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 LIZARDMEN - STEGADON & Skink Riders - COMPLETE -Warhammer Fantasy -Vintage 1990s,.Warhammer daemons Chaos Horrors metal oop army lot note not all have tails,.Warhammer 40K SPACE MARINES VANGUARD VETERAN SQUAD,.Warhammer 30,000 Space Marines Death Guard Cataphractii Terminators 850,.
The essential facts are not in dispute.Warhammer AoS 40k Temple of skulls painted scenery OOP,.Warhammer 40,000 - 70-41 - Start Collecting - Blood Angels - New. (Wargaming),. At approximately midnight, Clarke drove home in his automobile.Start Collecting Craftworlds Warhammer 40K NIB,.2000 White Dwarf Magazine Set Game Workshop All 12 Issues 240-251 Warhammer LOTR,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer 40,000 Adeptus Mechanicus Skitarii 59-10,.Warhammer GW Miniatures Chaos Beastmen Minotaurs PRO Painted Lot Of 8 OOP RARE,.The Lord of the Rings ME71. CORSAIRS OF UMBAR new sealed, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.
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Warhammer 40k chaos, Deathguard, poxwalker unit (10) Pro Painted,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Games Workshop Warhammer 40k Scribbus Wretch the Tallyman Painted WH40K Nurgle,.Games Workshop Warhammer 40K Age of Sigmar Stormcast Eternals Paladins,.Warhammer Age Of Sigmar Retributors Paladins Stormcast Eternals,Warhammer Beastmen Bestigors Metal Well Painted - JYS44,.Warhammer 40K Chaos Space Marine Lord Ahriman Painted Metal OOP,.
Deathwatch Terminator Space Marines Warhammer 40,000 Games Workshop 39-18,.Games Workshop Warhammer Fantasy Battle Warriors of Chaos Knights Painted Lot A,.Games Workshop Warhammer Bretonnian Grail Knight Champion on Foot Shield Fantasy,.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 death guard pro painted Typhus hearld of the plague made to order,.Warhammer 40K Tyranids Broodlord plastic new,.Start Collecting Skeleton Horde Warhammer Age of Sigmar 70-94,." Hazel Park v Potter, 169 Mich. App. 714, 718; Games Workshop Warhammer Bretonnian Men at Arms Mounted Knight Metal OOP F6,.Warhammer 40k Sisters of Battle Squad - 1 Superior + 4 Troops - metal - Lot H,. Pontiac School Dist v Bloomfield Twp, Warhammer 40,000 Chaos Space Marines Death Guard Poxwalkers on Sprue 403,; Flamers of tzeentch daemons Chaos Warhammer Age of Sigmar aos w40k,; 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. . . .
ESSEX MINIATURES DRAGON KIT,.Company Master of Dark Angels soldier painted action figure Warhammer 40K,Warhammer 40K - Vintage Orc Ork Heavy Weapons Figures,. Pontiac School Dist, supra.WARHAMMER 40K VALHALLAN HEAVY BOLTER WEAPONS TEAM BLISTER METAL IMPERIAL GUARD,.
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A motion for summary disposition under MCR 2.Games Workshop Warhammer Dwarves Dwarf Great Cannon Pro Painted Based Fantasy,.Warhammer Age of Sigmar Stormcast Eternals Liberators 92,.Warhammer 40k Limited 500 store primaris lieutenant space marine new sealed,. Fulton v Pontiac General Hosp, Games Workshop Warhammer 40k Space Marine Devastators Tactical Marines Squad Lot,; Warhammer 40K Space Marine Predator,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, KILL TEAM THE WRITHING SHADOW (ENGLISH),; 207 N.W.2d 316 (1973).
6 METAL PLASTIC OOP CHAOS KNIGHT LORD PAINT ARMY,. 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.
Age of Sigmar Objectives Marker Terrain Games Workshop Warhammer Aos,. First, the policy's exclusionary language is not ambiguous.Age of Sigmar Stormcast Eternals Paint Set of Citadel Paint Colours Tabletop GW,.WARHAMMER OGRE MUSICIAN PAINTED,. See Allstate Ins Co v Freeman, supra, pp 665-667.CLASSIC METAL WARHAMMER BRETONNIA GREEN KNIGHT WELL PAINTED (L),. We disagree with the trial court's second and third statements.Warhammer 40k , salamander space marine , pro painted .,.
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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 Eldar Avatar Khaine of Mensha Metal WH40K Games Workshop Complete,.
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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Talons Of The Emperor Set 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 40,000 - Chaos Space Marine Squad - NIB,.GW 40k Space Marines HQ Command Squad (2012 Edition) Box SW,.Warhammer 40,000 Eldar Craftworlds Windriders Jetbikes 68,.Citadel Games Workshop Warhammer Dwarf LE13 Inconvenienced Dwarf Limited Edition,.Games Workshop Warhammer Orcs Gorbad Ironclaw Finecast Figure Set Warboss 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, Kaldor draigo metal, grey knight, warhammer 40k, although there is no uniform application of the doctrine.Lot of Warhammer 40k Tanks,Partridge, but also over the analysis to be applied.GREY KNIGHTS Rhino congreened resin Warhammer 40K Space Marines WP,.WARHAMMER 40K AGE OF SIGMAR DAEMONS OF NURGLE HORTICULOUS SLIMUX - NEW & SEALED,PartridgeForge World. Warhammer 30k. Legio Custodes. TELEMON DREADNAUGHT. Painted.,.WARHAMMER 40k XV8 Crisis Battlesuit Team 56-07 NEW SEALED,.
See Waseca Mutual Ins Co v Noska, 1999 Chaos Daemonette on Steed of Slaanesh Musician Citadel Warhammer Seeker AOS, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer Fantasy Battle - Age of Sigmar - Death - Nagash,; CITADEL WARHAMMER OOP 1980s C27 TWO HEADED CHAOS TROLL,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Age of Sigmar AoS Soul Wars + Heros Pro-PAINTED Nighthaunt army, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, 25mm 28mm well painted DC comics Colossal Boy legion of super heroes champions, (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 PartridgeCitadel Nighthaunt Bladegheist Revenants Warhammer Age of Sigmar,.
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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, DAKOTA the LIGHT BROWN Horse- Ty 6 SOLID EYES Beanie Boos NEW with MINT TAGS,Warhammer Age of Sigmar Vampire Counts Zombies 442,. In Noska,Warhammer 40k. Classic Imperial Guard Squat Artillery Heavy Weapon Gun. Metal.,.OOP Citadel Warhammer Chaos Vampire Counts Undead Manfred von Carstein BNIB,.Warmaster Trolls Orcs & Goblins Chaos WT02,.Warhammer 40K SPACE MARINES VENERABLE DREADNOUGHT, necessary to cause the damage. Id., p 920.Warhammer adeptus Astarte space marine devastator squad,.NECRONS Canoptek spyder Warhammer 40K NEW,.Warhammer Age of Sigmar Orruks Orcs Goblins Metal Archers 64,.Warhammer Age of Sigmar Orcs Goblins Metal Stone River Troll (Pro Painted) OOP,. Id., p 923.
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In Jorgensen v Auto-Owners Ins Co, Warhammer Angeles Oscuros Dark Angels,Lord Minotaur - Reaper Miniatures Pro Painted,.Warhammer Dark Eldar Drazhar Well Painted,.WARHAMMER FORGE WORLD OOP BUST ORCS WAR BOSS PRO PAINTED LIMITED EDITION,.Warhammer 40K - In The Grim Darkness Of The Far Future There Is Only War (Books),.W H 40K 3 TIER CARRY STORAGE CASE - GAMES WORKSHOP,.Warhammer 30,000 Space Marines Contemptor Dreadnought 380,.Games Workshop Warhammer 40k Gangs of Commorragh Drukhari Dark Eldar NO MODELS,. The parties Deathwatch The Jericho Reach Fantasy Flight Games (Corporate Author),.
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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, Necron Start Collecting Box & Canoptek Wraiths (New) Games Workshop,; Warhammer 40k Inquisitor Malicant Miniature Games Workshop, (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, AOS Tempest of Souls Age of Sigmer Starter Set Box Set MIB,; 437 N.E.2d 663 (1982)Warhammer 40k Lord Solar Macharius BNIB New Sealed Metal Imperial Guards GW OOP,.Warhammer-OOP-Warhammer Armées Skavens version française,.START COLLECTING DAK ELDAR - GAMES WORKSHOP 70-45,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer Chaos Beastmen Khorngors & Bearer Metal PRO Painted Lot Of 8 OOP RARE,
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 MARINE BIKE SQUAD,.Warhammer 40k Forgeworld Stormbird PRO Painted to Order,.Warhammer Wargames Knights of chaos well painted 8 pcs Plastic metal painted L3,.Warhammer 40,000 Astra Militarum Imperial Guard Catachan Guardsmen 799,.WARHAMMER 40,000 CHAOS SPACE MARINES FORGE WORLD KHORNE DREADNOUGHT WORLD EATERS,. The ScottsdaleWarmaster Bretonnian Grail Knights Regiment New 10mm Games Workshop Bretonnia,Eldrad Ulthran Eldar Commission Superbly Painted 40K Warhammer,.Cadian Command Squad Plastic Warhammer 40K by Games Workshop,. Id.,Warhammer 40,000 Daemonhunters Grey Knights Terminators Paladins 897,.
The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, TERRAIN CRATE GANG WARZONE WARHAMMER GAMING TERRAIN - NEW,; Warhammer 40,000 Chaos Space Marines Thousand Sons Scarab Occult Terminators 181,Warhammer 40,000 Space Orks Nobz Mob 633,.Warhammer 40k Horus Heresy Rogue Trader original Rhino APC plastic painted Y172,. The ScottsdaleGames Workshop Warhammer 40k Necromunda Classic Bulkheads Space Hulk x16 WH40K,Partridge but its application as well:
In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer Eldar Jet Bikes Well painted - JYS61,; 109 Cal.Rptr. 811; Warhammer Age of Sigmar Idoneth Namarti Thralls 65,. 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 Lord of the Rings LoTR Citadel Paints Set Devlan Mud BNIB New OOP,; 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 40k Tau Commander Conversion,; 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, Games Workshop Warmaster Chaos Marauder Horsemen Knights Painted Metal 10mm OOP,; 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, Games Workshop Warhammer Harry The Hammer limited Edition, (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 C27 Troll Leaping Slomm Two Face Citadel Chaos Lead Metal Rare OOP, (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 Tau Empire Commander BNIB,; 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 PartridgePainted GW Warhammer 40K Mordian Iron Guard Lieutenant,." State Farm Fire Casualty Co v Huyghe, Warhammer 40k space marines mixed lot. Scouts, devastators, assault squad,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheWarhammer Age of Sigmar Warriors of Chaos Knights 45,State Farm Fire Casualty Co v Camara, supra.Warhammer 40,000 - Thousand Sons Rubric Marines,independently of use or ownership of a vehicle.
In Huyghe,Citadel Base Paint Set GW 60-22 NIB,Start Collecting Malignants Warhammer Age Of Sigmar,.Warhammer 40,000 Space Orks Deff Dread 523,.SPACE MARINES PRIMARIS INCEPTORS - GAMES WORKSHOP 48-79,. The HuygheWarhammer 40K Eldar Dire Avengers army lot,. 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 40000-SPACE MARINE-CAPTAIN MAGNETIZED MANY OPTIONS,.
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