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 WARHAMMER 40K ARMY CHAOS SPACE MARINES PLAGUE MARINE SQUAD PAINTED,.Space Marines Assault Squad Adeptus Astartes Warhammer 40k NEW ,.WarHammer 40K Dark Angels RavenWing Army Set,.Warhammer 40k Tau Empire Tau’nar Army Very Well Painted Riptide Battlesuit ,.
The essential facts are not in dispute.Dark Age Chains Barrow Slavers Leadership Box Warhammer 40k Necromunda Guilders,.Start Collecting Astra Militarum. Warhammer 40k. 20% off UK rrp.,. At approximately midnight, Clarke drove home in his automobile.Games Workshop Warhammer Louen LeonCoeur King of Bretonnians in box b,.Warhammer Goblin Doom Diver Catapult vintage metal set OOP,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer Lizardmen Saurus Scar Veteran Battle Standard Bearer (Metal, Ltd Ed),.Warhammer 40k - Space Marines - Red Scorpions Tactical Squad (212),.Warhammer 40k GW Games Workshop Eldar Dire Avengers 10x Figures Models New 46-15, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.
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Warhammer 40k Thousand Sons KAIROS FATEWEAVER plastic well painted (RLL 200),. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Warhammer Codex Dark Angels -44-01-60-,.Games Workshop Warhammer Archaon Books 1 & 2 The End Times New Sealed OOP,.Warhammer AOS Fantasy Destruction Ogors Ogres Ironguts,Age Of Sigmar flesh eater courts half Carrion Empire Plus Warscroll Cards,.Warhammer 40k - Dark Angels - Chaplain Limited Edition Seraphicus + Azreal (273),.
Bloodmaster, Herald Of Khorne Painted Warhammer 40k AOS,.Beasts of Chaos Warherds Bullgors Games Workshop Age of Sigmar Chaos Beastmen,.Warhammer 40k. Orks. Kaptin Badrukk,.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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Warhammer Age of Sigmar Lizardmen Seraphon Metal OOP Stegadon 482,. We agree in part.
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A motion for summary disposition pursuant to MCR 2.Warhammer 40K Eldar Craftworlds Vyper Squadron plastic New,.Games Workshop Warhammer The White Dwarf Metal Dwarves OOP Army Pro Painted GW,.Games Workshop - Adeptus Mechanicus Ironstrider - 99120116017 - 59-12,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer Fantasy Chaos Dwarves Dwarf Warriors Axemen Axe Man x 10,.Warhammer Classic Citadel Garagrim Ironfist Slayer - Metal Oop,. Pontiac School Dist v Bloomfield Twp, 1984 Copper Dragon Lords Grenadier Models 2508 Dungeons & Dragons AD&D Wyrm,; Citadel ADD55 Hobgoblin Games Workshop Advanced Dungeons Dragons Hobgoblins C3,; 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 - WARHAMMER 40K= AGE OF SIGMAR - DARK ELF ASSASSIN,.Skitarii Vanguard of Skitarii soldier painted action figure Warhammer 40K,.Warhammer Tyranid Termagants Well Painted,. Fulton v Pontiac General Hosp, Warhammer 40k Eldar Wave serpent pro painted any craft world colours,; Warhammer 40k AOS Painted Bloodthirster blood thirster metal,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warhammer 40000 - Index Astartes - Index Chaotica volumes - very rare - oop,; 207 N.W.2d 316 (1973).
Warhammer 40K Inquisitor Coteaz. 1 metal miniature, PRO PAINT w dec stand,. 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.
WARHAMMER AGE OF SIGMAR STORMCAST ETERNALS PALADINS BNIB,
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.]
LARGE COLLECTION PART USED DWARF DISPOSSESSED PLASTIC WARHAMMER SPRUES (BOX),
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 A0S - CHAOS DAEMONS ARMY MANY UNITS TO CHOOSE FROM,. First, the policy's exclusionary language is not ambiguous.Phoenix Lord Karandras of Eldar soldier painted action figure Warhammer 40K,.Warhammer 40k Chaos Space Marines Renegade Traitor Tzeentch Heavy Weapons GW OOP,. See Allstate Ins Co v Freeman, supra, pp 665-667.Games Workshop Warhammer 40k Ork Gorkanaut Miniature 50-19 NIB,. We disagree with the trial court's second and third statements.Warhammer 40,000 Outpost Pythos IV Games workshop Scenery Brand New,.
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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 40K Astra Militarum Mechanised Company,.
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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Warhammer 40k Army Death Guard Foetid Bloat Drone Painted,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.GW WARHAMMER 40K Dark Angels Space Marine Army - Pro-Painted,.2 x Warhammer 40k guide books - Battlegroup rule book & Armies of Great Britain,.Warhammer Age of Sigmar Skaven Clanrats 700,.Warhammer 40k Tau Empire AX39 Sun Shark Bomber painted miniature,.Games Workshop Warhammer Undead Vampire Counts Manfred Von Carstein Mounted OOP,.
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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, Tyranid Gargoyle Brood - Tyranids Warhammer 40k 40,000 Games Workshop Model New , although there is no uniform application of the doctrine.GW Warhammer AoS Lizardmen Seraphon Terradon Riders x2 Painted,Partridge, but also over the analysis to be applied.NEW warhammer age of sigmar Stormcast Eternals Paladins Retributors brand new,.Dankhold Troggoth Gloomspite Gitz Warhammer Age of Sigmar NIB,PartridgeUltramarines Devastators X4 Metal Parts Well Painted warhammer 40k OOP,.BRETONNIA 2 grail knights METAL Warhammer Fantasy no shield,.
See Waseca Mutual Ins Co v Noska, PredECTORS RETRIBUTORS STORMCAST ETERNALS WARHAMMER AOS PRO PAINTED, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer 40k 20 ORK BOYZ -PAINTED,; 1 x Stegadon Engine of the Gods (Metal OOP) Seraphon warhammer Age of Sigmar,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Warhammer Chaos Space Marine Deathguard 30k Terminators - B3, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, WARHAMMER 40K SQUAD SPACE MARINES BLOOD ANGELS TACTICAL SQUAD X 10, (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 40,000 - Orks Megatrakk Scrapjet,.
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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, GW 40K DARK ANGELS RAVENWING BIKERS X 5. PART PAINTED. WHITE 742,Warhammer Fantasy Dwarves Duardin AoS KoW Thane Bsb OOP Nicely PAINTED Resin,. In Noska,BOOK - RPG Games Workshop Warhammer 40,000 Dark Heresy Blood Of Martyrs Roleplay,.Genestealer Cults Neophyte Hybrids Cult Tyranids Warhammer 40k NEW,.Warhammer Space Marine Ultramarines Rhino Pro Painted,.Warhammer 40,000 Space Marines Land Raider 31, necessary to cause the damage. Id., p 920.Citadel Miniatures Warhammer Imperial Knights Panther Standard Bearer In Blister,.Chaos Greater Daemon Of Khorne Games Workshop NOS Factory Sealed Rare Look,.Warhammer 30k Space Marines Army NIB Forge World Limited Edition Praetor ,.WARHAMMER AOS DWARF DAEMON SLAYER GAMES DAY 2006 NEW STILL SEALED OOP RARE,. Id., p 923.
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In Jorgensen v Auto-Owners Ins Co, Orc Quarters - Tabletop Scenics,Warhammer 40K Imperial Knights Armiger Warglaives 54-17,.Rogue Trader Navigator Warhammer 40k pysker adventurer Citadel Miniatures 80's,.Warhammer 40k Job Lot, Space Marines, Orks, Paints,Various Figures, Land Raider.,.Horus Heresy - Bredherhood of the storm - Hardcover Signed Novel Warhammer,.Reaver Titan With Melta Cannon & Chainfist Warhammer 40k,.Ravener Brood of Tyranids soldier painted action figure miniature Warhammer 40K,.Warhammer Fantasy Lizardmen Skinks x9 metal OOP,. The parties Warhammer 40K IMPERIAL KNIGHTS KNIGHT CASTELLAN,.
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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 Age of Sigmar Warriors of Chaos Gorebeast Chariot 754,; Games Workshop Warhammer Blightwar BNIB Nurgle vs Stormcast Eternals BNIB New GW, (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, Games Workshop Warhammer The End Times Limited Edition Thanquol Brand New Sealed,; 437 N.E.2d 663 (1982)Warhammer 40,000 Dark Eldar Drukhari Kabalite Warriors 807,.Gnoblar Guerrieri dei Regni degli Ogri WARHAMMER Citadel Games Workshop,.GW 40k Ork Tankbusta Boyz Primed Incomplete,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer 40k metal unknown Rare Classic oop,
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 Space Marine Primaris Lieutenant Well Painted - JYS11,.LIZARDMEN Kroxigor x 2 well painted metal models Warhammer OOP (C),.12x C35 Chaos warrior knights citadel GW games workshop fighters slotta,.30 PLASTIC WARHAMMER GOBLIN SPEARMEN PAINTED (959),.CHAOS WARRIORS Hedonists Of Slaanesh Painted Slaves To Darkness Army Warhammer,. The ScottsdaleGames Workshop Warmaster Karl Franz Empire Storm of Chaos Characters New OOP,Warhammer 40k Ultramarines Captain Sicarius BNIB New OOP Metal Figure WH40K GW,.Warhammer Age of Sigmar Skaven Clanrats 549,. Id.,Terradon Riders Seraphon age of sigmar warhammer COMMISSION pro painting,.
The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer 40,000 Astra Militarum Imperial Guard Cadian Guardsmen Vets Squad 429,; Warhammer 40,000 - 25th Anniversary Model - Crimson Fists Captain Rogue Trader,Warhammer Age of Sigmar Ogors Ogre Kingdoms Metal Ninja Maneater 685,.Games Workshop Grey Knights Paladin Squad 57-09,. The ScottsdaleWarhammer 40K Thousand Sons Exalted Sorcerers,Partridge but its application as well:
In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Fantasy Football - ORC TEAM 12 Players with 4 Blitzers for Blood Bowl- Meiko,; 109 Cal.Rptr. 811; Warhammer 40k Painted Ork Gorkanaut and or Morkanaut Painted Commission SVC,. 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 40,000 The Guard of the Crimson King collection bundle lot army x,; 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 Age of Sigmar Ogors Ogre Kingdoms Mournfang Cavalry 643,; 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 Ogors Ogre Kingdoms Mournfang Cavalry,; 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, 1997 Chaos Daemonette of Slaanesh Command A Citadel Warhammer Demon Devil MIB GW, (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 Fantasy Age Of Sigmar Army Ogre Kingdoms Ogors x6 Painted, (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 30k Marines Forge World Death Guard Pads Cataphractii Terminators 280,; 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 PartridgeKing Louen Leoncoeur the Lionhearted on Hippogriff, Warhammer Bretonnia resin,." State Farm Fire Casualty Co v Huyghe, Warhammer 40,000 Tau Empire Commander 249,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheWarhammer 40k Space Marine Dreadnought and Devastator Squad,State Farm Fire Casualty Co v Camara, supra.Warhammer Astra Militarum Forge World Renegade Militia Preachers of Nurgle 224,independently of use or ownership of a vehicle.
In Huyghe,Warhammer Age of Sigmar Orruks Orcs Goblins Gred Boar Chariot 723,Warhammer 40K Horus Heresy Thousand Sons AHRIMAN ARCH-SORCERER of Tzeentch,.Warhammer 40K Cult Mechanicus (Adeptus) Limited Collectors Edition Codex,.Games Workshop Warhammer Age of Sigmar 2nd Edition Soul Wars,. The HuygheGames Workshop Warhammer 40K Space Marines Tactical Squad WH40K New BNIB Marine,. 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 40k Ork Boxed Sets X2 (NIB),.
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