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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 Galrauch- The first Chaos Dragon. Model in Pewter and fully painted.,.(6) Wraiths for Warhammer Fantasy Battle - Rare OOP - Metal ,.Warhammer Forgeworld Tau R'Varna Battlesuit + Drones Assembled,.Bretonnia Box Sealed Knights Of The Realm OOP,.

The essential facts are not in dispute.Warhammer 40K Death Guard collectors edition codex OOP,.greenus Praetors Adeptus Custodes - Warhammer 40k 40,000 Model New Jetbikes,. At approximately midnight, Clarke drove home in his automobile.Games Workshop Warhammer 40,000 The Writhing Shadow Tyranids Starter Set Kill,.Warhammer 40,000 Daemonhunters Grey Knights Interceptor Squad Ready to Base 873,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Eldar Falcon Grav Tank Warhammer 40k,.Horticulous Slimux [Maggotkin of Nurgle] [x1] Chaos [Age of Sigmar] Painted,.Chaos Space Marines 40K CRIMSON Slaughter FREE SHIPPING MULTI colorD, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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1987 Chaos Thug 0213 02 CH6 Markos Deathshead Citadel Warhammer Army Marauder GW,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Warhammer 40,000 Tau Empire Crisis Battlesuits 753,.Games Workshop Warhammer 40k Imperial sizern Lieutenant Captain with Bolter New,.Ork army 5 warhammer 40k PAINTED,Warhammer 40k Space Marines Adeptus Astartes Tactical Marines,.Space Marine Sternguard Veterans set Warhammer 40,000 40K Space Marines NOS,.

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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.Miniaturas Legión de los Condenados Centurius Warhammer 40K metal Citadel marine,.WARHAMMER 40K SQUAD SPACE MARINES DARK ANGELS TACTICAL SQUAD X 10,.1988 Chaos Champion of Khorne 0219 03 Citadel Warhammer Army Hordes Evil Fighter,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer 40,000 Kill Team Krogskull's Boyz Starter Set,.Warhammer 40K Tyranid Mawloc Unpainted,. Pontiac School Dist v Bloomfield Twp, 1987 Chaos Centaurs CH4 Citadel Pro Painted Warhammer Army Evil Hordes Cavalry,; Thousamd Sons ARMY, Warhammer 40k With Daemon Allies,; 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.Games Workshop Warhammer Orcs Boar Boyz Regiment Painted Metal Figures OOP GW,.Warhammer 40k Space Marines Blood Angels Drop Pod,.Warhammer 40,000 Tyranids Winged Hive Tyrant 27,. Fulton v Pontiac General Hosp, Warhammer 40,000 Adeptus Mechanicus Kastelan Robots 736,; Orcs & Goblins Nasty Skulkers Games workshop Warhammer 40k,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Zinge Industries Steampunk Gun Carriages x3 and guns x3 Field Battery S-ART04 B,; 207 N.W.2d 316 (1973).

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Warhammer 40,000 Chaos Space Marines Terminators Squad 731,. 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.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Games Workshop Chaos Dice Khorne Red New D6 Warhammer 40k Fantasy Dice OOP,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Warhammer 40k Space ork stikkbommerz,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Warhammer 40K Eldar Striking Scorpion w Exarch army lot painted table ready,.Warhammer 40k AOS Chaos Warriors Miniatures Lot Of 10 Painted & Based,.Citadel GW Warhammer 40K Limited Edition Iron Claw - ORK MEGABOT - Rare Roborg,.Warhammer 40k Thousand Sons 8th Edition Codex Game Workshop 40,000 New HC Book ,.Warhammer 40k Tau Fire Warriors Group,.

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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, Games Workshop Warhammer 40k Space Marines Marine Tactical Marines 12 AOBR Squad, although there is no uniform application of the doctrine.Warhammer 40k Tau Empire Pathfinder Team x10 (99120113040) (Painted),Partridge, but also over the analysis to be applied.Warhammer 40K Leman Russ Demolisher Imperial Guard Astra Militarum Painted G74,.NURGLE PLAGUEBEARERS - Rare Realm Of Chaos Maggotkin Warhammer Daemons Citadel,PartridgeSpace Marine Drop Pod Warhammer 40K NIB Flipside,.Warhammer 40K Craftworlds WIND RIDERS,.

See Waseca Mutual Ins Co v Noska, Citadel Miniatures SPACE-MARINES Space Marine Scouts . new sealed, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, WARHAMMER Kharybdiss degli Elfi Oscuri,; Gruppo di comando Ogre del caos (MI04),; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Warhammer Age of Sigmar Orks Icebrow Hunter resin new, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Sslyth of Dark Eldar soldier painted action figure miniature Warhammer 40K, (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.

The crucial inquiry in applying PartridgeNEW Space Marine Raven Guard Shadow Captain Solaq - Warhammer 40k,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Winged Hive Tyrant Nids Tyranids 40k Warhammer,Imperial Guard Tank Crew (4) OOP – metal Astra Militarum Warhammer 40K GM40,. In Noska,Games Workshop Warhammer Chaos Dwarf Bull Centaur Dwarves Metal Complete Mint A1,.WARHAMMER AGE OF SIGMAR STORMCAST ETERNALS PALADINS,.Games Workshop Warhammer 40k Imperial Guard sizern Rough Riders Rider Sergeant,.Forgeworld Tribune Ixion Hale event only Legio Custodes warhammer 40 30k painted, necessary to cause the damage. Id., p 920.Warhammer 40k 30k Mechanicum Adeptus Mechanicus Horus Heresy army Forgeworld GW,.Warhammer Age of Sigmar Collegiate Arcane Empire Fire Wizard Painted IH PAP,.Warhammer 40k Eldar Aeldari Jetbikes Windriders OOP plastics,.A PRIVATE WAR UNOFFICIAL WARHAMMER FANTASY ROLEPLAY SUPPLEMENT 1000 COPIES WFRP,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Games Workshop Warhammer Nighthaunt Knight of Shrouds on Ethereal Steed Painted,Soul Grinder warhammer 40K COMMISSION lava painting,.Warhammer 40k Genestealer Cults Broodcoven (new on sprue),.1982 FF5-2 Fiend Factory Winged Demon with Sword and Whip Citadel C31 Balrog GW,.Reaver Titan With Melta Cannon & Chainfist Warhammer 40k,.WARHAMMER 40k - Tyranid Ravener Brood - Nidiata di Tiranidi Divoratori NEW NSF3,.Warhammer Chaos Plaguebearers Of Nurgle, Nuevo Metal,.Warhammer 40K Chaos Marine Terminators 5,. The parties Warhammer 40k Age Sigmar Fantasy Painted Daemons Of Nurgle Army W Forge World ,.

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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, 1994 0524 Undead Zombie Dungeons & Dragons Games Workshop Citadel Warhammer AD&D,; Night Goblin Fanatics x 3 plastic Warhammer Fantasy Games Workshop Citadel, (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, Warhammer Start Collecting Astra Militarum - GW-70-47,; 437 N.E.2d 663 (1982)Warhammer 40k Primaris Intercessors Ultramarines Pro Painted,.Warhammer 40k Tau Empire XV95 Ghostkeel Battlesuit,.Warhammer 40K Chaos Nurgle Foetid Bloat-drone plastic New,. The Illinois Court of Appeals, relying on Partridge, supra,Magnetized Tyranid Carnifex Warhammer 40k 40,000 Service All Bits Included WMG,

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.Citadel Warhammer 40k Tyranid Carnifex,.Games Workshop Warhammer 40k Ork Boyz,.Crypt Horror And X2 Flayers Warhammer Age of Sigmar. Very Well Painted,.1999 Undead Wight Champion Command Group Citadel Skeleton Warhammer Army Lord GW,.1988 Chaos Knight 0221 01 Games Workshop Warhammer Army Realm of Warrior Cavalry,. The ScottsdaleCodex chaos warhammer armies fantasy second edition - introvabile,Games Workshop Age of Sigmar Stormcast Eternals Liberators + free glue w .90,.Thousand Sons Horus Heresy 30k Army,. Id.,Warhammer - Ogre Kingdoms - 7x Ogre Bulls (REF 1) Exc Con - Free Post ,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Lord-Ordinator Vorrus Starstrike New Order Grand Alliance,; WARHAMMER 40K SPACE MARINES IMPERIAL FISTS PRIMARIS INCEPTORS BOLTERS PAINTED,Warhammer 40,000 (40K) 4' x 4' Battle Mat City Ruin NIB,.Warhammer Fantasy Warriors of Chaos Giant or AoS Chaos Aleguzzler Gargant,. The Scottsdale2007 Dark Elf Supreme Sorceress Citadel Pro Painted Army Drow Witch Priestess GW,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Stormcast Eternals Lord-Aquilor Warhammer Age of Sigmar Games Workshop Model New,; 109 Cal.Rptr. 811; WARHAMMER Fantasy - High Elf Swordmasters of Hoeth Command - NEW NUOVO METAL,. 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, Games Workshop Warhammer 40,000 Codex Grey Knights,; 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, Fantasy Football - Wood Elf SET of 5 LINEMEN for Blood Bowl - Meiko Miniatures,; 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, Runewars Miniatures Game Fantasy Flight Games Starter Box Painted Commission SVC,; 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, Warhammer Age of Sigmar Dwarves Dwarf Arkanaut Frigate 213, (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, Warhammer 40,000 Space Marine Forge World Pads Red Scorpions Tactical Squad 45, (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, Warhammer 40'000 - Regole 4a Edizione - Edizione Limitata,; 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 PartridgeWarhammer 40K Blood Angels Space Marine - Terminator Captain, well painted,." State Farm Fire Casualty Co v Huyghe, Dire Avengers of Eldar soldier painted action figure miniature Warhammer 40K,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheGames Workshop Warhammer Night Goblins And Squig Herders New,State Farm Fire Casualty Co v Camara, supra.Master En Armure Terminator Dark Angels 40k Pro Painted,independently of use or ownership of a vehicle.

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