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Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
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BNIB WARHAMMER DARK ELF SORCERESS FOOT AND MOUNTED (763),
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 Games Workshop Warhammer Age of Sigmar Demons of Khorne Bloodletters,.Undead Zombie Necromancer Rare Iron Claw Metal Games workshop 80s OOP,.Dwarves dwarfs 20 metal warhammer fantasy sigmar (30933),.RARE 1991 Warhammer 40,000 40k COMPILATION guide book Soft Cover GAMES WORKSHOP,.

The essential facts are not in dispute.World Eaters Legion Rampager Squad miniature Warhammer 40k,.Warhammer Fantasy Chaos Dwarves Dwarf Warriors Axemen Axe Man x 10,. At approximately midnight, Clarke drove home in his automobile.1994 Chaos Dwarf Astragoth Command 75885 1 Citadel Warhammer Army Sorcerer Mage,.Warhammer 40k Astra Militarum Imperial Guard - Forgeworld Leman Russ Conqueror,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer 40,000 Astra Militarum Imperial Guard Hellhound 30,.Warhammer Age of Sigmar Lizardmen Seraphon Saurus Temple Guard 500,.Kill Team Primaris Space Marines Any Chapter Painted Commission Warhammer 40K, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Games Workshop Warhammer 40,000 Harlequin Sky Weavers,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Warhammer 40K Tyranid Hive Guard x 2,.Warhammer 40000 Necron Warriors (2),.Warhammer 40k Warhammer 30k ADEPTUS CUSTODES CUSTODIAN Nª 2 GUARD PAINTED,Warhammer Age of Sigmar Chaos Khorne Wrathmongers plastic new,.Warhammer 40k Tyranid Hormagaunts x 17,.

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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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Visions of Heresy (Horus Heresy),. We agree in part.

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A motion for summary disposition pursuant to MCR 2.Seraphon Lizardmen Skink Priests and Saurus Hero,.Warhammer 40K Imperial Knights Armiger Warglaives 54-17,.Start Collecting Tyranids - FREE SHIPPING,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer style Steampunk Steam Tank,.START COLLECTING T'AU EMPIRE,. Pontiac School Dist v Bloomfield Twp, Grey Knight Strike Squad Warhammer 40k,; Warhammer Space Marine Dark Angels Veterans Well Painted,; 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. . . .

DRAGON OGRE CITADEL WARHAMMER DS2 CHAOS 1987,.Warhammer 40,000 Necrons Necron Deathmarks 657,Games Workshop Warhammer 40,000 Canis Wolfborn,. Pontiac School Dist, supra.WARHAMMER AGE OF SIGMAR DESOLATED TOWNSHIP - NEW AND SEALED,.

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A motion for summary disposition under MCR 2.Eye of Medusa by David Guymer space marine warhammer 40k hardcover,.Warhammer 40k Space Marines White Scars Scout Bikes Grenade Launchers,.Warhammer 40k - Forgeworld - Orks - Gred Tank- Painted b,. Fulton v Pontiac General Hosp, Warhammer Fantasy Bretonnian Empire Undead Shields x 20,; Warhammer 40,000 40k Conquest Issues 27 and 28 - Death Guard Chaos Rhino,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Space Marines Roboute Guilliman Warhammer 40k Games Workshop 20% off UK rrp,; 207 N.W.2d 316 (1973).

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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.Warhammer 40k Orks Ork Genestealer Hybrid Hybrids Freebooter Pirate 1990s WH40K,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Start Collecting Orcs Warhammer 40.000 Ork Games Workshop GW 40k Ork 70-50 Army,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.'Eavy Metal Complete Guide to Painting Citadel Miniatures 1993 Warhammer 40k FB,.Warhammer 40k Great Unclean one Chaos Daemons Age of Sigmar,.Multi-listing Colonel Schaeffer's Last Chancers metal models Imperial Guard OOP,.Warhammer Chaos Space Marine Mutilators Pro Painted,.Warhammer Age of Sigmar Scyla Anfingrimm resin box new,.

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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 KHORNE BLOODBOUND BLOOD WARRIORS, although there is no uniform application of the doctrine.Plastic Demolisher Tank Box Warhammer 40K by Games Workshop,Partridge, but also over the analysis to be applied.Warhammer WFB citadel 2006 metal plastic unpainted part made CHAOS KNIGHTS x 5,.WARHAMMER AGE OF SIGMAR START COLLECTING DAEMONS OF KHORNE SET - NEW & SEALED,PartridgeWarhammer Forge World Death Guard Legion Despoiler Special Weapons Squad 361,.Warhammer 40k primaris space marine lieutenant pro painted,.

See Waseca Mutual Ins Co v Noska, Great Unclean One Daemons of Nurgle Age of Sigmar COMMISSION painting, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Placa boina carlista réplica guerra civil 1936-1939 - carlismo,; Necromunda Bulkhead Doors Warhammer 40,000 NEW & SEALED 40K BNIB,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Winged Hive Tyrant Nids Tyranids 40k Warhammer, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer Space Marine Primaris Helblasters Well Painted - JYS79, (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 PartridgeWarmaster - Bretonnian Hero on Pegasus - 10mm - Painted,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Citadel Warhammer 40K red Trader Squats Thudd Gun. WD101 Dwarves rt304 BNIB,Warhammer Fantasy Games Workshop Miniatures Plastic Figures Painted Lot Of 4,. In Noska,Warhammer 40K Adeptus Mechanicus KASTELAN ROBOTS (Datasmith & 2x Robots) New,.Know No Fear A Warhammer 40,000 Starter Set,.Warhammer Fantasy Battle Orc Warboss On War Wyvern OOP Metal Games Workshop,.Dark Angels Azrael Ezekiel Cypher Balthasar Veterans Mixed Lot - Warhammer 40k, necessary to cause the damage. Id., p 920.WHFB FANTASY LIMITED EDITION GAMES DAY 2009 EXALTED HERO OF CHAOS RARE OOP,.Chaos Space Marines Haarken Worldclaimer Herald of the Apocalypse - 43-23,.BRETONNIA lord knight on pegasus METAL PAINTED Duke bohemond Fantasy,.Warhammer 40,000 Chaos Space Marines Nurgle Poxwalkers Death Guard 656,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Games Workshop Warhammer Age of Sigmar Stormcast Eternals Paladins BNIB Sealed,1987 Imperial Dwarf 0308 15 D5 King Command Group Officer Leader General Hero GW,.WARHAMMER AGE OF SIGMAR GAMES WORKSHOP DARK ELF MALEKITH ON DRAGON METAL PLASTIC,.WARHAMMER BATTLE - Boite d'Armée Chaos 1994 V4-V5,.Mutant Chronicles Warzone Blood Berets Target Games OOP Rare 40K 100% complete.,.Codex Adeptus Mechanicus Skitarii Cult Mechanicus 8th BOOK Warhammer 40k NEW,.Warhammer Space Marines Fists Forge World & Metal Parts Tactical Squad 736,.OOP Citadel Warhammer Empire Araby Dogs Of War Al Muktar Desert Dog NIB,. The parties Games Workshop Mighty Empires Boxed Game OOP,.

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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, RAT MEN SKAVEN CITADEL WARHAMMER,; Azhag the Slaughterer on War Wyvern Very Well Painted Orc Hero Warhammer 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, Eldar Farseer Skyrunner of Eldar soldier painted action figure Warhammer 40K,; 437 N.E.2d 663 (1982)Games Workshop Empire Freeguild Men at Arms Infantry Classic 1990s Army Lot GW,.Warhammer 40,000 Adeptus Mechanicus Dunecrawler Onager 748,.Games Workshop Warhammer 40k Chaos Space Marines Night Lord Raptor Raptors Metal,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer Age of Sigmar AOS - Stormcast Eternals Stardrake,

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.Games Workshop Warhammer Dwarf Hammerer Runesmith Grung Metal Dwarves OOP GW NIB,.SPACE MARINES 5 Terminator squad close combat PRO PAINTED Red Scorpions Army,.Yamaha FZ 750 Type 2mg GENESIS SEAT SEAT CUSHION SEAT SEAT CUSHION SEAT,.Warhammer 40k Imperial Guard Armageddon Steel Legion Squad - Metal,.Warhammer Classic Ogre Ogor - 8x Ironguts Maneaters (Jes Goodwin C23),. The ScottsdaleWarhammer 40,000 Adeptus Mechanicus Onager Dunecrawler 830,Games Workshop Warhammer Fantasy Empire Gryphon Legion Musician Kislev Knights,.METAL STEAM TANK VERY HEAVY + BSB + CAPTAIN ON HORSE ARMY EMPIRE PAINT,. Id.,Trollkin War Wagon Battle Engine,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer 40,000 Tyranids Tervigon Ready to Base 613,; Citadel Gloomspite Gitz Mangler Squigs Warhammer Age Of Sigmar,Classic Games Workshop One Boar Chariot And Rider OOP 1980s,.32 x Empire Army State Troops with Rifles part metal Freeguild Free Peoples OOP,. The ScottsdaleSpace Marine Centurion Devastator Squad Warhammer 40k 40,000 Games Workshop New ,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer Warriors of Chaos Daemon Prince of Slaanesh Azazel,; 109 Cal.Rptr. 811; GW WARHAMMER BOITE DEMON MAJEUR DE TZEENCH 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, Warhammer 40k - Adeptus Titanicus Reaver Battle Titan - Brand New ,; 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 Tau Empire Crisis Battlesuits 20,; 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 Citadel Warhammer 40,000 40K Space Marine Scouts Metal 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, Target Games Chronopia Sons of Kronos Stag Elk Rider Metal Figures on Blister +, (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, Tyranid Broodlord Tyranids Genestealer Cult Cults Warhammer 40k NEW, (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, OOP Citadel Warhammer Marauder Chaos MB7 Marauder Giant,; 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 40,000 Tyranids Carnifex Hive Tyrant 640,." State Farm Fire Casualty Co v Huyghe, WARHAMMER AGE OF SIGMAR CHAOS SORCERER GAMES DAY 2010 METAL PAINTED LIMITED ED,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheOOP Citadel Warhammer 40k Witch Hunters Sisters Of Battle Codex NIB,State Farm Fire Casualty Co v Camara, supra.Warhammer 40K Dark Angels Limited Edition Chapter Master - metal - painted,independently of use or ownership of a vehicle.

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For example, in Partridge,Warhammer 30k-40k, Adeptus Titanicus painted,. In Jorgensen, supra,Warhammer 40,000 Space Marines Stormhawk Interceptor Miniature,. Therefore, the non-auto-related negligence had been established.1998 Chaos Beastman Minotaur with Additional Hand Weapon 1 Citadel Beastmen Army,. The Illinois court in U S Fidelity Guarantee, supra,GW Warhammer 40000 40K Blood Angels Battleforce Space Marine Army NEW,. That is the same situation in this case.Warhammer 40k - Space marines Forgeworld Red Scorpion command squad,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Games Workshop Warhammer 40,000 Necron Scythe Night Action Figure,. Detroit Edison, supra.

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