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Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
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LOBO DC UNIVERSE MINIMATES YOUNG JUSTICE LEAGUE CZARNIAN L.E.G.I.O.N. LEGENDS,
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 12 STEIFF BOBBY TAN BROWN TEDDY BEAR STUFFED ANIMAL PLUSH TOY gold,.IKASA Plush Doll Big Bear Teddy Bears Cute Bear Animals Big Cut Doll Bear Sewing,.DC Comics Retro Style Boxed 8 Inch Action Figures Green Lantern,.Smoby Tefal Studio Bubble Kitchen Bubbling Water Feature Toy Plastic,.

The essential facts are not in dispute.Vintage 2 MAN SKEET by Ideal Handheld Electronic Tabletop Video Game Box Manual,.Miss oh Stuffed Plush Soft Toy Stofftier realistic Monkey Sitting-PB 28cm.H,. At approximately midnight, Clarke drove home in his automobile.NINCO Transformer 12v official - 10316 Car circuit,.Lot of ten 1990's Star Wars 3.75 action figures w tight joints clean nice ,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Superman Batman ser 4 KRYPTONITE BATMAN 6in Figure Glow in the DARK DC Direct,.Marvel Minimates Exclusive Iron Man Hostile Takeover Battle Damaged Iron Monger,.FUNKO POP DC CATWOMAN LEGION OF COLLECTORS EXCLUSIVE, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Marvel Legends WALGREENS Exclusive FANTASTIC 4 HUMAN TORCH FIGURE,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.DC Universe Infinite Heroes Series 1 Anti-Monitor Action Figure,.FIGURINE BATMAN MISTER FREEZE ARNOLD SCHARZENEGGER DC COMICS KENNER 1997,.WBritain ( Britains ) 23106,Marvel Avengers Titan Hero Series-Falcon,WinterSoldier,CapAmerica,Hawkeye,Antman,.BRITAINS 17253 BRITISH 8TH ARMY DESERT RAT INFANTRY METAL TOY SOLDIER FIGURE SET,.

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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.Hasbro Marvel Legends Series Avengers Infinity War 6 Serpent Society BAF Thanos,.Brio Train Station with Sound, 4-Part, Accessory for Wooden Railway, Rail, Toy,.FIGURINE COLLECTION JOE BAR TEAM SERIE 2 N°6 HILL ASTIK VINCENT 1000 EGLI BOITE,." Hazel Park v Potter, 169 Mich. App. 714, 718; SAN-X JAPAN SUMIKKO GURASHI DOLL SCHOOL SERIES STUDY FIGURE SET TP39907,.R38 Britains 08735 Land Rover Series 1 MIB,. Pontiac School Dist v Bloomfield Twp, Electronic Football LCD Game (TIGER ELECTRONIC TOYS) - COMPLETE IN BOX MANUAL,; Sanrio Hello Kitty Konani Kimono Kimono Plush Doll M size 28 cm,; 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. . . .

JUEGO MB SIMON AÑOS 80 EN CAJA Y COMPLETO,.Figure Bust Torch Human Human Torch by FANTASTIC 4 Resin MARVEL Diamond Bust,Plush Stuffed Deer [ID 8615],. Pontiac School Dist, supra.BRITAINS 5802 YORK + LANCASTER LANCS REGIMENT METAL TOY SOLDIER FIGURE SET,.

12 PRECIOUS MOMENTS LION WALLACE BERRIE 1985 APPLAUSE STUFFED ANIMAL PLUSH TOY,.

A motion for summary disposition under MCR 2.Hansa Standing White Cat 4222 Plush Soft Toy Sold by Lincrafts Established 1993,.Used Teddy Bear Silk Petsy pink USA limited 2015 Steiff Stuffed toy From Japan,.Senario Who Wants To Be A Millionaire Plug into TV Video Game System Party New,. Fulton v Pontiac General Hosp, Trudi 64265 BAMBOLA Mary Con ORSETTO Doll, 24 cm,; Aurora World 30837 Larkspur Dragon,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Splatoon 2 Big Large Squid Plush Doll Bright bluee Sanei Genuine,; 207 N.W.2d 316 (1973).

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Steiff Mohair Unicorn Pendant Soft Toy,. 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.Electronic Computerized SUPER-PRO Football Handheld - Used,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Cupcake kid robot yummy bluesh,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Iron Man Light-Up Q-Fig FX Diorama Figure Loot Crate DX New in Box Tony Stark,.Marvel Iron Man 3.75 Figure Bundle,.Dc Batman Unlimited Bizarro 12” Action Figure Mattel,.National Geographics KOALA Stuffed Animals Mother with Baby Plush Toy 2-Piece,,.Schmidt Sorgenfresser COIG Game, Purple,.

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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, Marvel Legends Nemesis BAF Lower Torso Yellow Daredevil Walmart Hasbro 2007, although there is no uniform application of the doctrine.BRITAINS 20089 ZULU WAR LAST SHOT BRITISH ROYAL ARTILLERY 7LB GUN + FIGURE CREW,Partridge, but also over the analysis to be applied.RARE Vintage MANI City Fighter Electronic LCD Handheld Video Game Tested,.BRITAINS TOY SOLDIERS 7249 QUEENS COLOUR PARTY SCOTS GUARDS,PartridgeGerman Shepherd Dog Soft Toy Plush Toy Dog Plush 36 cm,.BERSERK ART OF WAR JUDEAU 16CM PVC ACTION FIGURE MANGA NEW,.

See Waseca Mutual Ins Co v Noska, Baby Shark Cube Plush Set by WowWee Pinkfong Mommy Daddy Baby Sings Song English, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, MCFARLANE TOYS Skybound The Walking Dead Telltale Clementine Action Figure BNIB,; Fujiko Hashimoto 2019 Wall-Mounted Calendar Interior L New Year Masterpieces,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Hansa Lying Snow Leopard 6999 Plush Soft Toy Sold by Lincrafts Established 1993, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Moto Joe Bar Team 083 Suzuki 250 T20 coursifiée de 1967 1 18 figurine Hachette, (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.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, New Sphero 2.0 The Original All-Enable Robotic Ball (Model S003) Free Shipping,DC Comics Justice League Retro Style Action Figures Series 1 Green Arrow by FTC,. In Noska,Rare 2006 TOYBIZ MARVEL LEGENDS ONSLAUGHT SERIES PYRO 6 ACTION FIGURE XMEN NEW,.BRITAINS 5186 WELSH GUARDS LIMITED EDITION METAL TOY SOLDIER FIGURE SET,.Trudy Husky Marcus Plush 60 cm,.VINTAGE 1985 APPLAUSE BUNNY RABBIT SNOWBALL PRECIOUS MOMENT STUFFED ANIMAL PLUSH, necessary to cause the damage. Id., p 920.DC DIRECT DESIGNER GREG CAPULLO SERIES SUPERMAN ACTION FIGURE NEW,.Domo Animation Pink 10 NWT and Small Domo 8 ,.BRITAINS PRINCE ALBERTS OWN 11th HUSSAR MOUNTED HUSSAR 8820 x 4,.TIGER ELECTRONICS - WCW NITRO GAME - STING - MADE IN 1998 - MODEL 74-092,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, WWF cuddly Polar Bear plush stuffed animal Licensed soft toy,Spider-Man Special Edition Series 12 Marvel Toy Biz Action Figure NIB 1997,.Electronic game Elektronika War Submarine ussr russian version game & watch,.FINAL FANTASY XIV Kupuru Koppo Plush Doll,.6 SANRIO SMILES 2000 Ggold GgoldPIKADON BredHERS CAVEMAN STUFFED ANIMAL PLUSH TOY,.Posh Paws Despicable Me 9093 DM3 Fluffy Unicorn 20 Soft Toy (X-Large),.Marvel Kawaii Art Collection Special Plush Toy Spider-Man,.Justice League Hero Wonder Woman Statue PVC Action Figure ARTFX+ Toy,. The parties Kuscheltiere.biz Unicorn ANGEL white 40 cm Plush toy by,.

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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, Beads Balls of billiards pool 50.8 mm yellow and bluee for Billiards pool,; Vintage 1990's 1995 Toy Biz Pooch The Good Puppy Walks Sits Barks Interactive, (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, TMNT LCD 1991 Wrist Game SHREDDER GETS SHELLED KONAMIVERY RARE ITEM ,; 437 N.E.2d 663 (1982)Batman Boxed Bendable Set Classic TV Series Set 2 DC 3935,.DC Superhero Red Robin Chess Piece by Eaglemoss NEW still taped. Nice,.Solitaire Draw 1 Or 3 Electronic Handheld Game Rec Zone Brand New Sealed NIP,. The Illinois Court of Appeals, relying on Partridge, supra,Batman Action figures 6 inch scale DC comics New Frontier Arkham,

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.RARE VINTAGE HANDHELD ELECTRONIC GAME LOT 7,.ALEX ROSS KINGDOM COME 6 HAWKMAN FIGURE,.Intelex Cozy Plush Fully Microwavable Toy - bluee Cat by Intelex,.Douglas Toys Ziggy The Caticorn Rainbow Fuzzle Cat Unicorn Stuffed Animal Toy,.Figurine resin Astérix and Obelix edition Park 2004 Falbala 16.5cm,. The ScottsdaleBrio Brio Compatible Wooden Train Joblot,1996 Kenner Capture Net Superman from animated show,.Marvel Legends - MAGNETO ACTION FIGURE - BAF Apocalypse - X-Men Series 3,. Id.,Frontline Figures 24F 3 24th Foot Regiment Dead and Dying,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Big Plush American Made Giant Stuffed Pink Unicorn 3 Feet Wide and 3 Feet Tall,; Suicide Squad Joker Funko POP (Grenade Damage) 2016 NY Comic Con Exclusive,Squishmallow 16 Grey Elephant Mila,.Pixyland Kew Pre-War Garden Plant in drain pipe Farm Lead Figures vintage toy,. The ScottsdaleJellycat Special Edition Bashful Bubbles Bunny Rabbit,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Realistic Jumbo Large 41” Lying Leopard Jaguar Plush EUC,; 109 Cal.Rptr. 811; 1981 vintage Coleco PAC-MAN tabletop electronic game PACMAN w original box ,. 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, BRIO 33873 Smart Tech Train Engine Set Action Tunnels Wooden Railway Kids 3yrs+,; 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, Teddy Hermann 927600 golden Retriever, 60 cm,; 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, Brontosaurus Dino Jumbo - 58cm Soft Toy Dinos Dinosaur High Cuddly Suki Teddy,; 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, BRIO Egyptian Set 33917 Pyramid 33919 MUMMY Tower 33920 Pharaoh Train 33921 LOT, (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, Doudou et Compagnie DC2681 25 cm Lavender Pompon Rabbit Plush Toy, (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, Peluche Zebra 32x34x10 Cm Peluches Hansa PS 07561,; 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 PartridgeVery Rare The Jester & Pharley Doll With 64 Page Illustrated Book - New ,." State Farm Fire Casualty Co v Huyghe, Used Bear Cheeky daisy chain World limited 2009 Merrythought Plush Doll,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheMarvel Legends toybiz Classics X-men x-treme extreme Rogue HTF Fair Condition,State Farm Fire Casualty Co v Camara, supra.Marvel Superhéroe Squad el Increíble Hulk Set de Figuras ( -hulk la Cosa,independently of use or ownership of a vehicle.

In Huyghe,Simba Pj Masks Pajama Heroes Plush Owlette Plush Figure Plastic 38 cm 109402077,Minnie Pets Floor Pillow Stuffed Animal Plush Toy, Soft Cuddly Portable Home New,.Mattel DC Universe Infinite Army Of Heroes Crisis Red Arrow Series 1 Figure 51,.Hasbro Marvel Legends Series 6-inch Captain Marvel - Captain Marvel,. The HuygheValentine's Day Virgil the Sloth Faux Fur Soft Stuffed Animal Pier 1 NWT,. 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 HuygheDOCTOR WHO SERIES FOUR ACTION FIGURE SET - 10TH DOCTOR 2005-2010 - minor b wear,.

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For example, in Partridge,Britains - American Civil War Series - Set 17897 - Union Infantry Routing Set,. In Jorgensen, supra,NWT Olive the Other Reindeer Dog Gund 16 Plush Stuffed Animal 40734 Christmas,. Therefore, the non-auto-related negligence had been established.Pillow Pets 11 inch Pee Wees - Jolly Giraffe,. The Illinois court in U S Fidelity Guarantee, supra,DC Super Heroes Supergirl w exclusive comic book - 2006,. That is the same situation in this case.BRITAINS BOXED LIMITED EDITION SEAFORTH HIGHLANDERS 5188,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Marvel Select Colossus Action Figure,. Detroit Edison, supra.

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