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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.



MURPHY, J.

Defendant Melinda Clarke appeals Warhammer 40k AOS Chaos Marauders Miniatures Lot Of 9 Painted & Based RARE,.Warhammer 40K Tau Empire XV128 STORMSURGE NEW Sealed,.Games Workshop Warhammer Dwarf Grudge Thrower & Crew vintage metal minature,.Warhammer 40k rulebooks, full format A5 mini for various editions select - OOP,.

The essential facts are not in dispute.Huge Bundle Rare Vampire Counts Necromancers Lords Mordheim Mounted OOP Undead,.Citadel Warhammer Dwarf Bolt Thrower metal miniature set (complete),. At approximately midnight, Clarke drove home in his automobile.Warhammer undead wights on skeleton steeds OOP,.Zinge Industries Steampunk Walker Mobile Gun Platforms + Guns x3 S-ART10 B,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Games Workshop Necromunda Scavvies Gang Painted Karlos Valois Skavvies 14Figures,.Citadel C03 Clerics High Priest Games Workshop Cleric Warhammer Metal Figure GW,.Warhammer Age of Sigmar Chaos Warshrine plastic new, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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FORGE WORLD Salamanders Legion Firedrakes WARHAMMER 40.000 40K,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.WARHAMMER FANTASY BATTLE WOOD ELF LORD WITH GREAT WEAPON METAL OOP RARE,.Warhammer Fantasy Age Of Sigmar Army Ogre Kingdoms Ogors x6 Painted,.Warhammer Dogs of War Lorenzo Lupo Character Metal Mint Games Workshop Tilean GW,3 Warhammer Orcs & Goblins Chariots, Age of Sigmar Start Collecting Greenskinz,.Games Workshop Warhammer 40k Space Marines Tactical Marine Job Lot Squad Bike,.

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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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Warhamer 40 000 Residential unit 2,. We agree in part.

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A motion for summary disposition pursuant to MCR 2.GW Warhammer 40K Chaos Space Marine Plague Marines x9 Metal Bodies,.Warhammer 40k Gorkamorka Orks Spear Gun Trukk New on Sprue OOP Rare,.WARHAMMER, EMPIRE ARMY, MEN AT ARMS x18,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer King Louen Leoncoeur on Hippogryphon Bretonnia Citadel Metal OOP,.Vintage Star Wars 1980 Tauntaun Closed Belly w Saddle, Reins & Luke Hoth ,. Pontiac School Dist v Bloomfield Twp, DEMONS OF LAW C34 1985 avenging citadel,; WARHAMMER 40,000 AGE OF SIGMAR CHAOS DAEMONS GREAT UNCLEAN ONE PAINTED NURGLE,; 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.Nighthaunt Chainrasp Hordes Warhammer Age of Sigmar,.Carcharodon Primaris Lieutenant Warhammer 40k Pro Painted,.OOP Citadel Warhammer Marauder Chaos MB7 Marauder Giant,. Fulton v Pontiac General Hosp, MORDIAN GUARDS with SERGEANT - METAL NEW IN BLISTER MORDIANS IMPERIAL GUARDS OOP,; Maleceptor of Tyranids soldier painted action figure miniature Warhammer 40K,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warhammer 40k Chaos Space Marines Death Guard Typhus Painted,; 207 N.W.2d 316 (1973).

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Warhammer Age of Sigmar Skaven Jezzail Teams x3 C,. 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.

12 ORC ARRER BOYS VINTAGE WARHAMMER FANTASY BATTLE METAL ORCS ( 1980s),. First, the policy's exclusionary language is not ambiguous.Warhammer Fantasy Woof Elf Orion King In The Woods Fey Metal OOP Oldhammer,.Warhammer 40k space marines marnues calgar and retinue,. See Allstate Ins Co v Freeman, supra, pp 665-667.The Lord of the Rings - Faramir's Rangers Of Gondor - 28mm - Painted,. We disagree with the trial court's second and third statements.Warhammer 40k legio custodes grav tank forge world pro painted made to order,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.CAPTAIN PRIMARIS SPACE MARINES ULTRAMARINES WARHAMMER 40k pro painted,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Caja edición White Dwarf promocional WD-10 Warhammer Citadel,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Games Workshop Warhammer 40,000 Chaos Space Marines Khorne Berzerkers x8 OOP,.WARHAMMER BATTLE - Boite d'Armée Chaos 1994 V4-V5,.Warhammer 40k Chaos Space Marines - Slaanesh Noise Marine (Rogue Trader Era),.Warhammer Wargames Knights of chaos well painted 8 pcs Plastic metal painted L3,.Warhammer 40k Thousand Suns Scarab Occult Terminators Games Workshop Citadel,.

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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 Space Ork Dinosaur Battlewagon, although there is no uniform application of the doctrine.Warhammer 40K Blood Angels Space Marine - Baal Predator (Flesh Tearers),Partridge, but also over the analysis to be applied.Tau Empire XV88 Broadside Battlesuit Warhammer 40k NEW,.Warhammer 40k Adeptus Ministorum - Sisters of Battle Celestine & Twins (Nos),PartridgeCodex T'au Empire - FREE SHIPPING,.Warhammer 40k Blood Angels Death Company Assault Marines 14 man unit,.

See Waseca Mutual Ins Co v Noska, Warhammer 40,000 Custodian Guard 5 Model Squad - 30K Burning Of Prospero, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer 40k 20 ORK BOYZ -PAINTED,; 2003 Chaos Knight Limited Edition 213 Citadel Christmas Present Gift Warrior MIB,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Warhammer Forgeworld Bull Renderers X 3, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, GAMES WORKSHOP WARHAMMER 40,000 40K NECRON LYCHGUARD PAINTED & BASED, (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 PartridgeGames workshop battlefleet gothic ships, armada, metal, oop,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Warhammer 40k Chaos Space Marines Khorne Berzerkers (10 models) Lot,ELDAR Phoenix lord asurmen PRO PAINTED Warhammer 40K Craftworlds Ulthwe,. In Noska,WARHAMMER DARK ELF SPEARMEN x6 1990's,.Warhammer Age of Sigmar - Disciples of Tzeentch Army,.AOS Battle Magic Expansion Malign Sorcery Box Set MIB,.Warhammer 40 000 Forge World Legion Anvillus Pattern Dreadclaw Drop Pod, necessary to cause the damage. Id., p 920.Games Workshop Citadel C25 Minotaur Metal Warhammer Figure 1980s Mint OOP,.Warhammer 40k Chaos Daemons - Khorne Bloodthirster commission painting,.Warhammer Empire- 8x Archers. Classic metal. OOP,.Warhammer 40k Chaos Space Marines - Raptors OOP Metal x 5,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, ⇨ 15 chaos warhounds warhammer age of sigmar magnetic bases,Landraider warhammer 40k well painted,.Warhammer Age of Sigmar The Realmgate Wars Quest for Ghal Maraz New In Plastic,.Knight Castellan Painted to Order,.Ork Megatrakk Scrapjet Warhammer 40,000 Games Workshop,.Warhammer Space Marine Dark Angels Veterans Well Painted,.Ironbreaker [Metal] OOP [Missing Shields] [x20] Dwarfs [Warhammer] Assembled,.OOP Citadel Warhammer Marauder Miniatures Chaos MM22 4 Orc Boar Riders,. The parties Warhammer Lizardmen - AOS - Seraphon - Lord Kroak Brand NEW IN BOX,.

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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 Age of Sigmar Dwarf Dwarves Grundstok Gunhauler 686,; Warhammer Age of Sigmar Paints & Tools Set, (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, Gloomspite Gitz Mangler Squigs Games Workshop Brand New 99120209050,; 437 N.E.2d 663 (1982)Age Of Sigmar Tempest of Souls Warhammer Games workshop,.Warhammer 40K Space Marines Blood Angels Vanguard Veteran Squad New,.Warhammer 40k Chaos Space Marines - 5 well painted Nurgle Terminators (oop),. The Illinois Court of Appeals, relying on Partridge, supra,1988 Chaos Champion of Khorne 0218 07 Citadel Warhammer Army Hordes Evil Fighter,

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.Space Hulk 22 Purestrain Genestealers + Broodlord Patriarch Tyranids Brand New,.Warhammer Chaos Space Marines Khorne Lord of Skulls Daemon 4,.Web Exculsive Space Marine Sergeant; Metal, OOP, BNIB, Warhammer 40,000,.Warhammer 40k 30k Horus Heresy pro painted and competitive Custodes army,.Warhammer 40,000 Daemonhunters Metal Sisters of Battle Squad 2,. The ScottsdaleGames Workshop Warhammer 40k Space Marines Captain Master of the Marches NIB OOP,Warhammer Age of Sigmar Vampire Counts Skeleton Warriors Skeletons 647,.Warhammer Fantasy Chaos Dwarves Dwarf Warriors Axemen Axe Man x 10,. Id.,Games Workshop Warhammer Chaos Plaguebearers of Nurgle x10 Sigmar Painted Army B,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, (Bma) Old Citadel Games Workshop Fantasy Battle Dwarf Engineers - Multilist-,; Horus Heresy Ultramarines Landraider Predeus Forgeworld painted.,SPACE MARINES PRIMARIS LIEUTENANT STALKER BOLT RIFLE 500TH STORE LIMITED EDITION,.WARHAMMER 40,000 DARK ANGELS DREADNOUGHT PAINTED MULTI MELTA POWER FIST 40K,. The ScottsdaleWARHAMMER AGE OF SIGMAR DARK ELF DARK RIDERS METAL RIDERS PAINTED OOP,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Yncarne, Avatar of Ynnead - Warhammer 40K Eldar Craftworlds Aeldari,; 109 Cal.Rptr. 811; Games Workshop Terradon Riders 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, Warhammer Age of Sigmar Skaven Screaming Bell 43,; 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, SKELETON WARRIORS x20 Vampire Counts Undead Dead WARHAMMER Esqueletos SEALED,; 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 Battleforce Blade of the Blood Queen - Age of Sigmar Undead Army Box,; 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, Vampire Blood Knights BNIB undead Vampire Counts regiment Metal Warhammer OOP, (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 40k Orks speed freeks box set pro painted made to order, (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 Lizardmen Seraphon Skinks 424,; 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 Partridge1984 C34 Chaos Beastman Rider 2 Pre Slotta Citadel Warhammer Beastmen Raider C38,." State Farm Fire Casualty Co v Huyghe, WARHAMMER 40,000 40K SPACE ORKS WARBOSS SHOOTA & POWER KLAW PAINTED & BASED,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheGames Workshop Warhammer Talisman 3rd Edition Dungeons Of Doom Shaman BNOS New,State Farm Fire Casualty Co v Camara, supra.LORD ARCHAON THE EVERCHOSEN Warhammer Metal Vintage Miniature Chaos Warrior,independently of use or ownership of a vehicle.

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For example, in Partridge,Warhammer 40,000 Space Marines Terminators Squad 822,. In Jorgensen, supra,Skarbrand Chaos Khorne Pro Painted,. Therefore, the non-auto-related negligence had been established.Starfinder Adventure Path - Dead Suns - Empire of Bones,. The Illinois court in U S Fidelity Guarantee, supra,Games Workshop Warhammer 40k Custodian Guard Squad,. That is the same situation in this case.Warhammer 40k Space Marines Executioners Army,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.WWG Industry of War  -Pasarela corrediza, Torre y Escalera 28mm - Wargaming,. Detroit Edison, supra.

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