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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.


Defendant Melinda Clarke appeals Britains Crimean War 3110 The 11th Hussars Special Collectors Edition,.Yuru Camp Nadeshiko Kagamihara Nesoberi Big Plush FuRyu Prize NEW from Japan F S,.VW Plush Motorsport Teddy Bear Volkswagen Accessories 5GV087576 Genuine BNIB,.The Walking Dead - McFarlane Action Figure - Series 2 - B&W Bloody Governor Penn,.

The essential facts are not in dispute.Sigikid 38483 Müsli Maus Beasts Soft Toy,.Collectible Figure Plastoy The Smurf Covering His Ears 00161 (2015),. At approximately midnight, Clarke drove home in his automobile.SIMBA My Music World Drum Set,.Mezco TOYZ Fluffenred CREEPY Cuddlers II ZOMBIE Cat KITTY Plush TOY Undead,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Zebra MARTY 31 cm Plush toy by,.Yuri on ICE × Sanrio Victor Plush Toy L size about 30 cm high,.NEW MGA 5 Card Draw 7 Card Stud Handheld Game (C), Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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BRITAINS 50036C REDCOATS COLLECTORS CLUB BRITISH 48TH FOOT 1755-63 TOY SOLDIER,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Marvel Legends Cosmic Spiderman Captain Universe Vulture Wave 6 Inch Action Fig,.New Hizawanko Laptop Dog Shiba Puppy Beige Stuffed Toy F S,.SL FASHIONS BABY blueE MONKEY STRIPE SECURITY BLANKET STUFFED ANIMAL PLUSH TOY,Marvel The Thing Civil War Mini Bust minor damage,.BRITAINS ZULU WAR 20025. 24th Foot Defending the Barricade Against Zulu Warrior.,.

Epoch LCD Game Japan Anime Doraemon Pararell Adventure Japan Free Shipping ,.MARVEL SELECT CAPTAIN AMERICA ACTION FIGURE (DIAMOND),.BRITAINS 43124 blueECOATS US REGULAR INFANTRY PRIVATE 1846-51 METAL TOY SOLDIER,.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.VINTAGE X-MEN MARVEL COMICS Kids Cyclops Dressing Up Playsuit Boxed Halloween,.Batman Classic TV Series Figures Series 5 Batman (Cowl) [Loose in Factory Bag],.BRIO Bob the Builder Travis & Spud Wooden Race Set 32812 Train Thomas ComVintage,." Hazel Park v Potter, 169 Mich. App. 714, 718; Marvel Legends Apocalypse series X-23 Purple figure,.Thomas The Tank Engine & Friends Train bundle 2,. Pontiac School Dist v Bloomfield Twp, Computer FlottenManöver Electronic Battleship MB Games Vintage box manual,; NEW in BOX DC Comics Kia Asamiya Batman Wave 1 Catwoman 6-Inch Action Figure,; 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.SEAT FURA SCHWEPPES 1 32 - Scalextric New Ref. A10074S300 New,.Kidrobot 5 Yummy Buttercream Cupcake Plush,.Circuit city with 2 Cars and 1 Helicopter - Multicolor,. Fulton v Pontiac General Hosp, DIAMOND SELECT MARVEL SELECT SPIDER-GWEN ACTION FIGURE,; Beast Kingdom Avengers Infinity War Ds-014 Thanos D-Select Series Statue,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, BM14 - Britains boxed set 1395 The Kings Own Scottish Borderers,; 207 N.W.2d 316 (1973).

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Rare 1970 Coleco Pro Stars Electric Action Football Game World Of Sports 5765A,. 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.



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.Brio Car Park Roads and Rails 7 pcs Parking Garage Wooden Toy Vehicle Wood 33204,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, 2016 Mattel DC Multiverse Suicide Squad Harley Quinn 6 inch Figure Adult Collect,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Melissa & Doug Giant Pig - Lifelike Stuffed Animal (over 0.5 meters long),.1980's Coleco Pac Man Mini Arcade Game,.National Geographics 8004332707097 Lelly Medium Snake Ngs, Natural,.DC Collectibles Red Nightwing and Earth 2 Flash Bundle Lot of 2 MIB,.NEW - LUCAS - Cute and Cuddly Teddy Bear - Gift Present Xmas Birthday,.

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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, BRITAINS 48014 ROYAL SCOTS DRAGOON GUARDS MOUNTED TROOPER METAL TOY SOLDIER SET, although there is no uniform application of the doctrine.Peter Rabbit Medium Stuffed Toy Plush Doll 37cm Cute,Partridge, but also over the analysis to be applied.Brio Railway Farm Set 20-Part Rails Animals Accessory for Wooden Train Rail Toy,.William Britains U.S. Navy Sailor Dress bluee Service Uniform 13006,PartridgeSquishmallow Justice Exclusive 16” PENELOPE the PANDA Pandacorn Plush Pillow,.BRITAINS 40281 ISAMBARD KINGDOM BRUNEL MASTERS OF SCIENCE METAL CIVILIAN FIGURE,.

See Waseca Mutual Ins Co v Noska, BRITAINS SCOTS GUARDS COLOUR PARTY WITH STATE COLOUR 5991 54MM, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Toybiz Legendary Heroes Series 1 Savage Dragon Loose Action Figure,; Marvel Legends 10th anniversary Ant-man Figure Loose,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, BRIO BUILDER SYSTEM SPARES RARE, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, NEW Vintage Handheld Electronic 2-Player Baseball Game NIB NICE Sports Unplayed, (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 PartridgeHasbro Marvel Iron Man 3 Sonic Blasting Action Figure,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, 78''Huge Soft Giant Big White Teddy Bear Plush handmade Christmas birthday gift,47 Giant Big Hippopotamus Hippo Plush Soft Toys Doll Stuffed Animal Pillow Gift,. In Noska,William Britains WWI 23073 Move Up British Officer Kneeling and Infantryman,.BRITAINS BRITISH DRUM MAJOR 1ST FOOT GUARDS 1754-63 47005 54MM,.HOOTY OWL MICROWAVEABLE HEATED TOY CUDDLY SOFT TEDDY HEATABLE MICROWAVE KIDS NEW,.RedShield WS-201TX Remote Control Key for WS-100 Wireless Alarm System, White, necessary to cause the damage. Id., p 920.SOCCER SOCCER perfect condition box shims in polystyrene,.18 Mama With Baby Hippo - CASE OF 8,.Minions Talking Minion Think Way-Thinking Toy Tim, Mel Speaking, Laughs,.Happy People 58983 Haflinger Thgoldughbred Horse,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, New Cuddly Soft Hugfun Plush Sitting Bear Toy Gift Kids Teddy Stuffed Xmas Toys,REBUILT 1981 Pac-Man Vintage Table Top Mini Arcade Game By Midway Coleco Pacman ,.Warex Dutch Netherlands Girl Dog Stuffed Animal Plush 17 Inch 1970's,.MODOK (M.O.D.O.K.) SPECIAL Eaglemoss Classic Marvel Figurine,.National Geographics PANTHER Stuffed Animals Plush Toy (Large, Natural),.Britains Soldiers 23101 WWI German 1908 Hf11 Field Kitchen Set - 20 Pce,.Lifelike Giant Big Cuddly Deer Plush Soft Stuffed Doll Toy Reindeer Animal DOLL,.1998 ToyBiz Marvel Comics Famous Covers ROGUE 8 Inch Figure NIB,. The parties Britains Collectors Club 40273 COLOUR PARTY OF THE KING'S OWN SCOTTISH BORDERERS,.

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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, New Joke Master Jr. by Excalibur. Sealed never opened ,; MCFARLANE SPAWN SERIES 23 MUTATIONS WARRIOR LILITH gold BRA VARIANT NOSC 2003, (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, Lobster Mantis Shrimp Plush Toy Stuffed Doll Simulated Lifelike Pillow Bolsters,; 437 N.E.2d 663 (1982)Teddy Bear Collection 7 hand made in knitted sweaters, Brand New and Sealed,.VINTAGE BATTERY OPERATED SWEEPING BUTLER TOY CLEANING PIECE STILL WORKS DUSTPAN,.Hermann Teddy 927815 Berner Sennenhund lying 60cm 24inch- Made in Germany,. The Illinois Court of Appeals, relying on Partridge, supra,Ty Beanie Boo XL 25 (63.5Cm) Rainbow Poodle Plush Collectable Toy (12+ Months),

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.NECA Aliens Joan Lambert Compression Suit Aliens Series 10 New 7 Action Figure,.FIGURINE MARVEL SELECT CAPTAIN AMERICA,.2017 Giorgio Beverly Hills Limited Edition Collector's Bear Brown Plaid Bow,.70cm Sprawled PANDA Stuffed Animals Plush soft Toys Doll Novel kids Xmas Gift,.Unicorn Plush Toy Large Stuffed Lying Animals Pink Photography Prop Dolls Gift,. The ScottsdalePlush & Company 05757 Peluche Delfino L 90 CM Dauphin Dolphin,Barrett And Sons, Cat In Basket And Kittens Playing Grey 927 Old Plastic,.Avengers Marvel Infinity War Titan Hero Series Thanos Power FX Port Figure Toy,. Id.,The Wombles Of Wimbledon Large Soft Toys Pyjama Holder Hot Water Bottle,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, BATMAN HUSH - COLLECTOR ACTION FIGURE - SUPERMAN,; Realistic Large Panda Bear Stuffed Toy Body Pillow Weighted Animal Plush Teddy,Brio CARGO HARBOUR SET Wooden Toy Train BN,.Fawn deer - exquisite collectors soft toy by Kosen Kösen - 21cm - 3530,. The ScottsdaleBritains War Along Nile British Naval Brigade Kneeling Firing 27053 Boxed,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, NEW Cute and Cuddly Little WHITE Teddy Bear X 23 - Gift Present Birthday Xmas,; 109 Cal.Rptr. 811; Set Firing Future Star Training Gun All new,. 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, Retro grandstand invader from space vintage games console boxed,; 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, New Classic movie role toy Avengers Joker Superman Batman action Toy Latest gift,; 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 Pre-War from set Clarabelle Cow 20H . Lead Figures vintage toy,; 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, RACE THRU SPACE Rare Coleco Vintage Electronic Tabletop Handheld Game 1978 CIB, (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, VINTAGE TUDOR TRU-ACTION ELECTRIC FOOTBALL GAME 1950's WITH PLAYERS, (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, LITTLE JELLYCAT STARY NIGHTS RETIRED SOFT TOY ELEPHANT,; 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 PartridgeHusky, Siberian Husky 15.5 inches, 40cm, Plush Toy, Soft Toy,." State Farm Fire Casualty Co v Huyghe, 10in Plush Unicorn With Wings - Assorted colors - CASE OF 120,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheB23009 W.Britain 1916-18 German Infantry Kneeling Firing World War I,State Farm Fire Casualty Co v Camara, supra.Grumblies - Bolt Plush -,independently of use or ownership of a vehicle.

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For example, in Partridge,Vintage DC Comics Batman & Robin In Batmobile 1976 Azrak Plastic Toy Hong Kong,. In Jorgensen, supra,160cm Giant Large Dinosaurs Rex Plush Toys Soft Cuddly Stuffed Green Xmas Gift,. Therefore, the non-auto-related negligence had been established.Bullseye Soft Toy from Oliver Bill Sykes English Bull Terrier Dog Rare 2005,. The Illinois court in U S Fidelity Guarantee, supra,My Arcade Gamer V Portable with Data East Classics [Brand New],. That is the same situation in this case.Hasbro Electronic GUESSTURES Game of Split-Second Chances Handheld Game- NEW,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.NIB Video Poker Game RecZone 7in1 Portable Touch Screen Very Fun Device,. Detroit Edison, supra.

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