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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 Fantasy Quest 54x OOP 1990s Goblin plastic Archers 5858,.Warhammer 40k vanguard veteran metal assult space marines blood angles Painted,.Games Workshop Warhammer Zacharias the Everliving on Dragon NIB Vampire Counts,.Warhammer 40k Genestealers Cults Wolfquad - Very well Painted ,.

The essential facts are not in dispute.OOP Citadel - Warhammer - Bretonnian Army OOP Oldhammer,.Warhammer Age of Sigmar Skaven Warpfire Thrower Teams x3 A,. At approximately midnight, Clarke drove home in his automobile.Citadel Warhammer C25 Minotaur Lord Ox Roar Chaos Champion of Ultimate Slaughter,.Forge World Warhammer 40k Bunker OOP,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.3 CLASSIC METAL BATTLEFLEET GOTHIC CHAOS INFIDEL CLASS RAIDERS PAINTED (131),.Warhammer 40k Tyranid Army Lot,.Warhammer. Beastmen Minotaurs, Orc Trolls, Yetis, Bigfoot. Congreened., Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Warhammer 40,000 Starter Set - First Strike,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Daemons Of Khorne Bloodcrushers Pro Painted warhammer wfb chaos,.Warhammer 40,000 Tyranids Hormagaunts Brood 82,.Warhammer 40k Tyranid Carnifex X 2 Nicely Painted,Warhammer 40k Genestealer Cult Abominant & Mindwyrm familiar KILL TEAM -1,.Start Collecting Daemons Of Nurgle -Warhammer Age Of Sigmar,.

Imperial Knights - Knight Preceptor Canis Rex - FREE SHIPPING,.Games Workshop Warhammer 40K Blood Angels Sanguinary Priest (2014),.Men at arms Command Bretonnia WARHAMMER METAL Grupo mando men armas Bretonia,.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.Chaos Space Navy Rhino Games Workshop Warhammer 40.000 40k GW,.Warhammer 40,000 - 48-15 - Space Marine Devastator Squad New (Wargaming),.GW Warhammer Fantasy Warhammer Armies - Skaven (2009 Edition) SC EX,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer Fantasy Dwarf Slayers x 9 - Metal,.Warhammer 40,0000 Haruspex Exocrine GW Plastic NIB,. Pontiac School Dist v Bloomfield Twp, Citadel Collectors Series Evil Fighters Chaos Games Workshop Metal Figures New,; WARHAMMER 40k - Tyranid Ravener Brood - Nidiata di Tiranidi Divoratori NEW NSF3,; 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 Imperial Guard Hydra Well Painted,.Warhammer 40,000 Daemonhunters Metal Sisters of Battle Squad 135,Warmaster Orcs & Goblins Goblins WG03,. Pontiac School Dist, supra.PredECTORS RETRIBUTORS STORMCAST ETERNALS WARHAMMER AOS PRO PAINTED,.

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A motion for summary disposition under MCR 2.Warhammer Fantasy Marco Colombo Citizens Empire Limited Edition Columbo - New,.Games Workshop Warhammer Bretonnian Pegasus BNIB Finecast Resin Bretonnia OOP,.Space marine sternguard x4 oop metal,. Fulton v Pontiac General Hosp, Warhammer 40,000 Tau Empire Crisis Battlesuit Team 56,; Warhammer Fantasy Lizardmen Skinks x9 metal OOP,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warhammer 30,000 Space Marines Thousand Sons Cataphractii Terminators 550,; 207 N.W.2d 316 (1973).

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WARHAMMER 40K NURGLE DEATHGUARD CHAOS SPACE MARINES ARMY 2500+ PTS PAINTED PAP,. 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.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Painted Primaris Space Marine, Reavers Kill Team - Warhammer 40k. 5 man squad,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Warhammer Tiranidi 2 in Metallo Introvabili ,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.C25 Fimir Noble Hero Unpainted Metal Citadel Warhammer Fantasy Battle 1980s,.Games Workshop Warhammer Nighthaunt Cairn Wrath Pro Painted GW Undead Nagash,.Warhammer 40K Kill Team Theta-7 Acquisitus 102-46-60,.GLOOMSPITE GITZ SQUIG HERD - GAMES WORKSHOP 89-48,.Warhammer 40000 Book Bundle Space Marines, Chaos, Imperial, Orks, Baal Rulebooks,.

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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 Age of Sigmar Warriors of Chaos Lord on Manticore 73, although there is no uniform application of the doctrine.Warhammer Magister - pro painted,Partridge, but also over the analysis to be applied.Warhammer Space Marine Dark Angels Primaris Intercessors Well Painted - JYS71,.Visions of Heresy (Horus Heresy),PartridgeWarhammer Age of Sigmar Dwarf Dwarves Auric Hearthguard 79,.Warhammer Fantasy - Skaven Plague Monks - 28mm,.

See Waseca Mutual Ins Co v Noska, LIZARDMEN Skink priest starpriest METAL PRO PAINTED Warhammer Fantasy, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer 40K - Orks Codex - NEW FREE SHIPPING,; Warhammer Age of Sigmar Warriors of Chaos Warhounds 632,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Warhammer 40,000 Tau Empire Broadside Battlesuit 10, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, WARHAMMER 40,000 SPACE MARINES BLOOD ANGELS CHAPLAIN LEMARTES BLISTER METAL, (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 PartridgeImperial Guard Rare Pose - OOP - Warhammer 40K XX410,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Warhammer 40K - Tau Empire XV8 Crisis Battlesuit Team - Unboxed,Metal Space Wolf Heavy Weapon X3 - OOP - Warhammer 40K X336,. In Noska,GW Warhammer Fantasy Orcs & Goblins 14 Arrer Boyz With Crossbows Painted Metal B,.Warhammer 40k - Shadowspear Vanguard Space Marine -Complete,.Citadel GW Warhammer Skarsnik and Gobbla Goblin Squig OOP Metal Goblin Orcs,.Warhammer 40k Ultramarines Dice Set New and sealed OOP , necessary to cause the damage. Id., p 920.Warhammer Fantasy HIGH ELF PRINCE IMRIK DRAGON LORD UNPAINTED & UNASSEMBLED,.Games Workshop Warhammer 40k Orks Sqwadron Commander Games Day Forgeworld Pilot,.Games Workshop Warhammer Freeguild Reiksguard Knights Regiment Painted Empire,.Vintage Citadel GW Grenadier Pre Slotta Miniatures OOP Skaven & Hoard D&D RARE,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Imperial Fist hero 40k 30k techmarine Forgelord.,Warhammer 40,000 -- Tyranid - Harpy -- GW-51-14,.Games Workshop Warhammer 40k Imperial Guard sizern Rough Riders Rider Desert B2,.Space Marines Mega-Listing, Ultra marines,Blood Angels,Dark Angels Warhammer A1,.Cygor Beasts of Chaos Pro Painted WFB age of sigmar,.Gloomspite Gitz Sneaky Snufflers with Snufflesquigs Games Workshop Aos Goblins,.Warhammer 40k - Blood Angels Furioso Dreadnought (B) Expertly Painted,.Warhammer 40K Limited Edition Space Marine Captain Games Day 2008 in Blister,. The parties 15x C01 warriors maiden fighters female citadel GW compendium pre-slotta fighter,.

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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, CITADEL MINIATURES GAMES WORKSHOP 32-08 - THE HOBBIT HUNTER ORCS - NUOVO,; TAU EMPIRE FIRE WARRIORS - GAMES WORKSHOP 56-06, (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, Triumvirate Primarch Roboute Guilliman warhammer 40K COMMISSION painting,; 437 N.E.2d 663 (1982)Warhammer Vampie Counts Chainrasp Horde Well Painted - JYS48,.Warhammer Age of Sigmar Orks Fellwater Troggoths plastic new,.HERALD OF OBLIVION WARHAMMER 40,000 GAMEBOOK JONATHAN GREEN 40K GAMES WORKSHOP,. The Illinois Court of Appeals, relying on Partridge, supra,Games Workshop Warhammer 40k Chaos Space Marine Cultists X20,

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 START COLLECTING DAEMONS OF KHORNE,.GAMES WORKSHOP WARHAMMER 40,000 ELDAR AELDARI CRAFTWORLDS WAR WALKER SQUADRON,.Warhammer Chaos Knights x6 Regiment Metal Plastic Job Lot Games Workshop Painted,.Warhammer Fantasy Dwarf Duardin AOS KOW Nicely Painted Miners OOP,.Warhammer 40,000 Chaos Space Marines Death Guard Assault Terminators 881,. The ScottsdaleGames Workshop Warhammer 40k Chaos Space Marines Fabius Bile with Enhanced Guard,Warhammer Deasth guard - Plague Marines -43-55-,.VAMPIRE COUNTS SKELETONS - WARHAMMER AGE OF SIGMAR - GAMES WORKSHOP ,. Id.,XV88 Broadside Battlesuit- Warhammer 40k 40,000 Miniatures,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer 40,000 Kill Team – The Exalted Scythe (Necron) New Free Shipping,; Warhammer 40K Burning Of Prospero Horus Heresy Boardgame Sealed New,Grey Knights Nemesis Dreadknight Warhammer 40k,.Paladins of Grey Knights soldier painted action figure miniature Warhammer 40K,. The ScottsdaleWARHAMMER IMPERIAL STEAM TANK (NO COMMANDER),Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer 40k scenery terrain moonscape craters board set B,; 109 Cal.Rptr. 811; Custodian Guard 10 Man Squad Custodes Commission Superbly Painted Warhammer 40K,. 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, LIZARDMEN 24 saurus warriors Warhammer Fantasy,; 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, Bretonian Warhammer Fantasy Damsel Mounted,; 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, Death Guard Deathshroud Bodyguard 40k Games Workshop 20% off UK rrp,; 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 Start Collecting Fyreslayers - GW-70-85, (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, Terradon Riders x4 Metal Warhammer Lizardmen Seraphon Army Games Workshop AOS, (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 Sector Imperialis Basilicanum Games Workshop 64-48,; 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 Partridge18 CLASSIC METAL HIGH ELF SWORD MASTERS OF HOETH PAINTED (1228),." State Farm Fire Casualty Co v Huyghe, OOP Citadel Warhammer Chaos Metal Skaven Rat Swarms,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheWarhammer 40,000 Cities of Death Imperial Sector Scenery Terrain 418,State Farm Fire Casualty Co v Camara, supra.Multi Spire A - Tabletop Wargaming, D&D 3D printed hill scatter terrain,independently of use or ownership of a vehicle.

In Huyghe,Forgeworld Konrad Curze Pro Painted Commission Horus Heresy Warhammer 40k,Warhammer 40k Necromunda Classic Escher Gang Leader Gangers juve painted Y138,. Classic Gnoblars lot Ogre Kingdoms Ogors Goblins Warhammer Fantasy,.VINTAGE PRE SLOTTA MAINLY RARE OOP CITADEL METAL MINIATURE DWARFS VIKING JOB LOT,. The HuygheWarhammer 40k Ork boyz, lootas, nobz,. 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 Rogue Trader Rulebook, Bulkheads and Objectives New B,.

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For example, in Partridge,Stormcast - Vanguard-Palladors (3) - Warhammer Age of Sigmar,. In Jorgensen, supra,Space Navy Land Raider Crusader Redeemer Games Workshop 40k 48-30 Landraider,. Therefore, the non-auto-related negligence had been established.Warhammer Slaves to darkness - Chaos warriors -83-06-,. The Illinois court in U S Fidelity Guarantee, supra,Dwarf Master Engineer Sapper Hammer & Pistol Metal Dwarves Games Workshop OOP,. That is the same situation in this case.Age of Sigmar Grand Alliance of Order Dark Elf Scourgerunner Chariot - NOS,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Spartan Assault Tank Pro Painted to Order Forge World Horus Heresy Warhammer 40k,. Detroit Edison, supra.

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