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Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
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Ogors Ogres (3) - Ogre Kingdom (Age of Sigmar Fantasy Kings of War),
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 40k Tau Empire Pathfinder Team x10 (99120113040) (Painted),.Ork Wazbom Blastajet Bommer Games Workshop 50-32 [ Warhammer 40K ],.Warhammer Age of Sigmar, painted Stormcast Eternals, A Knight-Incantor,.Warhammer Space Marines Primaris Lieutenants Well Painted - JYS79,.

The essential facts are not in dispute.Warhammer 40K Games Day Space Marine Captain, Limited Edition (1999). Metal.,.Warhammer 40k Space Marines Celestial Lions Terminator Army Lot OOP 15 Models ,. At approximately midnight, Clarke drove home in his automobile.HUGE Multi-listing of Catachan Imperial Guard Blisters+Metal models Scarce OOP,.Warhammer Age of Sigmar Beastmen Beasts of Chaos Metal Centigor 56,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer 40k, Fantasy, AoS Chaos Daemons Khorne - 5 Flesh Hounds (Rogue Trader),.Warhammer Cypher lord of the fallen pro-painted model3,.WARHAMMER 40 000 ELDAR DRUKHARI RAZORWING PEINTURE PRO, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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KNIGHT MODELS DC DOOMSDAY METAL NEW,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Games Workshop Warhammer 40k Space Marines Techmarine Servo Harness Metal OOP,.Undead Mounted Wights on Skeleton Steeds x4 + Mounted Necromancer metal OOP 0802,.Warhammer Age of Sigmar Stormcast Eternals Judicators 162,Warhammer Age of Sigmar Orruks Orcs Goblins Metal Stone River Troll Troggoth 583,.PLASTIC SPACE MARINE LAND RAIDER PAINTED (L),.

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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.Citadel Miniatures Metal Minotaurs - 10 Different - Games Workshop - RARE OOP,.Warhammer 40,000 Tyranids Tyrannocyte 552,.WARHAMMER AGE OF SIGMAR GAMES WORKSHOP METAL HIGH ELF BATTLE STANDARD RARE OOP,." Hazel Park v Potter, 169 Mich. App. 714, 718; SPACE MARINES Ultramarines venerable dreadnought Warhammer 40K Painted,.Warhammer 40K Chaos Marines army lot Possessed mutations congreened 12,. Pontiac School Dist v Bloomfield Twp, Space Marine Heroes Bredher Sergeant Victorino Japan Exclusive Games Workshop GW,; Space Marines Primaris Reivers Warhammer 40,000 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. . . .

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A motion for summary disposition under MCR 2.Warhammer Gondor Avenger Bolt Thrower The Lord of the Rings resin new,.GW CITADEL MINIATURES 2000 ANNUAL Games Workshop,.PRO PAINTED EXTERMINATORS WARHAMMER 40K ULTRAMARINES,. Fulton v Pontiac General Hosp, Nauseous redbone, the Plague Surgeon Death Guard Painted Warhammer 40k,; Warhammer 40,000 Tyranid Biovore Pro Painted,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Games Workshop Warhammer 40k Eldar Farseer with Singing Spear New WH40K Finecast,; 207 N.W.2d 316 (1973).

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White Dwarf issue no16 dec jan 1979 rare in this excellent condition,. 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.Games Workshop Warhammer 40k Chaos Space Marines Raptor Raptors Squad Metal OOP,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Deathwatch Vanguard Space Marines Warhammer 40,000 Games Workshop 39-17,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.19 x Dragon Blades Warhammer Age of Sigmar,.Warhammer 40,000 Tyranids Hormagaunts Brood 603,.New Necron Cryptek Commission Superbly Painted Warhammer 40K,.Warhammer 30K 40K Horus Heresy Chaos Space Marine Mk3 Squad,.Kharadron Overlords Arkanaut Company Warhammer NEW & SEALED BNIB,.

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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, Chaos Dwarf Hero champion with Axe Warhammer Fantasy Dwarves 90s Metal OOP, although there is no uniform application of the doctrine.Warhammer Age of Sigmar Beastmen Beasts of Chaos Metal OOP Minotaur Doombull 69,Partridge, but also over the analysis to be applied.Warhammer Fantasy Empire Knights x 5 with Empire General OOP,.WARHAMMER DARK ELF, CROSSBOW, MULTI-LISTING,PartridgeC25 Fimir Noble Hero Unpainted Metal Citadel Warhammer Fantasy Battle 1980s,.Space Marine Predator - Warhammer 40000 - BRAND NEW,.

See Waseca Mutual Ins Co v Noska, Warhammer 40k, Grey Knights Terminators squad - painted to order, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, WARHAMMER 40K Magnetized Dark Angels 10 Hellblaster Marines PAINTED PICTURED PAP,; Wahammer Metal Wood Elf Eternal Guard,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, WARHAMMER FIRST STRIKE 40,000 STARTER SET NUEVO, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer Vampire Counts AoS Death Flesh-Eater Courts - 3 painted Crypt Horrors, (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.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Warhammer 40K SPACE MARINES PRIMARIS REIVERS,Warhammer Fantasy High Elf Wizard Lord Teclis Archmage Loremaster Metal OOP NIB,. In Noska,Metal Space Marine Devastator Blister - OOP - Warhammer 40K CC363,.Games Workshop Warhammer Skaven Screaming Bell BNIB New Boxed Fantasy Metal OOP,.KNIGHT MODELS DC TEEN TITANS SET METAL NEW,.Undead Skeleton Wight Champion Hero Warhammer Metal OOP, necessary to cause the damage. Id., p 920.Warhammer 40K Grey Knights Terminator Squad Well Made And Painted G153,.Warhammer Space Marines Tatical Squad Well Painted - WH2,.Warhammer 40k Space Marine grey knights terminators squad,.Age Of Sigmar Start Collecting Beasts of Chaos 70-79,. Id., p 923.

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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 AOS Great Unclean one Chaos Deamon Commission pro painted,; Warmaster Chaos Warriors New In Blister Games Workshop Metal OOP, (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, BAT SWARM- GAMES WORKSHOP -,; 437 N.E.2d 663 (1982)Warhammer 40K Eldar Guardians Squad 20 & Heavy Weapon Platform & 5 Dire Avengers,.Warhammer 40k Chaos Space Marines Nurgle Death Guard Scratchbuild Rhino Painted,.Warhammer Fantasy Undead Mounted Wights x12 part metal OOP,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer 40K CATACHAN JUNGLE TREES SUPER Painted JUNGLE PLANT X 5,

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 - STORMCAST ETERNALS PALADIN - NUOVO,.Warhammer 40,000 ELDAR WARP SPIDERS & Exarch, Citadel Finecast 5 Miniature NEW ,.Khorne Bloodbound Slaughter priests, bloodsecrators, and bits,.Bretonnia King Six Edition Metal OOP,.Seekers Of Slaanesh - Warhammer 40k & AoS - Painted To Order,. The ScottsdaleWarhammer necron deathmarks Pro painted made to order,Space Marines Primaris Repulsor Games Workshop 40K Panzer Tank Transport Navy,.GAMES WORKSHOP WARHAMMER AGE OF SIGMAR STORMCAST ETERNALS DICE RARE LIMITED NEW ,. Id.,Item scifi tyranid - 3 warriors 40k warhammer - (19556),.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Death Korps of Krieg Mars Alpha Pattern Leman Russ Vanquisher painted Warhammer,; Warhammer 40k Ravenwing Bike Squadron,Toys , games , miniatures & wargames , 28mm Napoleonic Spanish,.Warhammer THOUSAND SONS Scarab Occult Terminators,. The ScottsdaleWarhammer 40k 30k forge world Roboute Gulliman,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 Space Marines Vanguard Veterans Squad Finecast Unboxed OOP,; 109 Cal.Rptr. 811; WARHAMMER CITADEL GW OOP 1980s DWARF ENGINEER W TOOLBAG RARE MINER SAPPER METAL,. 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, GW WH40K HH Iron Warriors Cataphractii & Contemptor Dread fully painted tabletop,; 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 Orcs and Goblins Wolf Riders Well Painted - JYS63,; 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 Fantasy METAL ogre dragon SHAGGOTH - Registered Mail,; 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, MULTI-LISTING,WARHAMMER ORC BOAR RIDERS & BOARS, (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, AELDARI WEBWAY GATE 64-11, (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, Games Workshop Warhammer 40k Seraphim Superior Power Sword Sisters of Battle H2,; 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 PartridgeSERAPHON SAURUS KNIGHTS -Warhammer Fantasy-Age of Sigmar-WHFB-AoS-lizardmen,." State Farm Fire Casualty Co v Huyghe, Dark Heresy (Warhammer 40,000 Roleplay) - Core Rulebook excellent Condition,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheWarhammer Age of Sigmar Beastclaw Raiders Gutbusters Army Lot (U-B10S1 223165),State Farm Fire Casualty Co v Camara, supra.WARHAMMER 40K FIGURES LOT - ULTRAMARINES ,TROOP SPACE MARINES,ORKS ,42 SOLDIERS.,independently of use or ownership of a vehicle.

In Huyghe,Games Workshop Warhammer 40k Space Marines dwarfs bloodbowl Bits Spares GW,WARHAMMER 40,000 SPACE MARINES BLOOD ANGELS SANGUINARY GUARD PAINTED KILL TEAM,.Warhammer 40,000 - 47-19 - Astra Militarum Cadian H W Squad - New. (Wargaming),.Warhammer 40k TAU EMPIRE XV8 CRISIS BATTLESUITS GWS 56-07,. The HuygheStart Collecting Deathwatch Warhammer 40,000,. 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 Adeptus Mechanicus Sicarians -59-11-,.

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