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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 Dwarf Gyrocopters x2 metal OOP 8162,.VF1000 F2 Boldor Bench Seat Saddle Seat Tinkerer (sc15),.Warhammer dark elf champion halberd competition level painting oop metal,.Games Workshop Warmaster Karl Franz Empire Storm of Chaos Characters New OOP,.

The essential facts are not in dispute.Warhammer 40,000 Space Marines Imperial Knight Errant Crusader 554,.20 x Goblin Greds with Bows well painted models includes part metal command (B),. At approximately midnight, Clarke drove home in his automobile.Warhammer Fantasy Orcs and Goblins Stone Thrower Catapults x2 metal OOP,.Warhammer Orcs and Goblins Orc Boys - Two Photos - JYS77,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer 40,000 Codex Chaos Space Marines - Warhammer, Games Workshop,.WARHAMMER 40,000 DARK ANGELS DREADNOUGHT PAINTED MULTI MELTA POWER FIST 40K,.Sisters of battle female gw citadel warhammer 40k 40000 hospitaler medic sister, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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North Star On The Seven Seas Captain Hood´s Crew 28mm box new,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.1988 Marauder MM90 4d CD15 Chaos Dwarf MM90 Evil Dwarven Warhammer Army Hordes,.Warhammer 40k Space Marines Forge World Tactical Marines x10,.Warhammer Fantasy Battles Spire of Dawn High Elf Ellyrian Reavers x5,Warhammer 40k Space Marine Sternguard Veteran Squad Metal Complete OOP BOX,.Warhammer - Vampire counts varghulf - 97-13 - Citadel Miniatures - mint,.

Games Workshop Warhammer 40k Regimental Advisors 3x Metal Figures Officers BNIB,.Space Navy Assault Squad Assault Squad Games Workshop Warhammer 40.000 GW 48-09,.Rhino Mkiic Space Navy (48-12),.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 Fantasy Ogre Kingdoms Slaughtermaster Citadel Finecast OOP Sealed New,.SPACE MARINES Stormtalon gunship WELL PAINTED Warhammer 40K ultramarines,.Warhammer AoS Vampire Counts OOP plastic Painted skeleton archers regiment,." Hazel Park v Potter, 169 Mich. App. 714, 718; Stormcast Eternals Vanguard-Palladors Warhammer Fantasy Age of Sigmar NEW,.Dark Angels Primaris Lieutenant Zakariah Commission Superbly Painted 40K,. Pontiac School Dist v Bloomfield Twp, WARHAMMER AGE OF SIGMAR REALMGATE WARS QUEST FOR GHAL MARAZ - NEW & SEALED,; Warhammer Age of Sigmar Thanquol & Boneripper plastic box new,; 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.Citadel Metal PRO Painted Miniature Chaos Daemon Of Slaanesh OOP RARE,.DARK ANGELS vindicator tank Warhammer 40K Marines,.Games Workshop Warhammer 40,000 Necron Canoptek Wraiths,. Fulton v Pontiac General Hosp, Warhammer Chaos Daemons Flamers Well Painted - JYS82,; Games Workshop Warhammer Bretonnian Men at Arms Spearmen x3 Metal Figure OOP,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warhammer 40K Space Marines Primaris Hellblasters 48-76,; 207 N.W.2d 316 (1973).

SPACE MARINES 5 Vanguard Veterans Squad METAL Warhammer 40K Veteran,. 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 - 47-19 - Astra Militarum Cadian H W Squad - New. (Wargaming),.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Warhammer 40k Kill Team The Writhing Shadow Tyranids Starter Set,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Ork Warlord Ghazghkull Thraka Warhammer 40,000 40k GW,.Warhammer Age of Sigmar Warriors of Chaos Blood Warriors 496,.DARIA the Sheep Lamb 9 Ty MED Beanie Boo Collector Rare CARLETTO Germany MWMT,.Warhammer Fantasy 40K - Keeper Of Secret -Chaos Slaanesh -Games Workshop Citadel,.Warhammer 40k Imperial Guard Armageddon Steel Legion Squad - Metal,.

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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 Space Marines Imperial Fists Leopard Land Raider (Well Painted), although there is no uniform application of the doctrine.Dark Eldar Drazhar Master of Blades Finecast BNIB New Sealed Warhammer 40k WH40K,Partridge, but also over the analysis to be applied.1988 Chaos Warrior Sword 12 Games Workshop Warhammer Army Evil Hordes Fighter GW,.Warhammer 40,000 The Guard of the Crimson King collection bundle lot army h,PartridgeWARHAMMER Age of Sigmar Ophidian Archway Scenery Terrain,.Nemesis Dreadknight of Grey Knights soldier painted action figure Warhammer 40K,.

See Waseca Mutual Ins Co v Noska, Warhammer Age of Sigmar Nighthaunt Chaingrasp Horde Conversions well painted, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Warhammer 40k Space Marines Land Raider Hull,; Games Workshop Warhammer Chaos Lord Archaon Mounted NIB Metal New Boxed OOP,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, KNIGHT MODELS DC MR FREEZE CREW METAL NEW, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Namarti Thralls Idoneth Deepkin Age Of Sigmar, (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 Chaos Squad plastic New,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, 18 x Halfling Spear & Shield OOP Unpainted Metal Citadel 1985 Warhammer Fantasy,Warhammer 40k Imperial STC Colonial Habitat Terrain Citadel Scenery NIB OOP,. In Noska,Warhammer 40K Blood Angels Tactical Squad 10 Space Marines Marine,.Warhammer 40k , salamander space marine , pro painted .,.Warhammer Idoneth Deepkin Akhelian Allopex - JYS17,.Games Workshop Warhammer 40k Emperors Champion BNIB Limited Edition Metal New GW, necessary to cause the damage. Id., p 920.Warhammer Lizardmen Age of Sigmar Saurus Warriors x 24 & Spares,.Warhammer Age of Sigmar Skaven Metal OOP Slaves 700,.Citadel Miniatures TITANS ORK BATTLEWAGON IV New Sealed,.Warhammer fantasy Bretonnian duke on Hippogriff oop metal Bretonnia,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, ⇨ 15 chaos warhounds warhammer age of sigmar magnetic bases,METAL BOLT THROWER METAL CANNON PRO PAINT DWARF PAINTED ARMY WARHAMMER,.Games Workshop - WARHAMMER 40K= WOOD ELF WARDANCER LORD,.Imperial Fist Forgeworld Large Figurine,.Warhammer 40,000 Daemonhunters Grey Knights Nemesis Dreadknight 674,.Warhammer 40k Horus Heresy Alpharius Alpha Legion Primarch Brand New in Box.,.Warhammer 40k - Adeptus Mechanicus Skitarii - Brand New in Box - 59-10,.Warhammer 40,000 Space Marines Vanguard Assault Squad 157,. The parties Start Collecting Craftworlds - Warhammer 40k - Games Workshop - 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, DWARF IRONBREAKERS (10) - Warhammer Age of Sigmar,; Warhammer Codex Dark Angels -44-01-60-, (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, Incarnate elemental of fire warhammer forge world fantasay age sigmar,; 437 N.E.2d 663 (1982)WARHAMMER AGE OF SIGMAR CHAOS NURGLE redBRINGER EXALTED SORCERER PAINTED & BASED,.Warhammer 40K Space Marines - 5 Devastators w 4 Multimeltas (NoS),.Warhammer 40k Orks speed freeks boomdakka snazzwagon pro painted made to order,. The Illinois Court of Appeals, relying on Partridge, supra,Tale of War Miniatures Claudius of Moldavia and Ardolf Pellan (Metal, 2) Undead,

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 Necrons Catacomb Command Barge plastic new,.Warhammer Fantasy Battle Flamers of Tzeentch x4 Painted OOP Metal Age of Sigmar,.Games Workshop Warhammer 40k Blood Angels Furioso Dreadnought Unpainted RRP,.SIGVALD THE MAGNIFICENT Champion Of Slaanesh Metal Slaves To Darkness Warhammer,.Warhammer Age of Sigmar Daemons of Chaos The Glottkin 26,. The ScottsdaleWarhammer 40k Space Marine Ultramarine Primaris Inceptor Squad,Warhammer 40k Army Space Marines Blood Angels Death Company Dreadnought Painted,.OOP Citadel Warhammer Metal Realm Of Chaos Marauder Cavalry,. Id.,Start Collecting Skitarii. Warhammer 40k. 20% off UK rrp.,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Painted Nighthaunt Glaivewraith Stalkers Soul Wars Age Of Sigmar,; WARHAMMER - Beastmen Battalion - Battaglione degli Uomini Bestia - NEW SEALED,Warhammer Age of Sigmar High Elf Aelf Dragonlord.,.Warhammer 40,000 Astra Militarum Imperial Guard Leman Russ 2,. The ScottsdaleWarhammer 40,000 40k Conquest Issues 27 and 28 - Death Guard Chaos Rhino,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer 40K Chaos Word Bearers Raptors 001 (5) Pro Painted ,; 109 Cal.Rptr. 811; Warhammer 40k Sly Marbo Catachan BNIB New Sealed Metal Imperial Guards GW OOP,. 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, PLASTIC WARHAMMER ORK DEFF DREAD WELL PAINTED (L),; 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 GW OOP Metal Limited Edition Lizardman Army standard bearer,; 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 40k grey knights Dreadnought OOP Forgeworld,; 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 Fantasy Battle Warriors of Chaos Knights Painted Lot B, (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 Fantasy Battle Dark Elf Beastmaster On Manticore Metal & Plastic Wings, (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, Fantasy viking horsemen 9 metal warhammer sigmar (30309),; 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 Age of Sigmar Daemons Of Chaos Horrors of Tzeentch 739,." State Farm Fire Casualty Co v Huyghe, Gnoblar Guerrieri dei Regni degli Ogri WARHAMMER Citadel Games Workshop,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheDaemons Of Nurgle - Great Unclean One - Warhammer - Age Of Sigmar - 40K,State Farm Fire Casualty Co v Camara, supra.The Legion of the Damned of Space Marines soldier painted action Warhammer 40K,independently of use or ownership of a vehicle.

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For example, in Partridge,Bretonnian Knights of the Realm 99% new on sprue Bretonnia OOP,. In Jorgensen, supra,Thousand Sons Ahzek Ahriman Plastic 30k Prospero Chaos - Warhammer 40,000,. Therefore, the non-auto-related negligence had been established.OGRE KINGDOMS Maneater METAL PRO PAINTED empire mercenary Fantasy,. The Illinois court in U S Fidelity Guarantee, supra,Games Workshop Warhammer Dark Elf Sorceress Morathi on Foot New BNIB Metal Staff,. That is the same situation in this case.1987 DS5 Young Forest Dungeons & Dragons Citadel Warhammer Fire Drake Wyrm AD&D,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Caja Warhammer - Lord Of Tzeentch Games Workshop,. Detroit Edison, supra.

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