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Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
Necron Ghost Ark - Games Workshop, Warhammer Warhammer Warhammer 40,000 05019c
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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 Chaos Daemons Codex (German) Games Workshop Warhammer 40.000 Daemons 8th,.WARHAMMER 40K DARK ANGELS DEATHWING COMMAND SQUAD 28MM MINIATURES NEW & SEALED,.Warhammer 40K Tyranid Hive Tyrant GW51-08,.Warhammer Space Marine Ultramarine Contemptor Dreadnought Well Painted,.

The essential facts are not in dispute.Warhammer 40k Space Marines Grey Knights Inquisition Army OOP Lot Games Workshop,.GW Warhammer AoS Grand Alliance Order Seraphon Kroq-Gar on Carnosaur Metal zza,. At approximately midnight, Clarke drove home in his automobile.Warhammer Void Sheild Generator New,.Warhammer Ogre Kingdoms Maneater metal painted metal gutbusters AOS ogor oop,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.1988 DG5 Large Fire Dungeons & Dragons Games Workshop Citadel Warhammer AD&D GW,.Gw Warhammer 40k Tyranid swarm army warriors squad x 8.5,.Warriors of Chaos Marauder Regiment with Flails (20 - Assembled Unpainted), Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Warhammer Imperial Guard Death Corps Command Squad Well Painted - JYS58,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.WARHAMMER 40,000 RULEBOOK CODEX IMPERIALIS WARGEAR BOOKS 40K BUNDLE 2ND ED 1993,.Warhammer 40K Dark Angels Raven Wing Death Wing Army Pro painted,.GW 40K TYRANID WARRIORS X 3. PAINTED. WHITE 511,1994 Chaos Daemonette of Slaanesh B Citadel Warhammer Demon Army Devil Fiend MIB,.CODEX IMPERIUM NIHILUS VIGILUS IN FIAMME ITALIANO 2019 Warhammer 40k manuale CHA,.

TYRANIDS 6 termagant & 20 hormagaunt brood Warhammer 40K,.Games Workshop Warhammer Vampire Counts Mannfred Mounted Metal Undead New BNIB,.Empire Armies Box Rare Warhammer Fantasy OOP,.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.Epic 40K Chaos Space Marine Plaguebearers and Beasts of Nurgle metal OOP,.Warhammer 40,000 Eldar Wraithknight 797,.Warhammer 40K GW Imperial Guard Cadian Catachan Heavy Flamer Blister Metal NEW,." Hazel Park v Potter, 169 Mich. App. 714, 718; WARHAMMER 40,000 40K SCENERY TERRAIN AEGIS DEFENCE LINE BLAST SHIELDS PAINTED,.Games Workshop Warhammer Valten Exalted of Sigmar NIB New Metal Mounted GW OOP,. Pontiac School Dist v Bloomfield Twp, Primaris Aggressors - Warhammer 40k - Games Workshop - Unopened - New,; Warhammer 40k CODEX ADEPTUS CUSTODES & DATACARDS CUSTODIAN COLLECTION,; 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.Skyweavers of Harlequins soldier painted action figure miniature Warhammer 40K,.Knight Models Harry Potter RUBEUS HAGRID AND FANG PAINTED,.Warhammer Age Of Sigmar Stormcast Eternals 3x Vanguard Palladors Painted,. Fulton v Pontiac General Hosp, Warhammer 40k Praetorian Guard (Imperial guard Astra Militarum) Rough Riders,; Space Crusade Board Game - 100% complete, prime condition [ENG, 1990],. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warhammer 40k Vindicare Assassin 2015 New Model,; 207 N.W.2d 316 (1973).

SPACE MARINES PRIMARIS LIBRARIAN - GAMES WORKSHOP 48-63,. 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.

Throne Wrath of the Magician - Magewrath & Balewind Vortex WARHAMMER Scenery,. First, the policy's exclusionary language is not ambiguous.WARHAMMER AGE OF SIGMAR STORMCAST ETERNALS KNIGHT VENATOR PAINTED & BASED,.HERESY HUNTER FEMALE ARBITRATOR WITH FLAMER CAR,. See Allstate Ins Co v Freeman, supra, pp 665-667.Imperial Knights Armiger Warglaives Games Workshop Brand New 99120108019,. We disagree with the trial court's second and third statements.CRAFTWORLDS Wave serpent tank Warhammer Eldar,.

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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 - Tyranid - Trygon Prime (REF 2) - WELL PAINTED - Exc Con,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Warhammer Age of Sigmar Orruks Orcs Goblins Wolf Riders 561,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.8x Skaven command & heros Chaos Ratmen ratman Citadel GW games workshop,.Warhammer Ogre Kingdoms Tyrant metal painted metal base table ready gutbusters,.KNIGHT MODELS DC BIRD AND MERCS METAL NEW,.WARHAMMER 40K DARK VENGEANCE CULTISTS MINI FIGURE ASSORTMENT ON SPRUE,.1998 Undead Mounted Wight Lord Citadel Warhammer Army Cavalry on Skeleton Steed,.

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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 Chaos Space Marines Plague Marines - B3, although there is no uniform application of the doctrine.Games Workshop Space Marines Primaris Librarian,Partridge, but also over the analysis to be applied.Warhammer. Beastmen Minotaurs, Orc Trolls, Yetis, Bigfoot. Congreened.,.ORCS & GOBLINS spiderfang on gigantic spider gloomspite gitz NEW scuttleboss,PartridgeWarhammer Emperor of Mankind Primarch Forgeworld Alternative Celestial Knight,.Warhammer Age of Sigmar START COLLECTING DAEMONS OF KHORNE,.

See Waseca Mutual Ins Co v Noska, BLOODLETTERS - Painted Warhammer Age Of Sigmar Chaos Blades Of Khorne Army A11, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, WARHAMMER 40K Magnetized Dark Angels 10 Hellblaster Marines PAINTED PICTURED PAP,; Warhammer 40k - Inquisitor 54mm  SECURITY ENFORCER ASSEMBLED PAINTED,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Warhammer Age of Sigmar Chaos Lord of Khorne Mounted on Daemonic Steed Metal New, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer - Skaven Clanrats x40, (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 40k Ork deff dread pro painted bad moonz colour,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Molly and Arthur Weasley Harry Potter Miniatures Knight Models PRO PAINTED,WARHAMMER 40k Apocalypse,Reload and Planetstrike books,. In Noska,SPACE HULK - Warhammer 40,000 Boxed Game,.GW 40k Forge World Thousand Sons Legion Sehkmet Terminator Cabal NIB,.Warhammer 40,000 Tau Empire Kroot Carnivore with Shaper 21,.Warhammer 40K Chaos Terminators 43-19, necessary to cause the damage. Id., p 920.Warhammer 40k Eldar Battle Force painted & not painted plastic minatures.,.Warhammer Fantasy Dark Elf Bsb Limited Edition Well Painted,.Warhammer Age of Sigmar Darkling Covens Order Serpentis Scourge Privateers Lot (,.Warhammer 40,000 Tyranids Hormagaunt Brood 563,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Warhammer Miniatures Chaos Marauders Painted & Based Lot Of 10 RARE,Rarissima scatola miniature warhammer bretoniani armati nuovi in box collezione,.Warhammer 40K Eldar Wraithlord x1 (99120104013) (Painted),.Warhammer 40,000 Space Marines Land Raider 24,.Warhammer 40K - Forgeworld - Concrete Imperial Bunker - OOP,.Warhammer Start Collecting Astra Militarum - GW-70-47,.Warhammer 40,000 Daemonhunters Grey Knights Terminator Paladins Squad 39,.Warhammer 40,000 Tau Empire Crisis Battlesuits 608,. The parties Games Workshop Epic 40K Lot Imperial Reaver Titan,.

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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 wood elf OOP Treemen DURTHU Painted,; Start Collecting Orks Warhammer 40k w Paint Commission, (emphasis supplied by Waseca Mutual court). [ Id., p 401.]


Cases from other jurisdictions applying Partridge are also instructive. In U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer Age of Sigmar Idoneth Deepkin Namarti Thralls 63,; 437 N.E.2d 663 (1982)Warhammer 40,000 40K Space Marine Predator & Land Speeder Lot Set New,.Warhammer 40,000 Space Marines Blood Angels Bikes Biker Squad 203,.Games Workshop Warhammer 40K Chaos Space Marines Noise Marine Rogue Trader New,. The Illinois Court of Appeals, relying on Partridge, supra,X10 Warhammer 40k Imperial Fists Combat Squad Plastic Figures Well Painted,

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 Chaos Space Marines Scimitar Pattern Jetbikes Well Painted - A1,.Warhammer Age of Sigmar Skaven Plague Furnace 45,.Warhammer Age of Sigmar Orks Icebrow Hunter resin new,.OOP Citadel Warhammer Heroquest Plastic Chaos Warriors,.10 PLASTIC WARHAMMER STORMCAST ETERNALS LIBERATORS PAINTED (256),. The ScottsdaleWarhammer 40,000 Space Marines Crimson Fists Primaris Intercessors Squad 167,Imperial Sanctum Warhammer 40K Scenery Terrain Ruins oop AILY,.Games Workshop Warhammer 40k Emperors Champion BNIB Limited Edition Metal New GW,. Id.,WARHAMMER 40K HAARKEN WORLDCLAIMER PAINTED GAMES WORKSHOP CHAOS SPACE MARINES,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer 40k Start Collecting Craftworlds New Free UK P&P,; Codex Grey Knights 8th Edition,Warhammer 40,000 Death Guard Plague Marines Painted (7),.Warhammer AOS high elf swordmasters of hoeth painted miniatures,. The ScottsdaleGREAT Complete WARHAMMER 40K Supplementary Game Book for Miniatures Game CODEX,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Roboute Gulliman - 40K - Games Workshop,; 109 Cal.Rptr. 811; First Strike Warhammer 40,000 Starter Set NEW 5011921086214 Free Post,. 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, Floating stones and statues nature terrain scenery runes,; 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, Saurus Oldblood Pro Painted warhammer wfb Lizardmen,; 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 AOS CHAOS WARRIORS ARMY - MANY UNITS TO CHOOSE FROM,; 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, GW Warhammer 40000 40K Blood Angels Battleforce Space Marine Army NEW, (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 Age of Sigmar WHFB Vampire Counts Crypt Ghouls x10 WDS Pro-Painted, (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 Tyranids Army Trygon Unpainted Games Workshop Tyranid Model ,; 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 PartridgeBLOOD BOWL Blood on the snow winter-themed Pitch & dugout set NIB NEW,." State Farm Fire Casualty Co v Huyghe, GW WHF Bretonnians Trebuchet Box Fair,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheLOTHERN SEAGUARD - WARHAMMER FANTASY AGE OF SIGMAR - GAMES WORKSHOP,State Farm Fire Casualty Co v Camara, supra.Warhammer 40k Space Marines Land Raider g,independently of use or ownership of a vehicle.

In Huyghe,Warhammer Fantasy Warriors Chaos AoS Slaves Darkness - Harry the Hammer (NiB),TYRANIDS Hive tyrant WELL PAINTED Warhammer 40K,.Games Workshop Warhammer Dogs of War Sheikh Yadosh Metal Mydas the Mean Set OOP,.Warhammer Fantasy Dwarf AoS Order Ironweld Arsenal - Gyrocopter (NiB, oop metal),. The HuygheGames Workshop Warhammer 40K Blood Angels Astorath the Grim Metal Mint New OOP,. 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 40,000 Space Marines Vindicator 58,.

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For example, in Partridge,Warhammer 40,000 First Strike 40K Starter Set 40-03-60,. In Jorgensen, supra,Chaos Spawn - Scylla Anfingrimm - Scyla,. Therefore, the non-auto-related negligence had been established.Warhammer Age of Sigmar Dwarfs Army w Kragg the Grim (U-B7S3 218330),. The Illinois court in U S Fidelity Guarantee, supra,WARHAMMER 40,000 SPACE MARINES IMPERIAL KNIGHT PAINTED LED EYE LIGHTS ADMECH 40K,. That is the same situation in this case.Games Workshop Warhammer Bretonnian Questing Knights Pro Painted Fantasy BV4,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Warhammer 40k Grey Knights - 4 Paladin Terminators w Halberds (oop metal),. Detroit Edison, supra.

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