluth super rare resin art toy 2011,. 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.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Collectible Figure Fariboles Raiarox Spirou Zantafio (2017),.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Melissa & Doug 10 Piece Wooden Vacuum Cleaner Hoover Toy Playset,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Mystery Mini DC Bombshells Specialty Series Case of 12 Funko,.Herpa 1 500 531108 Icelandair Boeing 757-200 80 Years of Aviation NEU OVP,.Super Powers Cyborg Pacipa Foreign Variant,.Kaws Small Lie Companion Grey MONO Limited Edition SOLD OUT,.Royal Selangor Marvel Collection Pewter Limited Edition Iron Man Figurine,.

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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, 1960's Vintage Comet Redi-Flight Jr. Rubber Powered Aero 480 MIB No. 6203 69, although there is no uniform application of the doctrine.Collectible Figure Fariboles The Little Prince and the pink - LPP (2016),Partridge, but also over the analysis to be applied.Transformers BUMBLE BEE Grey Skull Vinyl Hikari Sofubi Figure by FUNKO LE-1000,.White No.2 Void Pentultimate II Hollow 12-Sided Magic Cube Twist Puzzle By Mf8,PartridgeMegga Vinyl toy - Paintable and sandable ,.MARVEL - Avengers Age of Ultron - Vision 1 6 Action Figure 12 Hot Toys MMS296,.

See Waseca Mutual Ins Co v Noska, WW I PLANES DETAIL SETS N.°3 1 72 SCALE - KOMBO SET, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, DC Comics Pretty Girl Harley Quinn Figure Very Hard To Find free shipping rare,; Sands Alive Glow Create and Glow Set,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Tokdoki Captain Coco - 5 Figure, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Kidrobot God of War Series factory sealed cases of 24 vinyl mini series, (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, HANAYAMA Cast puzzle Cast Rabbi difficulty 5,1000toys SDCC Event Exclusive 1 12 Synthetic Human Test Body Action Figure MIB,. In Noska,EXOTIC WW I 1919 ERA DECAL SETS 1 72 SCALE - KOMBO SET,.Kidrobot x Adventure Time LADY RAINICORN 7 MEDIUM VINYL ART FIGURE unicorn,.Marvel Punisher Sideshow Comiquette Statue,.Comicave DC Comics Batman by Jim Lee Super Alloy 1 6 scale Figure, necessary to cause the damage. Id., p 920.ONE FULL CASE OF 24 CITY CRYPTID DUNNY VINYL MINI FIGURE SERIES KIDROBOT,.Kidrobot Bob's Burgers Grand Re-Opening 3 BRONCONIUS Vinyl Mini Figure 1 48 NEW,.Thor Avengers Assemble Statue Sideshow Collectibles figurine 1 5 (Marvel Comics),.Herpa Wings 1 500 Boeing 757-200 Delta Air Lines N608DA 532600 Modellairport500,. 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, Mattel DC Super Hero Girls Batgirl Utility Belt - CASE OF 24,; Die Antwoord Evil Boy Spooky ASEM Good Smile Zef Vinyl Figure Toy GLOW, (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, Security & Privacy Android Figurine - Google Internal Only - Collectible RARE,; 437 N.E.2d 663 (1982)Diamond Comic Distributors DC Collectibles Batman Arkham Asylum Harley Quinn,.1 500 Herpa KLM Airbus A330-200 PH-AOM Piazza San Marco Venezia 530552,.Doraemon Cam Cam Cat Food Cat Figure 1 6 Plan Limited Medicom Toy,. The Illinois Court of Appeals, relying on Partridge, supra,Violence Toy Death Car Exterminator One-off 1 point Soft Vinyl From 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.Mezco SDCC 2018 Exclusive Marvel Punisher Special Ops Edition ONE 12 Comic Con,.KIDROBOT x THE SIMPSONS - 6 KANG AND CHASE KODOS SET - RARE - COMPLETE,.Ec 135 Heeresflieger German Army Aviation Kit REVELL 1 32 RV04982,.Eduard Accessories P-40F gun bays for Trumpeter in 1 32,.MAKE YOUR OWN SHRINKING CRAFT BRAND NEW SEALED FREE P&P,. The ScottsdaleCriminal Macabre Cal McDonald Bust by Dark Horse,SKULL VERSION JINMENKEN GREY EDITION VINYL FIGURE AWESOME TOYS SOFUBI SOFVI F S,.ENYA 180X GLO ENGINE RING MODEL NIB,. Id.,Ambulance Rescue Vehicle Doctors Set - WISHTIME Pretend Play Toy Bump and Go...,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Fisher Price Classics - Tape Recorder x4,; Squadt GERM S004 [BYO] Jamungo Ferg RARE SOLD OUT,Luminations Pyramid Brain Game 1989 Vintage Works Perfect Batteries Included,.Vampirella Tooned Up Sexy Statue Sideshow Collectibles Electric Tiki limited 750,. The ScottsdaleSealed Kidrobot Christmas Exclusive Burglarcille Chase Saner Burglars Dunny,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Oskar Krystian's Cube (rare hand made Twisty Puzzle aka Cube 3x3 and Pyraminx),; 109 Cal.Rptr. 811; Star Wars Medicom VCD Clone Trooper,. 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, Guumon Mixed Parts Daigomi kaiju sofubi Japan soft vinyl toy,; 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, CORGI 1 144 BOEING B-29 'HAWG WILD' AA31802,; 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, ELC Tea and Toaster Set with Light and Sound Pretend Play Kids Birthday Gift,; 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, Mezco One 12 Popeye Action Figure MINT NEW IN 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, Vamou x Uamou - Vinyl Artist Gacha Series 3 - Single 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, ThinkMax Money Maze Puzzle Box, Puzzle Money Holder Gift Box for Kids and,; 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 Partridge 45 KIDROBOT CLASSIC JOKER 5 DUNNY FIGURE,." State Farm Fire Casualty Co v Huyghe, Hebru Brantley Mellow Yellow Flyboy & Lil Momma Fly Girl Volt color Set,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheNew Hanayama Cast Puzzle Premium Series Chess Puzzle Pawn,State Farm Fire Casualty Co v Camara, supra.Avengers 2 Age of Ultron - Hulk Maquette - Sideshow Collectibles Free Shipping ,independently of use or ownership of a vehicle.

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For example, in Partridge,STATUA MARVEL IRON MAN WALL ORIGINALE EDIZIONE LIMITATA 745 2000,. In Jorgensen, supra,Loyal Subjects SDCC Crystal Green Ranger Toy Tokyo Mighty Morphin Power Rangers,. Therefore, the non-auto-related negligence had been established.Chad Valley Animal Skittles Danger Of A Heavy Ball And Skittles Your Baby NEW_UK,. The Illinois court in U S Fidelity Guarantee, supra,GEMINI JETS 1 400 EVERGREEN INTERNATIONAL BOEING 747, GJEIA061,. That is the same situation in this case.Ravensburger AQUA DOODLE DISCOVER - VARIOUS,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Secret wars iron man CAS 80+ AFA 1984,. Detroit Edison, supra.

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