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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 MARVEL LEGENDS 1ST APPEARANCE GREY HULK BAF GALACTUS SERIES NEW TOY BIZ,.DC Universe Classic 6 Inch Action Figure Club Infinite Earths Series - Fire,.New Funko Marvel DEADPOOL Japanese Vinyl Limited Edition ,.DC Theatrical Big-FIGS Justice League 20 Wonder Woman Action Figure,.

The essential facts are not in dispute.Crazy Toys Batman v Superman Batman Armored Action Figure Collectible Model Toy,.DC Comics Batman Missions Missile Launcher Batmobile Toy Vehicle NEW,. At approximately midnight, Clarke drove home in his automobile.MOTU Mini Statue Rio Blast Neca 7 inches tall Staction Masters of the Universe,.Supreme Leader Snoke [Glow-in-Dark] (2017 Summer Con Exclusive) Funko Sale,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Mattel DC Comics Multiverse The Flash TV Action Figure,.SCHTROUMPF SMURF SCHLUMPF SERIE COMPLETE 6 HARDEE'S RESTAURANTS APPLAUSE BPZ,.Marvel Captain America Civil - Ant-Man S.H.Figuarts SHF KO Action Figure Statue, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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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 2.13pcs Playskool Marvel Super Hero Adventures Star Lord Drax bluee ELECTRO Thor,.SUPERGIRL Action Figure Doll - Mattel DC Super Hero Girls 12 Inch,.Lot of 5 loose McFarlane amc twd TV figure The walking dead SHOW zombies,." Hazel Park v Potter, 169 Mich. App. 714, 718; DC Chess Collection NoTwo - Facel With Magazine Batman DC Comics Eaglemoss,.DC SUPER HERO GIRLS JUMP INTO ACTION WITH EXCLUSIVE BAT GIRL FIGURE (NIB),. Pontiac School Dist v Bloomfield Twp, JUDGE ANDERSON (PSI DIVISION) 6 ACTION FIGURE from 2000AD'S JUDGE DREDD,; X-Men Ruby Quartz Armor Cyclops Action Figure (ToyBiz, 2005),; 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.Marvel Legends 3.75 Spider-Man 2009 Armored black Figure Lot,.golden Soldier 76 Blizzard Exclusive 2017 Official Merchandise New Overwatch,.Mego 8 MIB 1974 WGSH Super Knights King Arthur,. Fulton v Pontiac General Hosp, Marvel Select Storm X-Men Figurine Diamond,; BATMAN BATIMOVILE BOOTLEG COLLECTION FIGURE VINTAGE 80'S RARE,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Play Asterix - Cleopatra () complete,; 207 N.W.2d 316 (1973).

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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.One Dc Super Hero Girl Action Figure - Girls 6inch 15cm New Wonder Woman,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Supergirl (Supergirl TV) ArtFX+ Statue,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.MARVEL LEGENDS HYDRA soldier Set Of 2 ACTION FIGURES LOOSE Complete HASBRO,.BATMAN BEYOND BRUCE WAYNE BUST,.Marvel Legends CROSSBONES figure (Hasbro, Ares Series, Walmart Exclusive, New),.Radio Controlled Batmobile by matsushird,.Marvel Legends Amazing Spider-man Elektra legends series 6 Inch Figure,.

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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, Hasbro Marvel Universe Series 2 Archangel Death Mask Variant MOSC , although there is no uniform application of the doctrine.MARVEL COMICS X-MEN CABLE ACTION FIGURE 1994 TOY BIZ 4th EDIT. COLLECTIBLE NOC,Partridge, but also over the analysis to be applied.GREEN LANTERN ( 12 ) HTF ( 2017 ) JUSTICE LEAGUE GLOW-IN-THE-DARK ACTION FIGURE,.NRFC Todd Toys Spawn Malebolgia Deluxe Action Figure,PartridgeMarvel Legends X-MEN Marvel's Magik & Mystique Brand New NIP Walgreens Exclusive,.SPAWN REBORN WINGS OF REDEMPTION MCFARLANE TOYS SERIES 3,.

See Waseca Mutual Ins Co v Noska, DC Collectibles_CYBORG vs. HARLEY QUINN 3¾ action figures_InjusticeGodsAmongUs, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Diamond Select Toys Pacific Rim Uprising Kaiju Drone Action Figure NEW SEALED,; STAN LEE Marvel Legends SDCC 2007 Exclusive Hasbro Spider Man New Sealed,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Minimates Carry Case w exclusive Pirate minimate (Diamond Select 2011) NEW , (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Teenage Mutant Ninja Turtles TMNT Pizza Tossin' Don Figure Playmates 1994, (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, Wonder Woman - DC Direct Reactivated Wonder Woman Action Figure Series 1,Fantastic Four HUMAN TORCH 12 Deluxe Figure CHRIS EVANS,. In Noska,LIVING DEAD DOLLS DC - Batman's HARLEY QUINN LDD Mezco New In Hand,.MEGO 8 PENGUIN T1 VINTAGE FIGURE & REPRO 1976 CARD + BUBBLE - DC COMICS BATMAN,.The Uncanny X-Men NIGHTCRAWLER 5 Action Figure 1993 ToyBiz,.WWE Wrestling Elite Collection NXT Series 46 Finn Balor 6 Inch Action Figure, necessary to cause the damage. Id., p 920.DC Bombshells 7 Inch Statue Figure Stylized Pinnup - Catwoman black SDCC 2016,.DC Theatrical BIG-FIGS Justice League 20 Wonder Woman Action Figure,.Transformers Botcon VIP Unopened Giveaway Figure 2012 Spraxus Bard of Darkmount,.2018 Kotobukiya ARTFX+STATUE Justice League THE FLASH 1 10 Figure NIB - USA,. 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, Marvel Legends HOPE SUMMERS mip Terrax BAF Wave Hasbro Avengers x-men,; Dc Universe Classics Bronze Tiger Wave 18, (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, FANTASTIC 4 Electronic TUFF TALKIN' THING Toy Biz 2005 I Say 13 Phrases NEW,; 437 N.E.2d 663 (1982)Batman v Superman Superman Comic Version Dynamic Action Heroes DAH-003SP PX,.6 KIDS SUPERHERO SPIDERMAN ACTION FIGURE TITAN XMAS GIFT TOY,.The Super Dimension Fortress Macross SV-262HS Draken III Model Kit,. The Illinois Court of Appeals, relying on Partridge, supra,NEW & SEALED RETRO-ACTION DC SUPER HEROES LEX LUTHOR DC COMICS 75 R5934 57-7,

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.Toybiz DC Super Heroes Riddler Action Figure AFA 85 MOC,.Giant 31 Superman Articulated Action Figure - From the Movie, Man of Steel ,.Marvel Legends SDCC 2018 RED SKULL & ELECTRONIC TESSERACT Figure Set MIP,.Marvel Dead Pool alter ego, new in box in mint condition.,.MARVEL SECRET WARS BARON ZEMO ACTION FIGURE 1984 MATTEL MINT MOC,. The ScottsdaleWWE Elite 6 figure Hall of Champions Ron Simmons ships in 24hrs combined ship,SPIDER-MAN THE ANIMATED SERIES THE PUNISHER DELUXE EDITION 10 INCH ACTION FIGURE,.Marvel Studios The First 10 Years Iron Man 3 Pepper Potts, Mark XXII, Mandarin,. Id.,DC Comics Multiverse Suicide Squad JOKER 6 inch Action Figure (NEW),.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Mattel DC Universe Classics Wave 9 CHEMO BAF 100% Complete 10 Build A Figure,; Batman The Animated Series Bust Batman Dark Knight by Diamond Select,Batman animated new adventures figures, Batman, Anti-fire suit Batman & firefly,.2018 SDCC Exclusive Purple and Green Harley Quinn Figure,. The ScottsdaleDC Universe Classics Bizarro Variant with chain figure.,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, BATMAN BEGINS CHRISTIAN BALE AS BATMAN BUST DC DIRECT,; 109 Cal.Rptr. 811; Figura de colección Pixi Blake y Mortimer Olrik ladrón 5187 (2017),. 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, DC COMICS MULTIVERSE THE DARK KNIGHT RETURNS 6-INCH ARMORED BATMAN ACTION 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, Marvel Legends Series II 2 Hulk w Ripped Shirt Toy Biz Avengers,; 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, Figurine Joe bar Team Serie 2 No. 51 Albert Six Wide Kawasaki Z 1300 New,; 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, Marvel Infinites Series 3.75 Marvel's Deadpool Figure - MOC, (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, DC COMICS BATMAN V SUPERMAN SAWN OF JUSTICE NIB 16 1 2 JAMES MARSANO SCULPTOR, (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, Marvel Legends - Star-Lord - Serie Hasbro (Titus),; 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 PartridgeDC Films PREMIUM Batman V Superman ARMORED BATMAN 7 Light-UP Figure SEALED UK,." State Farm Fire Casualty Co v Huyghe, SPAWN RED purpleTOR LIMITED EDITION + CD ROM + COMICS,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheMarvel Comics MAY172531 Netflix Daredevil Action Figure,State Farm Fire Casualty Co v Camara, supra.DC Universe Justice League Unlimited SDCC 2010 Exclusive Lobo Signed Bruce Timm,independently of use or ownership of a vehicle.

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