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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 1988 Chaos Champion of Slaanesh 0218 09 Citadel Warhammer Army Hordes Fighter GW,.Warhammer 40k Adeptus Titanicus Warlord Battle Titan,.Games Workshop INQUISITOR - 54mm Sergeant Stone OOP Rare,.2013 Chaos Nurgle Putrid Blightkings Citadel Pro Painted Warhammer Blightlord GW,.

The essential facts are not in dispute.Warhammer 40k Outpost Pythos IV Games Workshop Scenery New Sealed BNIB,.Primaris space marines army Pro painted made to order. Choose your chapter,. At approximately midnight, Clarke drove home in his automobile.Warhammer Sigmar Khorne Forge World Skaarac the Bloodborn Great Khorgorath,.Games Workshop Warhammer Kislev Horse Archer Standard Bearer Dogs of War OOP New,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.GW WH AoS Grand Alliance Chaos Daemons Plague Drones of Nurgle x6 Need Work,.Citadel RR17 Avenging Knights Of The Cleansing Flame Regiment Metal 1980s oop,.Warhammer Age of Sigmar 40,000 Daemons of Chaos Maggotkin Orghotts Daemonspew 64, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Games Workshop Warhammer 40k Sisters of Battle x3 Metal Figures BNIB New Sealed,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Rogue Trader Warhammer 40k Space Marine Metal Plastic OOP Painted Used Clearance,.Games Workshop Warhammer 40k Orks Sqwadron Commander Games Day Forgeworld Pilot,.Warhammer 40k Imperial Guard metal storm trooper meltagun Inquisition lot Y551,OGRE KINGDOMS Maneater ninja METAL PRO PAINTED empire mercenary Fantasy,.Games Workshop Warhammer Age of Sigmar Stormcast Eternals Paladins BNIB Sealed,.

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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.Ryza Pattern STC Ruins Games Workshop Terrain Moon Base Klaisus Terrain Terrain,.Warhammer 40k Necromunda Bratt Confrontation ganger metal rare Y508,.Games Workshop Warhammer Fantasy Battle Chaos Daemons Tzeentch Flamers D,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer 40K Chaos Space Marine Noise Marine,.Circle of Orbgolds Army Lot ( 700 msrp) 50% off,. Pontiac School Dist v Bloomfield Twp, Games Workshop Warhammer 40k Tyranids Tyranid Hive Tyrant 3rd Edition Metal OOP,; Skitarii Vanguard of Skitarii soldier painted action figure Warhammer 40K,; 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. . . .

KNIGHT MODELS DC MR FREEZE CREW METAL NEW,.Warhammer Empire Reiksguard Foot Knights,Tyranid Broodlord Tyranids Genestealer Cult Cults Warhammer 40k NEW,. Pontiac School Dist, supra.Warhammer - Age of Sigmar - Putrid Blightkings - NIB - Free Shipping,.

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A motion for summary disposition under MCR 2.Warhammer 40,000 Space Marines Red Scorpions Venerable Dreadnought 23,.Games Workshop Warhammer Bretonnian Knights of the Realm Standard Bearer Metal,.WARHAMMER 40K - Space Marine Vindicator - NEW NSF3,. Fulton v Pontiac General Hosp, Knight Models Harry Potter RUBEUS HAGRID AND FANG PAINTED,; Warhammer Age of Sigmar Daemons of Chaos Plaguebearers of Nurgle 116,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Exclusive Space Marine Ultramarines Lieutenant Calsius from Conquest Issue 5 (a),; 207 N.W.2d 316 (1973).

Warhammer 40K Adeptus Mechanicus Skitarii,. 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.

Figures 10 pieces WARHAMMER 40.000 notes the photos,. First, the policy's exclusionary language is not ambiguous.Church & Belfry with Gated Graveyard 28mm MDF Set by WWS – Warhammer Table top,.Games Workshop Warhammer 40k Eldar Harlequins Jetbike Rogue Trader Era Harlequin,. See Allstate Ins Co v Freeman, supra, pp 665-667.1989 Bronze Dragon 2 Lords Grenadier Models 9609 Dungeons & Dragons AD&D Wyrm,. We disagree with the trial court's second and third statements.Warhammer savage orcs citadell 2010 set,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.NECRONS Tesseract Vault WELL PAINTED Warhammer 40K necron Trancendant CTan,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Forgeworld Horus Heresy Predator MAGNETISED,; 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 40,000 40K SPACE MARINE IMPERIAL FREEBLADE RENEGADE KNIGHT PAINTED,.Warhammer Fantasy Dark Elf Supreme Sorceress Drow Witch Priestess - Metal,.Legion Sicaran Battle Tank - Warhammer 40k \ 30k Painted Commission,.Warhammer 40,000 Space Orks Tr,.Warhammer Age of Sigmar Lizardmen Seraphon Metal OOP Stegadon 482,.

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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, Warhammer Fantasy AOS Age of Sigmar Empire Freepeoples Halberds Plastic, although there is no uniform application of the doctrine.Savage Boarboys Bonesplitterz Warhammer Age of Sigmar NIB,Partridge, but also over the analysis to be applied.Warhammer 40,000 40K 10x2nd Ed Metal Tyranid Spore Mines Fully Painted OOP Metal,.NECRON CANOPTEK WRAITHS - Painted Warhammer 40K Necrons Army A,PartridgeWarhammer 40K - Astra Militarum - BRAND NEW Catachan Jungle Fighters,.Warhammer 40K Space Marine Stormhawk Interceptor SEALED,.

See Waseca Mutual Ins Co v Noska, FORGEWORLD WARHAMMER MHARA GAL TAINTED DREADNOUGHT, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer 40,000 Necron Deathmarks Pro Painted,; Warhammer 40,000 Space Marines Crimson Fists Sternguard Vets 179,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, WARHAMMER 40K ASTRA MILITARUM ARMY - MANY UNITS TO CHOOSE FROM, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer Age of Sigmar Ogre Kingdoms Ogors Gnoblars 984, (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 PartridgeWarhammer 40,000 Chaos Space Marines Khorne Squad 498,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, 30 x Gors New in Box Warhammer Age of Sigmar,Warhammer Fantasy Orcs and Goblins Wolf Riders Boar Boyz x6 metal OOP 1985 3809,. In Noska,Warhammer Chaos Knights x6 Regiment Metal Plastic Job Lot Games Workshop Painted,.(C711) WARHAMMER (citadel) CHAOS BLOOD TROLL STAR PLAYER METAL OOP,.Warhammer Space Marines Roboute Guilliman Primarch Ultramarines 684 (pink),.Warhammer 25th Anniversary Harry The Hammer Open Box Metal Mini Games Workshop, necessary to cause the damage. Id., p 920.Games Workshop Warhammer 40k Inquisitor Coteaz Inquisition Metal Mint New GW OOP,.Warhammer 40k Astra Militarum Imperial Guard - Wounded, Casualties Pro Painted,.Limited Edition Warhammer 40k Space Marine Veteran White Dwarf 2008 Rare OOP,.Knight Valiant Commission Pro Painted 40k,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, W40K FORGEWORLD CHAOS TITAN REAVER NURGLE DEATHGUARD,Warhammer 40K Venomcrawler and Obliterators sprues,.Large Slaanesh, built unpainted force In Time For New Army Release,.RARE Chaos Sorcerer Lord Pro Painted warhammer wfb,.Dark Eldar Reavers Games Workshop Warhammer 40.000 Jetbikes Motos Schwadron,.Games Workshop Warhammer 40K 51-13 Tyranid Trogon Mawloc,.Warhammer Fantasy METAL Daemons Of Chaos Bloodthirster Greater Daemon Of Khorne,.Games workshop Warhammer 40k Spacemarine landraider Terminus Ultra Painted,. The parties Warhammer Fantasy AOS Age of Sigmar Dwarf Mountain Stronghold OOP,.

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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, AOS Nurgle redbringers Putrid Blightkings Box Set MIB,; Warhammer Age of Sigmar Deathrattle Grimghast Reapers plastic new, (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, POXWALKERS x 10 Painted Death Guard Nurgle Chaos Marine Warhammer 40k Army Lotz7,; 437 N.E.2d 663 (1982)Warhammer 40k Dark Imperium Terrain lot. 3d Printed Painted Crashed Ship Theme,.Games Workshop Warhammer Orcs Job Lot Classic Figures Army Spares Chariot Boyz,.Metal Chaos Space Marine Sorcerer Blister - OOP - Warhammer 40K CC197,. The Illinois Court of Appeals, relying on Partridge, supra,SPACE MARINES PRIMARIUS CHAPLAIN - Games Workshop 4862,

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.FIREFORGE GAMES DEUS VULT FFG012 SCANDINAVIAN INFANTRY,.Warhammer Age Of Sigmar KHARADRON OVERLORDS Arkanaut Company,.Warhammer 40k Tyranid Tyrannofex magnatised with weapon options,.Warhammer 40,000 Tyranids Hive Tyrant 39,.Harlequin Death Jester Eldar Games Workshop Warhammer 40.000 40k GW 58-15,. The ScottsdaleWarhammer Dwarves Dwarf Bugmans Brewers Standard Bearer Metal Figure Fantasy OOP,Warhammer Age of Sigmar Book,.Bretonnia Trebuchet Metal Sitxh Edition OOP,. Id.,Games Workshop Warhammer 40k Space Marines Scout Bikes Upgrade Components Metal,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer Age Of Sigmar - Stormcast Eternals (Limited Edition).,; IRONJAWZ orruk megaboss Warhammer Sigmar NIB NEW,Warhammer 40K Space Orks Ork Gorkamorka Warbike Warbiker,.GW Warhammer 40K Warhammer Siege (1991 Edition) SC VG+,. The ScottsdaleWARHAMMER 40K ARMY CHAOS SPACE MARINES PLAGUE MARINE SQUAD PAINTED,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Thousand Sons Scarab Occult Terminators Warhammer 40k,; 109 Cal.Rptr. 811; Chaos Space Marines Vindicator Tank Siege Shield Warhammer 40k - painted - A,. 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, Warhammer Age Sigmar Nighthaunt Store Exclusive Garkorr Bladegheist Revenant 174,; 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, Pro Painted Warhammer 40K Grey Knights Purgation Squad,; 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, Gw Warhammer 40k 40,000 Tyranid swarm army Mawloc,; 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 40k Necrons C'Tan Shard Nightbringer - metal, (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 40K - Genestealer Cults - Leman Russ - Brand New - Free Shipping, (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 QUEST - vintage r p board game - 100% complete- A1,; 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 Grey Knights Grand Master Voldus GWS 57-11,." State Farm Fire Casualty Co v Huyghe, WARHAMMER 40,000 40K SPACE MARINES ULTRAMARINES RHINO ASSAULT TANK PAINTED,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheChaos Daemons Codex (German) Games Workshop Warhammer 40.000 Daemons 8th,State Farm Fire Casualty Co v Camara, supra.WARHAMMER Uniforms & Heraldry of the Empire,independently of use or ownership of a vehicle.

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For example, in Partridge,Games Workshop Warhammer 40k Eldar Swooping Hawks Squad Metal Figures WH40K OOP,. In Jorgensen, supra,Warhammer 40k Necrons Army mostly painted 35 units total (see description) .,. Therefore, the non-auto-related negligence had been established.Warhammer 40,000 Thousand Sons Rubric Marines 43-35,. The Illinois court in U S Fidelity Guarantee, supra,Games Workshop Warhammer 40k Tau Empire XV8 Crisis Battlesuits x8 Painted Army,. That is the same situation in this case.Warhammer Fantasy AOS Stormcast Eternals Judicators x 6,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Warhammer 40K Space Marine Dark Angels, Elite Group, 6 minis, PRO PAINTED,. Detroit Edison, supra.

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