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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 Warhammer Empire Volkmar the Grim Grand Theogonist bare untouched metal,.Middle-Earth LORD OF THE RINGS Mordor Isengard Troll (On sale 1st Sept),.Start Collecting Blood Angels Warhammer 40,000 Games Workshop 70-41,.Warhammer 40,000 Tau Empire Crisis Battlesuits 756,.

The essential facts are not in dispute.Warhammer 40k blood angels army,.WARHAMMER 40,000 40K SPACE MARINES BLOOD ANGELS DEATH COMPANY RHINO TANK PAINTED,. At approximately midnight, Clarke drove home in his automobile.Warhammer Clanrat Spears (Shield) and Plague Wind Mortar team Pro Painted,.DARK ANGELS Devastator squad missile launcher PRO PAINTED Warhammer 40K,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer Chaos - Spawn of Chaos,.GW Warhammer 40K Codex Space Marines (6th Edition) Hard Cover Shrink Wrapped ,.THE IMPERIAL INFANTRYMAN'S HANDBOOK MUNITORUM MANUAL BOOK ASTRA MILITARUM, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Warhammer Storm of Chaos Albion Fen Beasts Painted Fenbeasts Metal,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Warhammer 40K Thousand Sons Rubric Marines 43-35,.Stormcast golden Liberators - age of sigmar COMMISSION pro painting,.Mordheim - Countess Marianna Chevaux - Metal MO07,Warhammer 40,000 Ultra Marines Company Champion With Company Vetecans,.Warhammer Age of Sigmar Lizardmen Seraphon Metal Kroq Gar on Carnosaur 552,.

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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.Thousand Sons - Scarab Occult Terminators - Warhammer 40k Nuovo Sigillato,.Vintage 1996 Warhammer Lizardman Saurus Citadel Miniatures Games Workshop,.Warhammer 40K TAU EMPIRE FIRE WARRIORS Box Set Brand New ,." Hazel Park v Potter, 169 Mich. App. 714, 718; Games Workshop Warhammer Undead Vampire Counts Sartosan Pirate of Sartosa Metal,.Warhammer Daemon Plague Bearers well painted,. Pontiac School Dist v Bloomfield Twp, Warhammer 40,000 - Tau Empire XV88 Broadside Battlesuit with Two Drones,; Games Workshop Warhammer C29 Young Green Dragon Citadel Dragons Drake Metal 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 2.2003 PR12 White Dwarf Limited Edition Miniature Citadel Warhammer Army Lord MIB,.Chaos Space Marines 40K CRIMSON Slaughter FREE SHIPPING MULTI colorD,.Warhammer Fantasy Chaos Dragon, Metal -Vintage, OOP, AoS, 9th Age, KoW,. Fulton v Pontiac General Hosp, TYRANIDS Start collecting Warhammer 40K NIB NEW Collecting,; Juego de mesa Blood Bowl,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Eldar Revenant Titan with Pulsars - Warhammer 40K - Aeldari Asuryani Craftworlds,; 207 N.W.2d 316 (1973).

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Warhammer 40k Space Marines Bikes Land Speeder Job Lot Painted WH40K Army OOP,. 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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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 40,000 Daemonhunters Grey Knights Terminator Paladins Squad 44,. First, the policy's exclusionary language is not ambiguous.1999 Undead Wight Champion Command Group Citadel Skeleton Warhammer Army Lord GW,.Warhammer Space Marine Lysander Well Painted,. See Allstate Ins Co v Freeman, supra, pp 665-667.Kill Team Genestealer Cults Kelermorph Ghyrson Starn Miniature Only - NOS -,. We disagree with the trial court's second and third statements.Games Workshop Fantasy Ogre Kingdoms Scraplauncher Catapult,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Forgeworld scenery Imperial Command Post sizern Dugout 40k Terrain oop rare,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, THOUSAND SONS MAGNUS THE RED,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Warhammer Chaos Space Marines Sorcerer On Disk Well Painted - JYS81,.FORGEWORLD OPEN DAY 2013 EMPIRE WARRIOR PRIEST WELL PAINTED (1044),.Warhammer Stormcast Errant Questor knight Warhammer World exclusive,.Space Marine Heroes Bredher Ebellius Japan Exclusive Games Workshop New Marines,.Warhammer Age Of Sigmar Forgeworld Gameday Battle Hammer Priest HQ Painted,.

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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, Games Workshop Warhammer Fantasy Battle Chaos Daemons Tzeentch Flamers C, although there is no uniform application of the doctrine.1993 Dwarf King Kazador Command Group Champion Norse Nordic Citadel Northern GW,Partridge, but also over the analysis to be applied.Warhammer MM93 Chaos Beastmaster with Hounds Marauder Job Lot Games Workshop,.Deathworld Barbed venomgorse Games Workshop Warhammer 40k Dark Eldar Terrain,PartridgeWarhammer Age of Sigmar Dwarf Dwarves Metal Giant Slayers with Dragon Slayer 41,.Sisters of Battle SISTER SERAPHIM SQUAD x5 Superior Metal Adeptas Sgoldritas Lot,.

See Waseca Mutual Ins Co v Noska, GW Warhammer 40K Rogue Trader Era Chaos Renegade Marine Bolter 15 Metal OOP 1988, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer 40k - Genestealer Cults Neophyte Hybrids x22,; Warhammer 40K Drukhari Mandrakes resin New,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, GW Warhammer 40K Warhammer Siege (1991 Edition) SC VG+, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer Chaos Daemons Herald, Slaanesh Fiend, Prince Preying Mantis Woman, (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 40,000 Space Marines Blood Angels Veteran Vanguard Assault Squad 920,Dark Angels Ravenwing Command Squad,. In Noska,Genestealer Cults Acolyte Hybrids Workshop Warhammer 40.000 Tyranids 51-51 40K,.Orcs & Goblins 2 x Night Goblin Shamen Shaman well painted metal models OOP,.Warhammer Fantasy Skaven Giant Rats x 11 - Metal,.Imperial Fist Forgeworld Large Figurine, necessary to cause the damage. Id., p 920.Warhammer Age of Sigmar Dogs of War Oglah Khan & Standard Hobgoblin Wolfboyz 65,.KR Multicase to hold GW Tau Devilfish,Hammerhead,XV8,Kroot,40 Troops (E-016),.Warhammer AOS - Ironjawz Gordrakk, Fist of Gork Painted & Based,.Saurus Oldblood on Carnosaur (New On Sprue) - Warhammer AOS Lizardmen Seraphon,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, ⇨ 15 chaos warhounds warhammer age of sigmar magnetic bases,Warhammer 40K Space Marines Veterans Ultramarines resin New,.Warhammer Age of Sigmar Empire BNIB OOP Handgunners 41,.XV88 Broadside Battlesuit of Tau Empire painted action figure Warhammer 40K,.Lotto Scenari Goblins, Stoks scenery 10 Pz. Warhammer, Age of Sigmar,.⭐ AoS Slaanesh Herald WARHAMMER Games Workshop Model Chaos Citadel Age of Sigmar,.Gloomspite Gitz Gobbapalooza Games Workshop Brand New 99120209054,.Warhammer 40,000 Space Marines Ultramarines Vanguard Assault Squad 22,. The parties Warhammer Age of Sigmar Ogors Ogre Kingdoms Metal Butcher 217,.

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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 Tau Empire Crisis Battlesuits 328,; Drunken Dwarfs Booze Bros Iron Claw Citadel Games Workshop 1987, (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 Age Of Sigmar - Grand Alliance Chaos,; 437 N.E.2d 663 (1982)Warhammer Imperial Guard Commissar Well Painted - B1,.Warhammer 40k Space Marine Vanguard Veteran Squad - NEW - Free SHIPPING,.Primaris Redemptor Dreadnought Sprues - Warhammer 40k Space Marine NOS,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer Age of Sigmar Bretonnian Metal King Louen Leoncoeur on Hippogriff 560,

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 Orruks Orcs Ironjawz Gore Gruntas 632,.PLASTIC WARHAMMER ORK DEFF DREAD PAINTED (L),.Warhammer Age of Sigmar Warriors of Chaos Marauders Flails 465,.EPIC Warhammer 40K Citadel Miniatures 8831 Epic Ork Scorcha Unpainted 1994 NEW,.Wrath of Kings Shael Han Wrath Box plastic nuevo new,. The ScottsdaleWarhammer 40k 6 Tau Crisis Suits,Warhammer Age of Sigmar START COLLECTING DAEMONS OF NURGLE,.WARHAMMER 40,000 NECROMUNDA IMPERIAL GUARD PLAGUE ZOMBIES POX WALKERS CULTISTS,. Id.,Warhammer Age Of Sigmar -- Bonesplitterz - Savage Orruks -- GW-89-19,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Games Workshop Warhammer 40k Tyranids Raveners x 7,; Games Workshop Warhammer 40k Mixed Bits Job Lot Army Spares Space Marines Orks,Start Collecting Militarum Tempestus Scions Warhammer 40k NEW,.18 CLASSIC METAL HIGH ELF SWORD MASTERS OF HOETH PAINTED (1228),. The ScottsdaleWarhammer Age of Sigmar Chaos Varanguard plastic new,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, MORDHEIM CHAOS HOUND OOP Warhounds Beasts Of Chaos Warhammer Beastman Army Lot1,; 109 Cal.Rptr. 811; WFB - TMC Painted Chaos Warshrine - Games Workshop Age of Sigmar,. 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, Games Workshop Warhammer 40k Tyranids Tyranid Zoanthrope New Metal Figure WH40K,; 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 40,000 40k Adeptus Titanicus The Horus Heresy Rules Set 400-15-60,; 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 40K Classic Space Marine Rhino OOP GW Citadel Rogue Trader Marines,; 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, 10X ORCOS blackS DE METAL ORCOS Y GOBLINS WARHAMMER AOS, (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, Herdstone warhammer age of sigmar COMMISSION painting, (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 Grey Knights Lord Caldor Draigo M-1 pro-painted,; 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 AoS Bretonnia Spare Horses (6) (1) OOP,." State Farm Fire Casualty Co v Huyghe, SPACE HULK BOARDGAME NEW ++SEALED++ 4th Edition ENGLISH Version,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheGRENADIER MODELS FANTASY LORDS,DRAGONS OF THE EMERALD IDOL, BOX SET,State Farm Fire Casualty Co v Camara, supra.Warhammer 40k Tyranids Trygon x1,independently of use or ownership of a vehicle.

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