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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.


Defendant Melinda Clarke appeals Games Workshop Warhammer 40,000 Tyranid Broodlord (Metal),.Citadel metal c23 giant ogre, Skrag the Slaughterer, A+ condition warhammer,.Warhammer 40K Limited Edition Space Marine Captain Games Day 2008 in Blister,.Warhammer 40k 1st edition EPIC Space Marine - UNPAINTED 100% complete [1989],.

The essential facts are not in dispute.Space Marines Primaris Aggressor Games Workshop Space Navy Aggressor 40k,.Games Workshop Warhammer 40k Death Guard Plague Marines Squad Metal Chaos Army B,. At approximately midnight, Clarke drove home in his automobile.Warhammer 40k Kill Team; Rogue Trader Gellerpox Mutants New on Sprue with Codex,.C25 Fimir noble hero warrior Citadel gw games workshop oldhammer dual ace mace,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer Eldar Prince Yriel Metal Well Painted - JYS61,.Warhammer 40k Tyranid Harpy Hive Crone NEW SEALED,.Sisters of battle female gw citadel warhammer 40k 40000 hospitaler medic sister, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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WARHAMMER BLISTER EMPIRE x1 VALTEN HORSE X1 WARRIOR PRIESTS X1 TEUTOGEN COMMAND,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Sepulchral Guard Shadespire COMMISSION painting including cards,.Warhammer 40K Adeptus Mechanicus Skitarii - New in box,.Warhammer Age of Sigmar Core Book (English) Soul Wars 11382,Warhammer 40,000 Tau Empire Forge World XV88 Broadside Battlesuit 107,.WArhammer 40k grey knights Bredher Captain Stern,.

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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.Warhammer 40,000 Astra Militarum Imperial Guard Leman Russ 764,.Warhammer 40,000 Astra Militarum Imperial Guard Leman Russ Tank 979,.Primaris space marines army ultramarines. Pro painted made to order.,." Hazel Park v Potter, 169 Mich. App. 714, 718; Bretonnian Knights of the Realm BRAND NEW COMPLETE no box Bretonnia OOP,.Warhammer Age of Sigmar Khorne Bloodstoker Pro Painted,. Pontiac School Dist v Bloomfield Twp, W40k - DA Primaris Ancient (painted),; Song of Ice & Fire Miniatures Game Ramsey Bolton & Reek Pro Painted,; 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 Beast Of Nurgle Age of Sigmar,.SALAMANDERS Vulkan He'stan METAL Warhammer 40K Space marines,.Warhammer Age of Sigmar Idoneth Deepkin Namarti Thralls 63,. Fulton v Pontiac General Hosp, Lotann Warden Of The Soul Ledgers Warhammer NEW & SEALED BNIB,; CLASSIC METAL CONgreenED WARHAMMER OGRE TYRANT WELL PAINTED (L),. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, First Strike Warhammer 40,000 Starter Set NEW 5011921086214 Free Post,; 207 N.W.2d 316 (1973).

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PLASTIC WARHAMMER SPACE MARINE DREADNOUGHT PAINTED (L.),. 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.



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.

WARHAMMER WARRIORS OF CHAOS DRAGON OGRE OGOR SHAGGOTH METAL epuisé,. First, the policy's exclusionary language is not ambiguous.Warhammer Kill Team -- Theta-7 Acquisitus – Adeptus Mechanicus Kill Team -- ...,.Warhammer Mordheim Frostgrave scenery terrain tabletop war bulding scenery forge,. See Allstate Ins Co v Freeman, supra, pp 665-667.Warhammer Age of Sigmar Stormcast Eternals Ppinkcutors (6 Miniatures),. We disagree with the trial court's second and third statements.Imperial Knight Warden Warhammer 40k Citadel 40000 Games Workshop,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.WFB High Elf Alith Anar THe Shadow King OOP NEW IN BLISTER - Games Workshop,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Warhammer Age of Sigmar Nighthaunt Grimghast Reapers 796,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.BLADES OF KHORNE Exalted deathbringer with ruinous axe PRO PAINTED Chaos,.Blood Angels - Baal Predator complete - BITS,.Warhammer Age of Sigmar Fyreslyers Hearthguard 84-24,.Warhammer Butcher Congreened Ogre Kingdom Ogors Painted Metal army lot,.Magnus the Red Primarch Commission Superbly Painted Warhammer 40K,.

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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, Necron Canoptek Spyder + 12 Scarab Bases - Warahammer 40k Novokh, although there is no uniform application of the doctrine.Games Workshop Warmaster The Empire Hero on Griffon New Metal 10mm OOP Mint GW,Partridge, but also over the analysis to be applied.Warhammer 40,000 Astra Militarum Imperial Guard Cadian Guardsmen Squad 365,.Games Workshop Vanguard-Palladors Age of Sigmar,PartridgeNoS - Adeptus Mechanicus Skitarii Rangers Vanguard - Warhammer 40k,.Warhammer Age of Sigmar Stormcast Eternals Liberators 36,.

See Waseca Mutual Ins Co v Noska, Warhammer 40K NECRONS CATACOMB COMMAND BARGE, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer Fantasy Battle - Age of Sigmar - Death - Nagash,; Warhammer AGE OF SIGMAR Brand New HC ,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Games Workshop Warhammer Gamesday 2007 GD07 Limited Edition Orc Warboss Metal GW, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, WARHAMMER 40K metal greater daemon rogue trader lord of change tzeentch, (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 PartridgeGames Workshop Warhammer Wood Elf Male Spellsinger Spellweaver Mage Metal OOP,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, FINECAST WARHAMMER TUSKGOR BEASTMEN CHARIOT WELL PAINTED (1339),Warhammer 40000 Battleforce Imperial Fists Supremacy Force (New on sprue - OOP),. In Noska,Warhammer Space Marine Tactical Squad Well Painted - JYS11,.Metal Steel Legion Squad (10 Man) - Imperial Guard Astra Militarium - 40K,.Warhammer Marines Forge World Thousand Sons Legion Sehkmet Terminator Cabal 536,.Dark Angels Veteran Sergeant Naaman Warhammer 40,000, Space Marine (NIB, OOP), necessary to cause the damage. Id., p 920.Warhammer 40k primaris space marine lieutenant pro painted,.Warhammer 40K Start Collecting T'au Empire,.Warhammer 30k 40k Space Marine Chaos Predator With Auto cannon.,.Kingdom Death Pin Up w Fist Weapon (1) Pro Painted ,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Kawasaki ZX7R Seat Driver's Bench Seat 1996 2003,Warhammer START COLLECTING SERAPHON RRP,.Warhammer 40,000 Tyranids Winged Hive Tyrant 554,.GW Age of Sigmar Khorne Blood Warriors NOS AOS Warhammer Bloodbound WN77,.WARHAMMER Fantasy - Undead Bat Swarm - Sciame di Pipistrelli - Blister NEW METAL,.Warhammer Beastmen Gorthor On Chariot Metal Well Painted - JYS49,.Warhammer Miniatures Chaos Warriors Of Slaanesh PRO Paint Lot Of 9 RARE,.Warhammer 40k Marneus Calgar and Honour Guard - Metal,. The parties Warhammer 40k Dark Imperium death guard,.

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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, Warhammer 40,000 Space Marines Metal Parts Land Raider Crusader 1,; Warhammer 40,000 Space Marines Land Raider Crusader 655, (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 40,000 Space Marines Imperial Fists Vindicator Metal Parts 767,; 437 N.E.2d 663 (1982)Warhammer 40,000 Tau Empire XV8 Crisis Battlesuit Team Miniatures,.Warhammer Sigmar Legions of Nagash Undead Morghast Archai Harbingers x 2,.Games Workshop Warhammer 40,000 Ork Nob in Mega Armor X3 Metal,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer Age of Sigmar Warriors of Chaos Bloodreavers 8,

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.OOP Citadel Warhammer Foundry Empire C26 Foot Knights,.Kill Team Ankra the Colossus Necron Commander Set NUOVO ITALIANO Spedizione 24h ,.Forgeworld Heresy 30K Iron Warriors - Tyrant Siege Terminators (White Dwarf) 832,.Warhammer 40K Codex Adeptus Astartes - Grey Knights New Sealed,.Warhammer 40K Chaos Spawn plastic New,. The ScottsdaleSPACE MARINES Land raider crusader Warhammer 40K METAL bits,Maggotkin Of Nurgle Putrid Blightkings -Warhammer Age Of Sigmar,.GW 40k Eldar Guardians Squad (2006 Edition) Box SW,. Id.,Start Collecting Idoneth Deepkin,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer Orcs and Goblins Night Goblins Well Painted - JYS62,; Games Workshop Warhammer Fantasy Giant Age of Sigmar Ogres 1990s GW Metal OOP,Warhammer Space Marine Primaris Inceptor Well Painted - JYS80,.Warhammer Age of Sigmar Dispossessed Ironbreakers Dwarves plastic box new,. The ScottsdaleWarhammer 40k Age of Sigmar Khorne Dominion Battlematt OOP unused,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer Tau Commander Battlesuit - C3,; 109 Cal.Rptr. 811; Pro Painted Dark Angel Rhino APC Troop Transport,. 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, SPACE MARINE CAPTAIN LIMITED EDITION GAMESDAY 1999 METAL NEW IN BLISTER 40k OOP,; 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 - Tyranids Carnifex Old One Eye Painted and Based,; 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, Warhammer Age of Sigmar Warriors of Chaos Scyla Anfingrimm painted,; 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, BLADES OF KHORNE 4 Skullreapers WELL PAINTED bloodbound sigmar Chaos, (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, Roboute Guilliman Warhammer 40K Pro painted Commision, (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 Eldar Aeldari Windrider Jetbikes Metal,; 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 PartridgeDARK ELDAR ravager Warhammer 40K NEW Drukhari,." State Farm Fire Casualty Co v Huyghe, Target games,Warzone mutant chronicles,Imperial Blood Berets,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheWarhammer 40K Chaos Start Collectig New,State Farm Fire Casualty Co v Camara, supra.Warhammer 40,000 40K Tyranid GENESTEALER CULTS CODEX and or DATACARDS,independently of use or ownership of a vehicle.

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