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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 Spider-Man Origins Venom Figure Hasbgold New In Box 2006 Supermetal Amazing ASM,.Marvel Legends Mandroid series AIM Soldier figure,.1997 ertl lemutt fifi white puppy dog plush wearing pink satin pajamas pjs 14 ,.Marvel Legends Captain America Infinite Series WINTER SOLDIER 6 Action Figure,.

The essential facts are not in dispute.Vintage 2 MAN SKEET by Ideal Handheld Electronic Tabletop Video Game Box Manual,.Folkmanis Rabbit in Hat Puppet,. At approximately midnight, Clarke drove home in his automobile.Selens 120cm Photography Studio 16 Rods Octagon Parabolic Umbrella Softbox with,.Hasbro Ghost Rider “Flame-Fist Ghost Rider+Light Up Fists” 6 inch Action Figure,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.LARGE BOXED MARVEL HULK FIGURE STATUE A27601 18 x 26.5 x 25CM ENESCO SCULPTURE,.BRITAINS RE FINISHED BRITISH 11th HUSSARS PRINCE ALBERTS OWN On the Tred nq,.BATMAN NEW BATSUIT 10 INCH ACTION FIGURE DOLL DARK KNIGHT MATTEL, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Tudor Games Playoff Electric Football Game  Used once.  Complete.,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.RARE - Jeu video video game Marvel Spider Man - Tiger electronics - 1988,.BRITAINS 51002 - 2 x Mealie Bag Wall Sections Straight,.BRITAINS 17590 WORLD WAR TWO GERMAN INFANTRY METAL TOY SOLDIER FIGURE SET,BRITAINS 43077 BRITISH ROYAL MARINE BASS DRUMMER METAL TOY SOLDIER FIGURE,.DC DIRECT DESIGNER GREG CAPULLO SERIES GREEN LANTERN ACTION FIGURE NEW,.

Skelanimals DC Comics Super Hero Superman Dax 10-Inch Plush Toy - Toynami,.Justice Emoji Microbead Plush Dog Cute Pink Iscream I scream spandex faces,.17 VINTAGE 1995 TEDDY PRECIOUS TOYSHOP BEAR STUFFED ANIMAL PLUSH TOY ORNAMENT,.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.Marvel Select 8 Inch Action Figure - Green Goblin,.Sun Lemon Hizaneko Cat Plush on Lap Real-Feeling Size M Brown P-1812,.BRITAINS 00215 SCOTS GUARDS COLOUR PARTY IN STATE DRESS 1899 TOY SOLDIER SET,." Hazel Park v Potter, 169 Mich. App. 714, 718; Bullseye Soft Toy from Oliver Bill Sykes English Bull Terrier Dog Rare 2005,.Very Rare Vintage Marvel X-MEN CABLE 5 Action Figure With Weapon 1992 Marvel,. Pontiac School Dist v Bloomfield Twp, BRIO World 33936 Smart Tech - Farm for Wooden Train Set,; Dc Action-Figur Justice League Superman und Gerechtigkeit One Fahrzeug Mattel,; 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.Steiff 8 LED CASPER CHAMELEON LIZARD Animal 034848 Germany Plush Limited Teal,.BRITAINS 7229 3 X CEREMONIAL HORSEGUARDS MOUNTED METAL TOY SOLDIER FIGURE SET,.WALKING DEAD TV NEGAN LEGACY EDITION 10 DELUXE ACTION FIGURE - NEW BOXED,. Fulton v Pontiac General Hosp, Tricolopure Men Actives - 180 tablets - 3 months supply. 200% Stronger than comp,; DC Direct-Hellblazer vf nm on card,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Vintage lead 2 figures man with cane lady carrying bag and purse,; 207 N.W.2d 316 (1973).

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JEOPARDY TALKING TIGER ELECTRONIC LCD GAME HANDHELD NEW,. 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.BM06 Britains Boxed Set No. 2080 Types of The Royal Navy. 1953 version,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Britains Hollowcast 40196, 17th Lancers Officer on Rearing Horse Mint & Boxed,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.BRIO Builder Construction Engineering Building Set Made From FSC Certified Wood,.SONIC THE HEDGEHOG SONIC peluche 30cm,.12 Universe Hulk Thor Ragnarok Interactive Gladiator Action Figure Modle,.Star Wars Captain Phasma Soft Toy XL,.CRAZY KONG Handheld LCD Electronic Game GRANDSTAND,.

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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, 20q 20 Questions Handheld Electronic Game By Radica Sealed v2.0- RED - RARE , although there is no uniform application of the doctrine.TRU EXCLUSIVE BATMAN BEGINS GOTHAM CITY GLIDER FIGURE,Partridge, but also over the analysis to be applied.Marvel - Selfie Gwenpool Pop Vinyl - FunKo Free Shipping ,.NEW HARRY Teddy Bear - Cute and Cuddly - Gift Present Birthday Xmas,PartridgeVTech Kidizoom Smartwatch DX2 Special Edition Floral Birds with Bonus Vivid,.DC Comics Batman Beyond Deluxe Strato Defense Hasbro (1999) Action Figure w Kn,.

See Waseca Mutual Ins Co v Noska, Brio Labyrinth & Practice Plates Wooden Toy Game of Skill Ball Play Balance Red, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Britains Jonny Walker Whisky Talisman My Ref Or 13’,; Hasbro CATCH PHRASE 2nd Second Edition Electronic Handheld Game R11079,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Eichhorn Train Set with Bridge Wooden Train Railway Toy Wood H 24 cm 100001275, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Brio MY HOME TOWN LIGHT & SOUND POLICE CAR Wooden Toy Vehicle BN, (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 PartridgeEn Avion Tintin - Editions Hachette - 014 L'avion de Bazaroff de L'oreille cassé,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, LOTTE LCD card game FISHING Gakken Japan prize item very rare,BIG Power Worker Excavator Sand Toy Sand Vehicle Plastic H 28.5 cm 800056835,. In Noska,FAO black English Springer Spaniel plush dog 24 inch,.Marvel Comics Universe IRON MAN Villian TITANIUM MAN 3.75 toy figure, RARE,.Trudi 22723 Soft Toy Large Beige,.BRITAINS VINTAGE LEAD ZOO SERIES YOUNG NILE CROCODILE INCHES LONG, necessary to cause the damage. Id., p 920.Imaginext Teen Titans Go Batman - Robin & Batmobile - Brand New In Box,.WORKING VINTAGE 1971 WACO JAPAN TABLE MODEL DRAW POKER WITH BOX,.William Britains Overrun British 24th Foot Ambulance Overrun Ltd. Ed. 20150,.IRONMAN OFFICIAL MARVEL FIGURE INCLUDES COA,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, National Geographics GIRAFFE Stuffed Animals Plush Toy (Medium, Natural),Sale Betty Boop-Lot Insp Betty Cow Boy mit Lasso&policiere-résine,.1998 GAME WATCH MINI CLASSIC CARRERA F1 FORMULA 1 NIP NEW KEYCHAIN RETRO,.PELUCHE GUFO TRUDI GADGET COCA-COLA HARRY POTTER 2001-RARO-NEW PLUSH OWL HIBOU,.BRITAINS 17826 WW2 SANDBAG EMPLACEMENT 1 PIECE 54MM ACCESSORY,.BRITAINS 16015 - British Royal Artillery 6 Pound Gun with 4 Man Crew,.Brio Wooden Railway Trains Travel Rechargeable Train 4 Pieces Age 3+ 33746,.BRITAINS 36011 FRENCH LIGHT INFANTRY VOLTIGEURS IN GREATCOATS FIRING LINE SET 1,. The parties Miss oh Stuffed Plush Soft Toy Stofftier realistic Pelican 36cm.L,.

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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, Trudi 64261 BAMBOLA Aida Con pecorella Doll, 24 cm,; DC Batman Classic TV Series 66' Batman & Robin wall climbing box set 2013 NEW, (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, 2017 Giorgio Beverly Hills Limited Edition Collector's Bear Brown Plaid Bow,; 437 N.E.2d 663 (1982)Mark XLIII Artist Mix Iron Man Collectible Figure Avengers Age of Ultron Marvel,.The Puppet Company - Full Bodied Animals - Yellow Labrador,.MIGHTY MORPHIN POWER RANGERS MMPR MCDONALDS ACTION FIGURE AND TOY LOT SEALED ,. The Illinois Court of Appeals, relying on Partridge, supra,Pokemon Go Shiny Squirtle,

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.Britains 20172 Harrassing Fire Set No1 - 2 Piece Ltd. Ed. of 500 Sets,.LEXIBOOK - JL1800 - Mini Arcade® Center Game,.DC Direct Collectibles INFINITE CRISIS ALEXANDER LUTHOR 7 Figure Wave 1 UK,.24 Giant Light Brown Teddy Bear Kids Stuffed Animal Cuddle Toy Plush Doll Gift,.Melissa & Doug Unicorn Plush Toy White - 30 inches,. The ScottsdaleExceptional Home Pigs Plush Stuffed Animals Set - 18 Pig with Baby Piglet - - -,Mattel Interaktywny Koń + Lalka BARBIE,.Neca TMNT Arcade Game SDCC 2016 Exclusive Raphael Loose Complete raph AUTHENTIC,. Id.,NEW - HAPPY BIRTHDAY SOFIA - Teddy Bear - Cute and Cuddly - Gift Present,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, BRITAINS 20077 - British Collapsed Bell Tent,; Squishable Comfort Food Iced Coffee - 15 ,Jellycat Special Edition Mimi Bashful Bunny Rabbit BNWT,.TUDOR 9072 NFL ELECTRIC FOOTBALL 2017 NEW UNOPENED BOX,. The ScottsdalePOKEMON XY MEGASWAMPERT SOFT TOY snowman Swampert mega x y Laggron Sumpex plush,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Used Teddy Bear Sooty UK limited 2011 Steiff Stuffed Toy From Japan F S,; 109 Cal.Rptr. 811; DC UNIVERSE CLASSICS SIGNATURE COLLECTION JUSTICE LEAGUE JLA HUNTRESS FIGURE,. 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, Electronic football game tudor superbowl metal vintage w box Receipt From Tudor,; 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, Marvel X-Men Classics 6 TECH GEAR BEAST New Rare ,; 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, Britains 43154 The Coldstream Regimentt of Foot Guards Colour Party 1815,; 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, Vintage Casino 5 in 1 Hand Held Poker Travel Multi Game 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, Brand New Jada Metals Diecast 6 inch Iron Man Civil War with Light up Chest M55, (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, Macy's Lot of 4 Stuffed Christmas SantaBear Great Condition,; 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 PartridgeBritains Toy Sodiers No 8802 Worcestershire Regt.,." State Farm Fire Casualty Co v Huyghe, William Britains Redcoats Drummer, 2nd Coldstream Foot Guards 1812-1815 44013,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheDC Universe Classics GENTLEMAN GHOST 6 Action Figure DCUC TRU Mattel 2010,State Farm Fire Casualty Co v Camara, supra.(5) 8 KellyToy SQUISHMALLOW Valentines Lot All New w Tags UltraSoft,independently of use or ownership of a vehicle.

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