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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 Sydonian Dragoon of Skitarii soldier painted action figure Warhammer 40K,.40k limited edition rule book,.Dwarf Master Engineer Sapper Hammer & Pistol Metal Dwarves Games Workshop OOP,.Games Workshop Orruk Maw-Krusha Age of Sigmar,.

The essential facts are not in dispute.Warhammer 40,000 Tyranids Broodlord 657,.HC3D -WoR Thorn Mega Maw Mini- Alien Wargames Miniatures Scenery 40k 28mm 15mm,. At approximately midnight, Clarke drove home in his automobile.Warhammer 30K Legion Glaive Super Heavy Death Guard Tank PRO Painted,.CHAOS SPACE MARINES DAEMONS Chaos spawn Warhammer 40K Sigmar NIB NEW,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.1989 St. Louis Cardnials Team Kenner Starting Line Up New In Box,.Warhammer Fantasy Empire Knights x15 Various plastic OOP Shelf C,.Warhammer 40,000 Chaos Space Marines Helbrute 746, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Warhammer Chaos Daemons Exalted Flamer Well Painted - JYS82,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Warhammer Age of Sigmar Skaven Plague Furnance Screaming bell on sprue 639,.Games Workshop Warhammer 40k Space Marines Corvus Beakies Tactical Marines Army,.GW Warhammer 40K Codex Dark Eldar 7th edition - Hard Cover - Shrink Wrapped ,1994 Chaos Dragon Ogre B1 Games Workshop Citadel Warhammer Army Ogor Cavalry GW,.Warhammer 40k ork boy bundle,.

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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.Nightvault Arcane Hazards COMMISSION painting including everything,.Citadel Skulls - Terrain Warhammer 40k 40,000 Games Workshop New ,.EROI BRETONIANI BRETTONIAN GRAIL GRAAL KNIGHTS WARHAMMER FANTASY GAMES WORKSHOP,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer Adeptus Mechanicus Ironstrider Ballistarius Sydonian Dragoon BNIB 436,.Kill Team Killzone Wall of Martyrs Expansion Warhammer 40K NEW ENGLISH EDITION,. Pontiac School Dist v Bloomfield Twp, Warhammer The Restless Dead Hardcover Book,; Games Workshop Warhammer 40K Dark Eldar Succubi Wych Succubus New Metal WH40K GW,; 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.Necron Ghost Ark - Games Workshop, Warhammer 40,000,.Warhammer 40k - Blood Angels Captain - Metal - Painted,.Warhammer 40K Thousand Sons Scarab Occult Terminators BNIB,. Fulton v Pontiac General Hosp, PLASTIC WARHAMMER CHAOS DAEMONS OF KHORNE SKULL CANNON PAINTED (L),; ILYAD GAMES GIANT SKELETON WARRIOR KRAHN - OOP Rare Chroniques De La Lune blacke,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warhammer 40k Sisters of Battle Squad - 1 Superior + 4 Troops - metal - Lot H,; 207 N.W.2d 316 (1973).

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Tyranid Genestealer Brood - Tyranids Warhammer 40k 40,000 Games Workshop New ,. 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.

1985 Guardian Dragon Lords Grenadier Models 2524 Dungeons & Dragons AD&D Wyrm,. First, the policy's exclusionary language is not ambiguous.Warhammer Age of Sigmar Maggotkin of Nurgle Putrid Blightkings (5 Models),.Games Workshop Citadel F1 Fighters Metal Figures Warhammer Blister OOP New 1980s,. See Allstate Ins Co v Freeman, supra, pp 665-667.Harlequins Codex Eldar (German) Games Workshop Warhammer 40.000 40K Hardcover,. We disagree with the trial court's second and third statements.Warhammer Age of sigmar, ogre army well painted and based.,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.The Loyal Subjects MOTU Skeletor Figure SDCC 2016 Electric bluee Toy Variant MOC,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Games Workshop WH40k Forgeworld Chaos Renegade Militia Conversion Kit New Bodies,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.High Elf Imrik Dragon Prince Games Workshop OOP,.Warhammer 40k Ork Lot of 5 Boyz and 2 Minders metal Games Workshop GW Vintage,.Warhammer Age of Sigmar Start Collecting Flesh-eater Courts plastic box new,.1987 DS6 Serpentine Dungeons & Dragons Games Workshop Citadel Warhammer AD&D GW,.Games Workshop Adeptus Titanicus Warlord Battle Titan PRO Painted to Order,.

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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, Thousand Sons Warhammer 40k Lot, although there is no uniform application of the doctrine.Warrhammer G.W Bloodbowl Classic Ogre metal oop WELL PAINTED ogre kingdom,Partridge, but also over the analysis to be applied.AoS WFB Orcs and Goblins Army Box - Sealed - 2010,.Runelord - Dispossessed - Age of Sigmar - Warhammer,PartridgeTau Empire Fire Warriors Warhammer 40K,.Vintage 1980s Citadel Metal Miniatures Skeletons x 9,.

See Waseca Mutual Ins Co v Noska, Games Workshop Warhammer Night Goblins Greds x12 Bits Lot Sprues BNOS New OOP, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Orks Megatrakk Scrapjet Games Workshop Brand New 99120103065,; Warhammer 40,000 Tyranids Carnifex 642,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Warhammer 40K, Chaplain with Skull Helmet, plasma pistol and power axe PRO PAINT, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, First Strike A Warhammer 40,000 Starter Set New Warhammer 40K Box Sets, (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 Tyranids Winged Hive Tyrant 640,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Dungeons and Dragons Deamons,WARHAMMER, EMPIRE ARMY, MORTAR & CREW,. In Noska,WARHAMMER 40.000 - SPACE MARINE HEAVY ASSAULT - Build + Paint - NEW,.Grand Master of the Knights Panther, sealed - Warhammer Fantasy Battles Empire,.LOTR Citadel metal OOP Khandish King on War Chariot Awkards,.Warhammer Orcs and Goblins Squig Hoppers Well Painted, necessary to cause the damage. Id., p 920.Warhammer Space Marine Tactical Marines Well Painted,.Warhammer 40,000 Dark Imperium 40K CHAOS DAEMONS CODEX and or DATACARDS,.Games Workshop Warhammer 40000 Conquest Binder New Magazine Holder New Hachette,.SLAUGHTERPRIEST KHORNE SEÑOR DEL CAOS PRO PAINTED CHAOS WARHAMMER AOS,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Détachement space marine, battleforce, warhammer 40k,Warhammer Chaos Sorceror gamesday limited edition blister nib,.Metal Imperial Guard Lord Solar Macharius - OOP - Warhammer 40K X215,.Games Workshop Warhammer Hobgoblin Hero on Wolf Chaos Dwarves Hobgoblins New OOP,.Bretonnian Grail Pilgrims blister Warhammer NEW Pellegrini Bretoniani,.Soul Grinder Chaos Daemons 40K Warhammer,.Forge World Warhammer 40k Bunker OOP,.MOTUC, Angella, Masters of the Universe Classics, MOC, figure, sealed, MISB, pop,. The parties Citadel GW Warhammer BC7 - Heroic Fighters of the Known World - Complete Box Set,.

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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, Khorne Bloodletters Sanguinari Metal - Warhammer Fantasy 4th 5th edition,; Citadel ME-41 Goblins Warg Riders Lord of the Rings LoTR Metal Figure Warhammer, (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, SPACE MARINES PRIMARIS REPULSOR 48-78,; 437 N.E.2d 663 (1982)Warhammer Age of Sigmar Warriors of Chaos Marauders 198,.GW Warhammer AoS Chaos Archaon the Everchosen Bitz Incomplete,.Warhammer Age of Sigmar Lizardmen Seraphon Skinks 423,. The Illinois Court of Appeals, relying on Partridge, supra,Games Workshop Heroquest Quest Wizards of Morcar Expansion Complete 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.Warhammer Age of Sigmar Orruks Orcs Goblins Gred Spider Riders 531,.1991 Chaos Champion of Tzeentch Mace & Spellbook Citadel Warhammer Army Hordes,.OOP Citadel Warhammer Empire C06 Northern Norse Dwarf Army x 35,.Warhammer Fantasy Ogor - Ogre Maneater ninja ,.ORKS 3 Killa kans Warhammer 40K,. The ScottsdaleWarhammer Games Workshop Citadel - Harboth's Orc Archers Regiment Of Renown OOP,Death Korps of Krieg Mars Alpha Pattern Leman Russ Vanquisher painted Warhammer,.FW Cerastus Knight Lancer New Unassembled,. Id.,Warhammer Age of Sigmar Lizardmen Seraphon Skinks 654,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer Age of Sigmar Lizardmen Seraphon Saurus Oldblood On Carnosaur 7,; Warhammer 40K - Daemons of Nurgle Beast of Nurgle - NEW FREE SHIPPING,WARHAMMER 40K - Space Marine Centurion Devastator Squad - NEW NSF3,.1985 Dwarf Villager 0309 22 D7 Prospector Citadel Warhammer Townsfolk Miner AD&D,. The ScottsdaleWarhammer 30,000 Space Marines Mark IV Flamer Special Weapons Squad 84,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Judgements of Khorne Infernal - age of sigmar COMMISSION painting,; 109 Cal.Rptr. 811; Tyranids Tyrannocyte Spgoldcyst Mucolid Spore Tyranid Warhammer 40k NEW,. 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, CHAOS SPACE MARINES HERETIC ASTARTES NURGLE DEATH GUARD TYPHUS METAL PAINTED,; 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, WARHAMMER 40k Templar Knights Imperial fists marines Army pro painted Huge Lot ,; 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, Space Marine Assault Squad - Warhammer 40k - Games Workshop - Unopened - 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, MM41 Empire Ogre with Axe, very well painted., (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, Huge Multi-listing Warhammer Wood Elf Lord Rider mage Metal models Rare OOP, (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 40K - Infinity - Escenografía - AKIRA COMICS Building,; 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 Space Marines Forge World Death Guard Legion Contemptor Dreadnought 35,." State Farm Fire Casualty Co v Huyghe, Warhammer 40k Space Marines White Scars Scout Bikes Grenade Launchers,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheRoboute guilliman Made To Order Pro Painted,State Farm Fire Casualty Co v Camara, supra.Kawasaki ZX7R Seat Driver's Bench Seat 1996 2003,independently of use or ownership of a vehicle.

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For example, in Partridge,Warhammer Vampire Counts AoS Death Deathrattle - 20 Mantic Skeleton Warriors,. In Jorgensen, supra,Ork Warbiker Mob Warhammer 40K - New Shrink Wrapped,. Therefore, the non-auto-related negligence had been established.Kairos Fateweaver - Chaos Daemons - Chaos Space Marines - Age of Sigmar 40k OOP,. The Illinois court in U S Fidelity Guarantee, supra,Warhammer Fantasy Orc and Goblins Boyz x34 + Boar Chariot + Boar Boss Shelf D,. That is the same situation in this case.VOSTROYAN POWER FIST SERGEANT METAL NEW IN BLISTER OOP FIRSTBORN IMPERIAL GUARD,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Warhammer 40k, Thousand Sons Tartaros Terminators - superbly painted,. Detroit Edison, supra.

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