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 Games Workshop Warhammer 40k Space Marines Scout Bikes Upgrade Components Metal,.Warhammer 40,000 Kill Team Kill Team Mordelai - English Games Workshop New,.Warhammer 40,000 Astra Militarum Imperial Guard Tempestus Scions 310,.Warhammer Fantasy Dogs of War Empire Dogs of War Mydas The Mean & Paymaster,.

The essential facts are not in dispute.Warhammer 40,000 -- Grey Knights - Strike Squad -- GW-57-08,.Warhammer Vintage Goblin Army Bundle 15 Painted Figures Joblot CW 1999 Citadel,. At approximately midnight, Clarke drove home in his automobile.Warhammer 40K Adeptus Astartes - Space Marine Devastator Squad GWS 48-15,.SKAVEN ARMY- CLANRATS X 22 WELL PAINTED PLASTIC z2,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.GAMES WORKSHOP WARHAMMER 40,000 CHAOS SPACE MARINES BODYS METAL JOBLOT,.SPACE MARINE RAVEN GUARD SUCCESSORS RAPTORS TERRAHAWKS TERMINATOR ASSAULT SQUAD,.Warhammer Mordheim Sisters Of Sigmar Leader Sister Augur. Metal., Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Box New Mordheim Witch Hunters Games Workshop,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Warhammer 40K Dark Angels Sammael Master of the Ravenwing Metal New BNIB OOP GW,.Warhammer 40K Metal IMPERIAL GUARD ASTRA MILITARUM VOSTROYAN COMMAND SQUAD,.Dark Angels Deathwing Command Squad,Daemon Prince Chaos Pro Painted,.TOWN HOUSE (1) - dargo000,.

Onager Dunecrawler - Warhammer 40k 40,000 Games Workshop Model New ,.Space Navy Cybot Dreadnought Games Workshop Warhammer 40.000 GW 40k 48-26,.CHAOS RHINO - GAMES WORKSHOP 43-11,.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.Warhammer 40k, Fantasy, & AoS Chaos Daemons Tzeentch - Kairos Fateweaver (oop),.DARK ANGELS 5 deathwing terminators terminator squad WELL PAINTED 40K,.Dark Angels Tactical marines squad KILL TEAM Plasma Cannon heavy bolter,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer 40k Death Guard Plague Marines x5 (Painted),.Games Workshop Warhammer 40k C'tan Shard of The Nightbringer New Necrons WH40K,. Pontiac School Dist v Bloomfield Twp, Games Workshop Warhammer 40k Space Marines Servitors x4 Gun Metal OOP Painted,; Space Marine Heroes Bredher Ebellius Japan Exclusive Games Workshop New Marines,; 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 40k Harlequins CODEX ELDAR FACTORY SEALED Games Workshop NEW ITA,.Warhammer 40k Eldar Aeldari Start Collecting Craftworld box set NIS,.Tyranids Codex (German) Games Workshop Warhammer 40000 tyranids 8TH NEW,. Fulton v Pontiac General Hosp, Warhammer Chaos Daemons Exalted Flamer On Chariot Well Painted,; Painted Miniature Ork Stormboyz Warhammer 40K,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, WARHAMMER 40K BATTLE FOR MACRAGGE SPACE MARINES & TYRANIDS RARE OOP INCOMPLETE,; 207 N.W.2d 316 (1973).

WARHAMMER Fantasy - Skaven Gutter Runners - 8517F - NEW - OUT OF PRODUCTION ,. 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.

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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 SNOTLINGS SNOTROOM MUSHLING ,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, TYRANIDS Flying hive tyrant WELL PAINTED Warhammer 40K,; 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 40K painted Sergeant Chronus,.Pro Painted Warhammer 40,000 Damned Legionnaire with Multi Melta,.1 x Start Collecting Seraphon Warhammer Age Of Sigmar,.Warhammer 40k shadowspear Daemonkin Chaos Space Marines Master of Possession,.Warhammer 30k, Sanguinius, Primarch of the Blood Angels - Commission,.

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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 Age of Sigmar Stormcast Eternals Liberators + free glue w .90, although there is no uniform application of the doctrine.Games Workshop Lord-Aquilor Age of Sigmar,Partridge, but also over the analysis to be applied.Games Workshop Warhammer Bretonnian Questing Knight Spotter Kid Metal Figure GW,.Imperial Guard Catachan jungle fighter Heavy Weapon missile launchers Autocannon,PartridgeWARHAMMER AGE OF SIGMAR START COLLECTING STORMCAST VANGUARD - NEW,.Warhammer 40,000 Tyranids Trygon 490,.

See Waseca Mutual Ins Co v Noska, METAL TYRANT MANEATER BUTCHER SLAUGHTERMASTER OGRE KINGDOMS ARMY, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer 40k Space Marines Land Raider Hull,; Games Workshop Warhammer 40k Space Marines Veterans Sergeants Squad Metal OOP B2,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, STORMCAST ETERNALS 5 liberators PRO PAINTED Warhammer Sigmar, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Dungeons & Dragons Chainmail Thalos Combo Box, Nuevo, (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 40,000 Astra Militarum Imperial Guard Cadian Heavy Weapons Teams 139,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Warhammer Age of Sigmar Daemons of Chaos Lord of Change 84,Chaos Characters Blister - OOP - Warmaster Warhammer CC397,. In Noska,Necron Warriors With Canoptek Scarabs - New & Sealed Warhammer 40,000 GW 40K,.Warhammer 40,000 Tau Empire Crisis Battlesuits 756,.WARLORDS BOX SET 1992 SPACE MARINE SUPPLEMENT GAMES WORKSHOP,.OOP Citadel Warhammer Metal Empire Imperial Tilean Crossbowmen, necessary to cause the damage. Id., p 920.Warhammer 40k - Kill Team Necrons  Pro Painted Commision  ,.Warhammer 40k Start Collecting Craftworlds New Free UK P&P,.Warhammer 40,000 Space Marines Forge World Pads Red Scorpions Assault Squad 69,.WARHAMMER 40K BATTLESCAPE TERRAIN SCENERY OOP Kit Blood Angels Rhino PAINTED IH,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Orc Quarters - Tabletop Scenics,Games Workshop Warhammer Dwarf Gyrocopter Resin Finecast Well Dwarves OOP GW,.Warhammer 40k chaos space marines Terminators metal oop (6) assorted weapons,.Forgeworld OOP Solar Auxilia Surgeon-Primus Aevos Jovan & Medicae Orderlies,.Warhammer 40k space marine drop pods,.Zinge Industries Steampunk Gun Carriages x3 and guns x3 Field Battery S-ART04 B,.Kawasaki Zx6r Sozius Duo Passenger 1998 2002,.Games Workshop lot de 6 figurines de Spaces Marines Rogue Trader OOP 1985,. The parties Warhammer 40,000 Astra Militarum Imperial Guard Leman Russ Battle Tank 614,.

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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, Rare Jeu de société de rôle - 8 Masters Revenge,; Limited Edition 40K Witch Hunter Inquisitor • Gideon Lorr NIB Rare 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, 1987 Skaven Stormvermin with Halberd S1 Chaos Ratmen Citadel Warhammer Army MIB,; 437 N.E.2d 663 (1982)Warhammer 40,000 Daemonhunters Grey Knights Terminators Squad 376,.Games Workshop Warhammer 40K Space Marines Tactical Squad WH40K New BNIB Marine,.Warhammer 40k - Blood Angels - Blood Angel Furioso Dreadnought Metal,. The Illinois Court of Appeals, relying on Partridge, supra,Citadel Miniatures 'Citadel Autumn 89',

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 40k Space Marines Blooad Angels Stormraven,.Warhammer Long Drong Dwarf Slayer Musician Pirates Metal Figure Dwarves OOP,.Games Workshop Warhammer Wargor Standard Bearer Icon Beastmen Limited Metal OOP,.Citadel metal (plastic wheels) Empire Steam Tank 1990s OOP,.Warhammer and Lord of The Rings Job Lot,. The ScottsdaleWarhammer Space Marine Dark Angels Deathwing Terminators Well Painted,CRAFTWORLDS 5 windriders Warhammer Eldar,.GW CITADEL METAL MINIATURES, WH 40K LTD EDITION SPACE MARINE STANDARD BEARER,. Id.,Warhammer Chaos Space Marines Myphitic Blight-hauler Well Painted - A4,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, 49 DWARF WARRIORS Plastic Dwarfs Duardin Dispossessed Army Painted Warhammer 73,; Vintage Citadel GW Grenadier Pre Slotta Miniatures OOP Skaven & Hoard D&D RARE,Warhammer Age of Sigmar Lizardmen Seraphon Metal Stegadon 84,.Warhammer 40k Blood Angels Astorath the Grim Metal,. The ScottsdaleNighthaunt Spirit Hosts Warhammer Age of Sigmar Games Workshop Ghosts Ghosts,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer Age of Sigmar Warriors of Chaos 140,; 109 Cal.Rptr. 811; Games Workshop Warhammer 40k Blood Angels Bredher Holst Sideshow Statues NIB OOP,. 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 40K NURGLE DEATHGUARD CHAOS SPACE MARINES ARMY 2500+ PTS PAINTED PAP,; 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, 17 x Warriors of Chaos painted plastic models with command (some incomplete),; 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 40,000 Space Marines Stormtalon Gunship 10,; 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 Fantasy Orcs and Goblins Spider Riders x19 3101, (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, Papo pa po ankylosaur PVC PA55015, (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 Age of Sigmar Bretonnian Pegasus Knight 8,; 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 - Space marines Forgeworld Red scorpion Assault squad,." State Farm Fire Casualty Co v Huyghe, Warhammer Age of Sigmar Flesh-Eating Courts Crypt Flayers,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheWarhammer Fantasy Lizardmen Age of Sigmar Seraphon Tenehuini & Oxayotl Metal OOP,State Farm Fire Casualty Co v Camara, supra.Warhammer 40K Gangs of Commorragh boxed set unused,independently of use or ownership of a vehicle.

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Next, it is important to clarify that PartridgeRogue Trader Space Hulk 1st Edition Genestealer Cult Hybrids x8 OOP,.Warhammer 40K Tyranid Trygon Mawloc Tyranids plastic New,.

For example, in Partridge,CITADEL SAW 66-08 (Games Workshop Warhammer Citadel) Brand New Sealed,. In Jorgensen, supra,Idoneth Deepkin Namarti Reavers Warhammer NEW & SEALED BNIB,. Therefore, the non-auto-related negligence had been established.Warhammer 40k Imperial Knights 8th Edition Codex Game Workshop 40,000 New HC ,. The Illinois court in U S Fidelity Guarantee, supra,Warhammer 40,000 Chaos Space Marines Nurgle Plague Marines Death Guard 847,. That is the same situation in this case.LE Santa Dwarf Chester Store 1985 unreleased Citadel Miniature Rare OOP 150,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Warhammer Vampire Counts AoS Death Flesh-Eater Courts - 3 painted Crypt Horrors,. Detroit Edison, supra.

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