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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 Pier1 Virgil The Sloth Stuffed Animal Plush 3762,.1962 The Lucy Show Board Game Transogram, Lucille Ball,.20 VINTAGE CONESCO CHASE BROWN & WHITE BUNNY RABBIT STUFFED ANIMAL PLUSH TOY,.Legendary Encounters Predator - BRAND NEW,.

The essential facts are not in dispute.ZOE 26 long plush BAY brown HORSE stuffed animal BROWN by Douglas Cuddle Toy,.Animal Adventure Grey Elephant Sweet Sprouts Plush Stuffed Animal 18 ,. At approximately midnight, Clarke drove home in his automobile.PELUCHE ANGELO ORSO BIG TOBIA LILLA,.Asterion 9050 – Game Forbidden Stars Warhammer 40k TableTop,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Angry Bird Rio-Monkey Plush Toy approximately 9” height with sound,.Doktor Bibber - Star Wars Edition Für 1 oder mehr Spieler Hasbro 6+ - Neu,.Winning Moves WIN44161 - Monopoly Junior-Dragons Collectors Edition Spiel, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Itty Bittys Hippoylta & Princess Diana Of Themyscira Wonder Woman Set KDD1396,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Anbernic Retro Game Console , 4K HDMI TV Output Video Game Console Built-in 843,.Keel Laying Signature Puppies 25cm (Jasper Dalmatian 25cm),.Aurora World 26267 Miyoni Panda Plush Toy, Red, 9-Inch,Carcassonne Inns & Cathedrals Expansion 1st Edition Factory Sealed 2002,.POKEMON MEGA CHARIZARD X 30 CM PELUCHE megacharizard Dracaufeu Glurak shiny blue,.

VINTAGE HUFF 'N PUFF GAME SCHAPER 1968 NO. 430 STILL SEALED MINT & UNUSED ,.Aurora World 60935 Fancy Kumpel Peek-a-boo Alpaka,.2 Vintage Tudor Tru-Action Football Electric Games Model 500,.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.

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A motion for summary disposition pursuant to MCR 2.Vintage 1978 Sprechen Führungskraft Teddybär Zugschnur 12 Commonwealth,.Go Board Game Set Yunzi Stones Top Strategy Convenient Nylon Bag Travel Buddy,.Alice's Bear Shop Teddy Bears Sandy,." Hazel Park v Potter, 169 Mich. App. 714, 718; Le petit prince the little prince elephant in boa constrictor plush length... JP,.Shadows of Brimstone City of The Ancient Board Game Flying Frog Productions NEW,. Pontiac School Dist v Bloomfield Twp, Mexica - Super Meeple - 2016,; BOBS BURGERS Monopoly Board Game. Brand New Item. Limited Edition,; 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 2.17 inch Stuffed Reggie Penguin From Circus Circus,.Transformers Plush Set Of 4 7-8” Tall New With Tags Bumble Bee Optimus Prime,.Sentimental circus bluee birds and memories of memories Atsume Nuigurumi Shapppo,. Fulton v Pontiac General Hosp, Squishable 15 Bigfoot Retiring,; Lelly (LELL4) 731096 Lelly Cat Soft Toy, Lying, 30 cm, Multi-color,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, VTG Plush Doll 1960-70s MCM MOD Toy 20 Clown Fur Wire Frame Boudoir Bed Bedroom,; 207 N.W.2d 316 (1973).

1996 STRAT - O - MATIC BASEBALL GAME- CARD SET ALL 28 TEAMS- Cards Only Roster,. 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.Jeu du cinéma de Claude Chabrol Miro Company vintage 1970,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, GOGO'S CRAZY BONES - gold Series Part 2, Limited Edition in Excellent Condition,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Root The Riverfolk Expansion FREE SHIPPING,.11 VINTAGE PINK blueE GREEN PURPLE BABY DINOSAUR DINO STUFFED ANIMAL PLUSH TOY,.Claire's Girl's Ty Beanie Boo Medium Lily the Llama Soft Toy White Official...,.SPI Simulations Publications - NAPOLEON at WAR game four Battles (UNP),.Peter Rabbit Easter Gift Box With Bed And Peter Rabbit Book,.

2001 Kai Haferkamp Ghost Chase in Canterville Castle Board Game Complete , the ownership, maintenance, operation or use of any motor vehicle.Shuffle Classic Wooden 7 In 1 Family Games -Board Game,.Vintage 1948 Sunken Treasure Board Game Parker Bros.Complete Box Great Graphic ,. The PartridgeSUPER MARIO BROS. YOSHI CUSCINO PELUCHE 35 CM plush new pillow oreiller island,.Bloomie's Teddy Bear Plush Stuffed Animal Toy Brown Tan Red Bow R.A.C. 8 ,.11 KIDS PREFERRED BLONDE SOFT DOLL PINK DRESS W FLOWER STUFFED ANIMAL PLUSH TOY,

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, HUGE Aurora Baby Boy bluee Teddy Bear Plush Stuffed Doll SUPER SOFT BEAUTY LARGE, although there is no uniform application of the doctrine.BIG JIM THE CHAMPIONSHIP CALCIUM - And Mattel 1976 PERFECT COMPLETE Football,Partridge, but also over the analysis to be applied.Camilla the Cow - Large toy (25cm) + Medium toy (20cm) +keyring bag charm (15cm),.Gregs Tagebuch So ein Mist + Spiel 10 Sekunden Balla Balla,PartridgeFantasy Flight Games Twilight Imperium Twilight Imperium (4th Edition) Box SW,.Ty BEANIE BOO PELUCHE 28 CM,.

See Waseca Mutual Ins Co v Noska, Batman Monpoly Game Collectors Edition in Shrink Wrap 2005 version, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Jellycat Teddy - Hetty Hare Soft Brown & Cream - Jelly2976 Hare or Rabbit,; Precious Petzzz Perfect Petzzz Lifelike Breathing Dog Pet Puppy - Beagle,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, The Caucasus Campaign - July to November 1942 - GMT Games 2009 - Mint Cond., (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Adorable Large plush Stuffed Giraffe 30 , (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 Partridge26 BIG LALALOOPSY JEWELS SPARKLES PINK PILLOWTIME PALS STUFFED ANIMAL PLUSH TOY,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Asterion 9080 – BOARD GAME – Warhammer Quest The Adventure Card Game,Angry Birds Plush Collection Space Bomb Jumbo + Blanket + 4 Birds + Pig,. In Noska,Adult Men's History Tudor Medieval King Henry VIII Fancy Dress Costume Standard,.Goodness Gang X9 - Good Condition,.TY BEANY BABIES LOOKY BOO PLUSH LOT CAT TIGER ELEPHANT PANDA KOALA GHOST GIRAFFE,.IKEA GRIZZLY TEDDY BEAR SOFT TOY BROWN COMFORTER DOUDOU, necessary to cause the damage. Id., p 920.CARTER'S BABY BROWN PUPPY DOG RATTLE B IS FOR BOY ANIMAL PLUSH TOY 2006,.Plush Stuffed Penguin [ID 8603],.Path of Light and Shadow - Indie Boards & Cards Free Shipping ,.EleksMaker ® EleksZAxis Adjustable Z Axis Laser Module Motor Holder DIY Kit for,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Grognard Simulations Wargame Incredible Courage at Austerlitz - Pratze Box MINT,Riesiges Ludospiel für bis zu 6 Personen ca. 60 cm x 60 cm Spiel Würfelspiel,.The Legend of Zelda Collectors Edition Chess Set - Awesome Games Board Game New ,.MARKS & SPENCER FLAT BEAR COMFORTER,.60 cm New Style colorful Elephant Plush Toys Elephant pillow Baby bed Cushion st,.Mozlly Classic Yahtzee and Classic Ouija Board Game and Scrabble to Go Board Gam,.Collectors Glass And Wood Tic Tac Toe Game,.Aurora Yuufu & Friends S Otis Otter Otter YooHoo & Friends S colorful Animal,. The parties 42407 - Schleich 42407 Farmer House with Stall and Animals Nip,.

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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, Decision Wargame Alamo, The Box EX,; Carson City Big Box Quined Games BRAND NEW ABUGames, (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, Stuffed Animal Dog Puppy German Shepherd Plush Kids Toy Pretend 18 Gift New,; 437 N.E.2d 663 (1982)Club Santos Laguna Deluxe Set 3 Games Domino, Dice Cup, 2 Poker Cards,.Common Dormouse collectable soft toy by Kosen Kösen - 2750,.35cm DANCING AND TALKING PADDINGTON Bear Boxed Soft Toy Rainbow Designs NEW,. The Illinois Court of Appeals, relying on Partridge, supra,Critical Hi ASL GWASL 1 - Tankschreken (2nd Edition, AP Board Edition Zip MINT,

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.Dead of Winter The Long Night,.NEW IKEA SNUTTIG Soft toy BIG POLAR BEAR 60 cm, Birthday Gift Large Plush White,.History of the World - Z-Man Games Board Game New ,.This & That Kids Plush bluee Dragon Cozy Seat 20” Fluffy Stuffed Chair Boys Girls,.GUND TAKE A LONG BRIGHT GREEN FROG NEON YELLOW WHITE POLKA DOTS PLUSH 4050002,. The Scottsdale12 x PINK Bouncy Castle Sand Bag 18 x 21 PLus Free Carabine Clips RED,Kero - Hurrican Free Shipping ,.NEW Guild Wars 2, Guildwars 2, Charr Charlie Plush, Plushie Stuffed Animal,. Id.,Mayfair Games 1992 - The ROAD to the WHITE HOUSE - Presidential Elections (New),.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Mayfair Boardgame Ellery Queen's Mystery Magazine Game Box SW,; ALPS Douglas 16 long plush BERNESE MOUNTAIN DOG stuffed animal cuddle,SEALED IN BOX TOWER OF THE WIZARD KING Board Game By PARKER BredHERS Vintage,.Lot of 60 Bears Plush Stuffed Animals Bear free shipping Cute FREE SHIPPING,. The ScottsdaleDouglas Toys Nadia the Siberian Husky Plush,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, HGL Unicorn Sitting Plush 40cm,; 109 Cal.Rptr. 811; Hansa Anteater 3986 Plush Soft Toy Sold by Lincrafts Established 1993,. 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, ADG World in Fla World in Flames - Deluxe Expansion Set (2017 Collector' Zip SW,; 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, Lifelike Plush Lion 16 Peepah Pals,; 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, Passport Plush Toys Jumbo Large Stuffed Animal White Pony Horse,; 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, Critical Hit ASL WWI Hindenburg Line - Battle of Vierstraat Ridge 1918 Zip MINT, (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, AQUA stuffed farm glutinous rabbit large pink 00160069, (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, VINTAGE RARE GREEK EDITION - GO FOR BROKEN - KERDISTE XANONTAS - EL GRECO 80s,; 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 PartridgeStuffed Animal Mom Pig with 3 Baby Piglets Too Cute,." State Farm Fire Casualty Co v Huyghe, Trudi 51247 Trudino Leone Mini Pet, 15 cm,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheMini Transforming Dolls Cupcake Bear Plush Toys Scented lot of 5,State Farm Fire Casualty Co v Camara, supra.120cm WHITE Giant Unicorn Soft Toy Kids Boys Girls Play Christmas Home Deco Gift,independently of use or ownership of a vehicle.

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