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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 Warhammer Lizardmen Terradon Riders x3 Games Workshop plastic,.Vintage Dwarf Kings Throne of Power Warhammer Fantasy Citadel Dwarven Artifact,.2nd - 8th EDIZIONE High Elf Army ELFI ALTI WARHAMMER FANTASY CITADEL GW,.Fantasy Football - ORC TEAM 12 Players for Blood Bowl - Necrom Studio,.

The essential facts are not in dispute.Warhammer Morgul Knights The Lord of the Rings plastic new,.Warhammer 40,000 Space Marines Blood Angels Honour Guard Assault Squad 897,. At approximately midnight, Clarke drove home in his automobile.Warhammer 40k- Officio Assassinorum Culexus Assassin -Brand New in Box,.Warhammer 40,000 Militarum Auxilla Bullgryns (Sealed),. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.8 Beastmen Warriors Games Workshop Warhammer Fantasy Battle Plastic Painted Aos,.Warhammer Age Of Sigmar Slaves To Darkness Chaos Warriors X 12,.REALM OF CHAOS SLAVES TO DARKNESS WARHAMMER WORLD UK ONLY EXCLUSIVE RE RELEASE, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Warhammer 40,000 Tyranids Termagants Brood 351,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Tanith Gaunt's Ghosts Astra Militarum Warhammer 40k Metal OOP,.Warhammer Age of Sigmar Start Collecting Flesh-eater Courts plastic box new,.Space Marines Primaris Captain Games Workshop Warhammer 40.000 GW 48-61 Navy,EPIC Warhammer 40K Citadel Miniatures 8831 Epic Ork Scorcha Unpainted 1994 NEW,.10x Wargamming terrain pine tree forest,.

Warhammer 40K Astra Militarum Inquisidor Karamazov new,.AOS Battle Magic Expansion Malign Sorcery Box Set MIB,.Pre-Painted - Warhammer 40k Nurgle- Transport Standard Bearing Rhino,.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.Epic 40K IMPERIAL REAVER TITAN - new unused - OOP Games Workshop,.Warhammer 40K Ork Trassembled & well painted,.Warhammer Fantasy High Elf Eltharion on Stormwing Griffon OOP Metal,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer 40k Pro Painted Tau Pathfinders X10 With Pulse Drone,.Warhammer 40,000 Space Marines Raven Guard Assault Squad 614,. Pontiac School Dist v Bloomfield Twp, Warhammer 40k Adeptus Mechanicus Ironstrider Games Workshop Citadel,; Idoneth Deepkin Volturnos High King Of the Deep Akhelian Age of Sigmar NEW,; 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. . . .

Warhammer 40K Forge World Imperial Knights Castigator Any House Chapter PAINTING,.Citadel C29 Giant Spider Warhammer 1980's Gigantic Spider,Transformers Movie Ultimate Bumblebee Complete Leader Class,. Pontiac School Dist, supra.Shield-Captain of Adeptus Custodes soldier painted action figure Warhammer 40K,.

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A motion for summary disposition under MCR 2.Games Workshop Warhammer 40k Fantasy Mixed Bits Job Lot Army Hundreds of Spares,.Warhammer 40,000 Tau Empire KV128 Stormsurge 24,.Warhammer Space Marines Iron Warriors Forge World Legion Volkite Caliver 522,. Fulton v Pontiac General Hosp, 20x Dwarf Hammerers Pro Painted oldhammer wfb warhammer,; Warhammer 40,000 Space Marines Metal Dreadnought 595,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warmaster Orcs & Goblins Orc Warriors WO06,; 207 N.W.2d 316 (1973).

Warhammer AoS Chaos Disciples of Tzeentch Changeling (1) Pro Painted ,. 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.

OOP VINTAGE WARHAMMER 40,000 K MIXED LOT,

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.

Warhammer 40k Shadowspear - Space Marine Vanguard Set,. First, the policy's exclusionary language is not ambiguous.Militarum Auxilla Bullgryns New Astra Militarum,.Age of Sigmar Nighthaunt Knight of Shrouds, Guardian of Souls and Spirit Torment,. See Allstate Ins Co v Freeman, supra, pp 665-667.Warhammer Quest Games Workshop Dread King on Throne Catacombs of Terror 226,. We disagree with the trial court's second and third statements.1997 Chaos Pink Horror Command Drummer Citadel Warhammer Daemon of Tzeentch GW,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Warhammer Age of Sigmar Bretonnian Pegasus Knight 45,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Herald daemons khorne age of sigmar model aos warhammer,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Citadel Miniatures FIGHTERS TEMPLARS new sealed,.Warhammer The Lord of the Rings - Winged Nazgul -30-38-,.Games Workshop Warhammer 40k Chaos Cultists Space Marines Army Figures WH40K,.Warhammer Chaos Space Marine Deathguard 30k Terminators - B3,.Edge Entertainment Stellar Destroyer Class Gladiator, Expansion for Star Wars...,.

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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, Kommandant Atanas Arconovich & Standard Privateer Press Brand New PIP33128, although there is no uniform application of the doctrine.Special Edition Anniversary Space Marine (2016),Partridge, but also over the analysis to be applied.Warhammer World Exclusive Space Marine HQ Command Tanks,.Metal Space Marine Scouts X5 - OOP - Rare Warhammer 40K X64,PartridgeDARK ANGELS vindicator tank Warhammer 40K Marines,.OOP Citadel Warhammer Chaos Lizardmen C32 Slann Cold One Rider Quinine,.

See Waseca Mutual Ins Co v Noska, 1998 Chaos Spawn A Games Workshop Citadel Warhammer Army Mutant 40K Horde Beast, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Placa boina carlista réplica guerra civil 1936-1939 - carlismo,; Grail Knight Champion on foot OOP metal Games Workshop model from the 1990s,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Codex Space Marines Primaris Marine Warhammer 40k 8th 8e BOOK NEW, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer Orcs And Goblins Wierdnob Shaman Well Painted, (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 Primaris space marine 10 man Reivers pro painted made to order,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Warhammer 40k space marine rogue trader rare classic oop,GAMES WORKSHOP, CITADEL CATALOGUES MULTI-LISTING,. In Noska,Warhammer AOS - Dwarf Marauder Miners - Metal - Games Workshop,.Warhammer 40K Imperial Guard 24x Heavy Weapons Teams Shelf E,.STORMCAST ETERNALS VANGUARD-HUNTERS - Games Workshop 9628,.WARHAMMER 40,000 40K SPACE MARINES BLOOD ANGELS PRIMARIS LIBRARIAN PAINTED, necessary to cause the damage. Id., p 920.Dark Angels Deathwing Command Squad Warhammer 40k Games Workshop 20% off UK rrp,.WARHAMMER 40k Templar Knights Imperial fists marines Army pro painted Huge Lot ,.Codex Dark Angels - FREE SHIPPING,.Games Workshop Warhammer 40K Space Wolf Redemptor Pro Painted Commission,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, WARHAMMER BEASTS OF CHAOS BULLGOR X4 DOOMBULL OOP AGE OF SIGMAR PEWTER GW35 CGNT,KHORGORATH - Painted Chaos Blades Of Khorne Army Warhammer Age Of Sigmar Lot5G,.Warhammer 40k Metal Imperial Guard Catachan Squad Painted,.Warhammer 40,000 Space Orks Warbiker Mob 946,.Warhammer 40,000 Space Marines Dark Angels Deathwing Command Squad 339,.Warhammer 40K Space Marines Primaris Intercessors 48-75,.Warhammer 40,000 Necrons Warriors 636,.Warhammer 40k War Zone Damocles Mont'ka Hard Cover Set 35,. The parties Warhammer Long Drong Slayer Pirates Dogs of War Regiments of Reknown OOP & Rare,.

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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, Lot of 15 White Dwarf Games Magazine Issues 2004 - 2006 Includes Issue,; Edición limitada caballero caos 54 mm metal Games Workshop con certificado, (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, Blades of Khorne Skull Altar Games Workshop Warhammer Ageofsigmar Chaos Terrain,; 437 N.E.2d 663 (1982)Warhammer Skaven Warlord Pro Painted Limited Edition Games Day Army 2011 A13,.Huge Dark Angels Multi-listing of MINT Metal collectors models Scarce OOP,.Exemplar Theme Box Privateer Press Brand New PIP32133,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer 40K Space Marines Primaris Repulsor 48-78,

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 Soul Wars starter set Units - select one or more,.Warhammer 40,000 Adeptus Mechanicus Kastelan Robots 92,.Games Workshop Warmaster Chaos Hounds Well Painted Metal 10mm OOP Fantasy,.START COLLECTING Warhammer 40k FLASH-EATERS COURTS 14 miniature Citadel GAMES WO,.Warhammer Fantasy Dwarf Warriors Clansmen x10 Marauder metal OOP,. The ScottsdaleWarhammer Thousand sons space marine Ahriman pro painted made to order,Games Workshop Warhammer 40k Space Marines Scouts 5 Metal Figures WH40K Squad,.Warhammer - Vampire Counts - METAL Varghulf (REF 3) UNPAINTED Exc Con Free Post,. Id.,Warhammer 40,000 - WQ-03-60 - Warhammer Quest - Shadows Over Hammerhal Game,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer Space Marines Death Watch Watch Master Well Painted,; SCYLA ANFINNGRIM OOP Spawn Of Chaos Slaves To Darkness Khorne Metal Warhammer,Warhammer Fantasy Age of Sigmar Army Ogre Kingdoms Butcher Painted,.Warhammer 40K - Tau Empire XV95 Ghostkeel Battlesuit,. The ScottsdaleWarhammer Specialist Games Fantasy Seige Defenders Set New And Sealed Rare,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Adeptus Custodes Dice x 20-Warhammer 40k-NISB-OOP-Space Marine,; 109 Cal.Rptr. 811; Miniature medieval house for Warhammer FB or the Age of Sigmar. X-Fine Detail,. 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, Large Multi-listing of Mordian Iron Guard Metal models Heavy Weapons+troops 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, Games Workshop 99120101208 Space Marines Easy To Build Primaris Aggressors,; 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 Marines Forge Father Vulkan Hestan Metal Oop,; 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 40,000 Chaos Space Marines Daemon Prince 160, (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, Rogue Trader Space Marine Landspeeder Lot A 40K Metal Land Speeder Warhammer, (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 40k Space Marine Blood Angels Company Command NEW,; 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 C'tan Shard of the Nightbringer Necrons Ctan PAINTED AS PICTURED,." State Farm Fire Casualty Co v Huyghe, FINECAST WARHAMMER OGRE OGORS BUTCHER WELL PAINTED (1096),; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheDark Elf Morathi Sorceress Skull Staff Darkling Age of Sigmar Warhammer RESIN,State Farm Fire Casualty Co v Camara, supra.Warhammer 40,000 Tyranids Winged Hive Tyrant 554,independently of use or ownership of a vehicle.

In Huyghe,Games Workshop Warhammer 40k Eldar Falcon Grav Tank NIB New Classic Edition 90s,Warhammer Sisters of Battle Battle Squad - JYS36,.Warhammer 40,000 Hulk Space Marines Blood Angels Terminator Captain 827,.Warhammer 40k 30k Forgeworld Alpha Legion Head Hunters combiweapons Lot Y573,. The HuygheGames Workshop Warhammer Dwarf Longbeards Warriors Clansmen Dwarves Army Lot,. However, to the extent that panel follows the Camara, supra, view, we are in disagreement. We note that application of the dual causation view employed in HuygheWarhammer 40,000 Space Marines Blood Angels Sternguard Vets Veterans Squad 271,.

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For example, in Partridge,1996 Chaos Great Unclean One Greater Daemon of Nurgle Citadel Warhammer Demon GW,. In Jorgensen, supra,2007 Dark Elf Dreadlord with Great Weapon Citadel Command Drow Warhammer D&D MIB,. Therefore, the non-auto-related negligence had been established.Warhammer. Classic Chaos Dragon. Zombie Dragon. 2 Heads . Metal Oop.,. The Illinois court in U S Fidelity Guarantee, supra,Deathwatch Kill Team and Conversion Bits Warhammer 40k Games Workshop,. That is the same situation in this case.Warhammer Age Of Sigmar Metal Miniatures Knights Of Chaos PRO Painted Lot Of 3,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.LORD KALDOR DRAIGO - METAL NEW SPRUE OOP GREY KNIGHTS INQUISITION DAEMONHUNTERS,. Detroit Edison, supra.

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