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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 Realm of Chaos Sorcerer Champion of Tzeentch Disc Rider Moon Head,.WARHAMMER 40K KILL TEAM EXALTED SCYTHE NECRONS STARTER SET - NEW,.Warhammer Fantasy Empire Dogs of War Bronzinos Galloper Gun - Metal,.Warhammer 40,000 Eldar Craftworlds Wave Serpent 107,.

The essential facts are not in dispute.Warhammer Age of Sigmar Warriors of Chaos 155,.Space Marines Predator Tank Box Warhammer 40K by Games Workshop,. At approximately midnight, Clarke drove home in his automobile.Warhammer 40k Inquisitor Malicant Miniature Games Workshop,.Warhammer 40,000 Space Marines Blood Angels Drop Pod 34,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer 40k Inquisitor Witch Hunter Metal Blister New 52-49 Female w Crossbow,.Stormcast Eternals Endless Spells Games Workshop Warhammer AoS endloszauber,.AoS Age Of Sigmar Warhammer Daughters Of Khaine Melusai Brand new, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Warhammer Age Sigmar START COLLECTING SKAVEN PESTILENS Plague Furnace&Claw&Monks,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Warhammer Fantasy Skaven Slaves x15 metal OOP,.2011 Limited GD11 Games Day Skaven Warlord Miniature Citadel Chaos Ratmen MIB GW,.GAMES WORKSHOP 40K SPACE MARINE TERMINATOR CHAPLAIN COLLECTOR EDITION BNIB,Champions of Nurgle lot Chaos Warhammer,.Games Workshop 99120208023 Start Collecting Seraphon,.

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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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A motion for summary disposition pursuant to MCR 2.Games Workshop Warhammer 40,000 VOID SHIELD GENERATOR NIB SEALED,.Warhammer 40k space marines Blood Angel painted Sternguard Veteran Painted,.Skaven Doom Flayer Weapons Team well painted metal model (c) Ratmen Rare OOP,." Hazel Park v Potter, 169 Mich. App. 714, 718; Fantasy Football - Chaos SET of 4 WARRIOS Blood Bowl - Meiko Miniatures,.Warhammer Age of Sigmar Skaven Metal OOP Slaves 696,. Pontiac School Dist v Bloomfield Twp, Warhammer 40k Limited Edition 30th Anniversary Space Marine 2016 Brand New,; GAMES WORKSHOP WARHAMMER 40,000 40K TYRANIDS HORMAGAUNTS PAINTED & BASED,; 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 40,000 TAU EMPIRE XV104 RIPTIDE BATTLESUIT MAGNETISED PAINTED & BASED,.Games Workshop Warhammer Night Goblins Archers Warriors Regiment Bowmen Command,.Warhammer 40k 30k Forgeworld Legion Sicaran Battle Tank (NEW),. Fulton v Pontiac General Hosp, Warhammer Age of Sigmar Vampire Counts Skeletons Skeleton Warriors 584,; Word Bearers Space Marine Rapier Quad Mortar pained Warhammer 40k,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, CLASSIC METAL SPACE MARINE DREADNOUGHT BASE PAINTED (L),; 207 N.W.2d 316 (1973).

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Orks Ork Battlewagon Warhammer 40k Games Workshop - New and Factory Sealed,. 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.

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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 40,000 40k Space Marine Blood Angels Company Command NEW,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, OOP Forge World Horus Heresy Cataphractii Terminator Shoulder Pads - Death Guard,; 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 Fantasy Empire Knights Panther Grandmaster Standard Bearer x 5 - Metal,.GW, CITADEL MINIATURES LIMITED EDITIONS & RARE RELEASE, MULTI-LISTING,.PLASTIC WARHAMMER ROGUE TRADER ERA SPACE MARINE RHINO ULTRAMARINES (L),.WARHAMMER AGE OF SIGMAR STORMCAST ETERNALS KNIGHT VENATOR PAINTED & BASED,.Games Workshop Warhammer Skaven Warp Lightning Cannon Metal Figures Set OOP GW,.

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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 40k Deathwatch Space Marines Land Raider Redeemer, although there is no uniform application of the doctrine.Warhammer Age of Sigmar Liche Necromancer Vampire Lord Metal,Partridge, but also over the analysis to be applied.Warhammer 40,000 Space Marines Crimson Fists Primaris Redemptor Dreadnought 3,.GW 40k Tau Empire Kroot Shaper Painted 2001 Games Day Model,PartridgeAOS Warhammer Stormcast Eternals Stardrake NIB,.Warhammer Age of Sigmar Freeguild Empire Knightly Order 14,.

See Waseca Mutual Ins Co v Noska, SNIPER PATHFINDER RAIL RIFLE - METAL OOP TAU T'AU EMPIRE WARHAMMER 40k VERY RARE, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer 40k - Genestealer Cults Neophyte Hybrids x22,; Conquistadores 8 metal (30312),; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Metal Imperial Guard Section X6 - OOP - Warhammer 40K X194, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer 40K Dark Eldar Drukhari Army Bundle Sealed Blisters Metal Classic, (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 PartridgeGenestealer Cults Acolyte Iconward Workshop Warhammer 40000 Tyranids 51-54,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, DESPICABLE ME MINION TUMBLIN' TUNBLING STUART ACTION FIGURE A MOVIE EXCLUSIVE,Games Workshop Warhammer 40k Chaos Space Marines Squad 1990s Classic Job Lot,. In Noska,Warhammer 40K Imperial Guard Astra Militarum Leman Russ Demolisher (47-11) NEW,.Fantasy Football Pitch and Dugout Mat Clan Rat (Blood Bowl Compatible),.Warhammer Dwarfs warriors clansmen army lot OOP painted plastic,.Eldar warp spiders pro-painted craftworlds finecast W40K, necessary to cause the damage. Id., p 920.2004 Chaos Be'Lakor The Dark Master AOS BeLakor Warhammer Gameswokshop Daemon,.Citadel Warhammer classic 90s Ogre with Axe and Spike oop,.Kawasaki Zx6r Sozius Duo Passenger 1998 2002,.Warhammer 40K Sector Imperialis Sanctum 64-70,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, WarHammer Fantasy Chaos Dwarfs Earthshaker Mighty Cannon Of Destruction Crew ++,Citadel Battle Figure Case - GW-60-38,.PLASTIC WARHAMMER STORMCAST ETERNAL LORD CASTELLANT WELL PAINTED (059),.Warhammer Rogue Trader Limited Collectors Edition - Fantasy Flight Games - BNIB,.Warhammer 40K Tau Crisis BattleSuit Team,.ORKS MEGATRAKK SCRAPJET - GAMES WORKSHOP 50-36,.Warhammer Games Workshop GW 40K Scenery Terrain Imperial Sector OOP New,.Warhammer Fantasy 40K Age of Sigmar Chaos Metal Bloodthirster of Khorne,. The parties Skinks Seraphon Warhammer Fantasy Age of Sigmar Model New ,.

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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 683,; Warhammer 40,000 Necron Ghost Ark Pro Painted, (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, WINGED NAZGUL DE METAL ESDLA THE LORD OF THE RING WARHAMMER,; 437 N.E.2d 663 (1982)Stormcast Eternals [Aventis Firestrike Magister of Hammerhal] [x1] Order,.Warhammer Fantasy Battle Realms of Chaos MM93 - Chaos Beastmaster,.Warhammer 40,000 Tyranids Tyrannofex 54,. The Illinois Court of Appeals, relying on Partridge, supra,Start Collecting Drukhari Warhammer 40.000 Dark Eldar Games Workshop 8th GW,

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 40000 Necron Lychguard Pro Painted,.Space Marine Salamander Army With Case Land Raider Vindicator Warhammer 40k,.WARHAMMER AGE OF SIGMAR AOS ORK ORC ROGUE IDOL PAINTED PAP IH FORGEWORLD ORRUK,.Seeker Chariot of Slaanesh of Chaos Daemons painted action figure Warhammer 40K,.Warhammer Age of Sigmar Starter Set unopened,. The ScottsdaleOGRES WARMASTER METAL 10mm Ogros,Games Workshop Warhammer Age of Sigmar Start Collecting Skaven Pestilens,.Pre-Painted - Warhammer 40k Nurgle- Transport Standard Bearing Rhino,. Id.,Warhammer 40k Tyranids Genestealer Cult Gargoyles Painted,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Church & Belfry with Gated Graveyard 28mm MDF Set by WWS – Warhammer Table top,; Warhammer Adeptus Mechanicus Ironstrider Ballistarius Sydonian Dragoon BNIB 438,Games Workshop Warmaster The Empire Flagellants Flagellant Regiment 10mm New OOP,.Warhammer Age of Sigmar Start Collecting Malignants plastic box new,. The ScottsdaleGames Workshop Warhammer Fantasy Battle Army File Cards Blank BNIB New Bretonnia,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer Astra Militarum Leman Russ Demolisher -47-11-,; 109 Cal.Rptr. 811; SUZUKI GSX 1100 ES EF soziusssitz 68R,. 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, 1985 C29 Young Fire Dungeons & Dragons Games Workshop Citadel Warhammer Red Wyrm,; 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, Games Workshop Unreleased Warhammer Chaos Dwarves Dwarf Axemen Axe Men Big Hat A,; 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 Fantasy Dwarf Slayers x 9 - Metal,; 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, Cartouche imprimante cardridge printer HP 950XL 951XL Officejet Pro 8100 8600, (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, Warmaster Orcs & Goblins Wolf Chariots WC06, (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, Games Workshop Warhammer 40k Shadow War Armageddon Skirmish Softcover Rulebook,; 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 PartridgeMilitarum Tempestus Scions New Astra Militarum,." State Farm Fire Casualty Co v Huyghe, Warhammer 30K 40K Chaos Ahzek Ahriman Games Workshop GW Plastic VERY RARE,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheGreat Unclean One Daemons of Nurgle Age of Sigmar COMMISSION painting,State Farm Fire Casualty Co v Camara, supra.20 PLASTIC WARHAMMER CHAOS WARRIORS PART PAINTED (233),independently of use or ownership of a vehicle.

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