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 DC COMICS SUPER HEROES BATMAN REACTIVATED SERIES 1,.Geniune Brio Wooden Train Rare Eurostar Train of the World Series Thomas 33424,.Ultimate Spider-Man Titan Hero Buitre Figura De Acción,.Scaleauto Bodywork Mercedes SLS 1 24 White as Set,.
The essential facts are not in dispute.Marvel Select - The Incredible Hulk Action Figure,.NECA Aliens Joan Lambert Compression Suit Aliens Series 10 New 7 Action Figure,. At approximately midnight, Clarke drove home in his automobile.NEW Reaction Sports Senario Games Shooter Basketball Game Handheld Force 724,.Britains Soldiers VE Day Figure - British Army - A+ A+,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Large Soft Dog Toy Dog Plush Husky Wolf 70cm Cuddly Fluffy Big Pet Puppy Gift,.Magic Prince Reindeer Plush Animal Ride for Kids Medium,.Marvel Legends Mystique 6” (Walgreens Exclusive) X-MEN - NEW unopen, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.
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NECA Alien bluee Xenomorph Warrior 7 Alien Series 2 Action Figure Collectible,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Marvel Legends PUNISHER Walgreens Exclusive Series LOOSE FIGURE Avengers X-men,.Picsou - Distributeur PEZ - Picsou (patent number 3.942.683),.GRANDE FIGURINE 35 CM ARTICULEE SONORE IRON MAN - MARVEL - BRAS ANIMES LUMIERES,Bunny Rabbit 19 Soft Toy Plush From La Grande Famille By Moulin redy,.16 pc Avengers Infinity War Minifigs Super Hero Marvel Fit Lego Mini Figures UK,.
Spider-Man Action Figure of VENOM SNAP JAW From Amazing Spider-Man,.Marvel Legends 6 BAF Right Arm Man Thing, Right Arm Iron Monger,.American Made Giant Stuffed Moose Huge Stuffed Animal 45 Inches Tall and Wide,.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 2.40'' Giant Big Huge Elephant Plush Soft Toys Stuffed Animals Kids Birthday gift,.William Britains British Ensign King's Colour 1st Foot Guards 1754-1763 47004,.Gyutama Bacon Futon BIG Plush Toy (Lying Down),." Hazel Park v Potter, 169 Mich. App. 714, 718; orange Toys OS081 30 30 cm Buddy The Pirate Cat Soft Toy,.2 Marvel DC Batman + Spider-Man - Electronics Handheld LCD Game Rare Techno Srce,. Pontiac School Dist v Bloomfield Twp, Pokemon Pokemon Talking Plushie Plush DP Shimi Land Form,; BRITAINS DRUMMER 2ND COLDSTREAM FOOT GUARDS 1812-15 44013 54MM,; 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. . . .
LIGHT TAN SUEDE CAT WITH FLOWER CROWN ADJUSTABLE EARS 9 ,.BRITAINS SOLDIERS 10038 - U.S. Marine, 1833,VINTAGE 1983 GUND KARITAS 2124 BROWN TENDER TEDDY BEAR STUFFED ANIMAL PLUSH TOY,. Pontiac School Dist, supra.Star Wars Mr Potato Head 6 Figure Darth Tater Mixable Mashable,.
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A motion for summary disposition under MCR 2.Sea otter stuffed badge Nemo & Friends Sea rider Finding Nemo Dolly [To... Japan,.Jellycat Special Edition Emily Bunny BNWT,.My Arcade Karate Champ Micro Player Retro Arcade Game New,. Fulton v Pontiac General Hosp, Britains 36144 British 1st Battalion Foot Guards Officer No1,; Dc Comics Collectibles Super-Villains POWER RING Action Figure 17Cm New Nuovo,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, William Britains U.S. Marine, Vietnam 1966-68 No.1 13008 New Boxed,; 207 N.W.2d 316 (1973).
Super Friends Retro Action Figures Series 3 Flash [Loose in Factory Bag],. 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.
Tintin-Lot Cadres-Fusée, Museum, Dupondt Snow,. First, the policy's exclusionary language is not ambiguous.STEIFF DORMILI BUNNY RABBIT BUTTON TAG 2974 16 PLUSH KNOFF IN OHR GERMANY,.Hermann Teddy Collection 927389 29 cm Wolf Sitting Plush Toy,. See Allstate Ins Co v Freeman, supra, pp 665-667.VERY RARE VINTAGE 1996 MASKED RIDER LCD HANDHELD GAME TIGER NEW SEALED MOSC ,. We disagree with the trial court's second and third statements.MARVEL SELECT BARBARIAN HULK ACTION FIGURE TOYS 10 ,.
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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Marvel Universe Infinite Legends Figure 3.75 Vision .H READ DESCRIPTION,.
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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, DC Universe Classics Anti-Monitor Wave 17 bluee Lantern The Flash DCUC,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Casio Border Army CG-390 from 1987,.New Hasbro DropMix Smart blueetooth Music Gaming System (Model C3410),.Marvel Legends Deadpool Series CABLE 6 Action Figure Sasquatch BAF NEW ,.Vtech Toot-Toot Friends Kingdom Pirate Ship-Mu;ticolor,.National Geographics 8004332707653 Lelly Cheetah with Baby Ngs, Natural,.
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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 41147 WW1, Trench Set - German three Figures, although there is no uniform application of the doctrine.Husky 12 inches, 30cm, Plush Toy, Soft Toy,Partridge, but also over the analysis to be applied.Star Wars Electronic Episode 1 Galactic Battle Strategy Game 1999 New Sealed,.Marvel Universo Scarlet Witch Película Serie 4 Figura de Acción,PartridgeB20163 W.Britain Clearing The Yard Set _1 - 2 Piece Ltd. Ed. of 450 Sets Zulu,.Cuddle Toys 1855 61 cm Long Willard Sr English Sheepdog Plush Toy,.
See Waseca Mutual Ins Co v Noska, Spieyellowurg Rabbit Plush Toy, 17 cm, Model, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Spawn Angela Super Size 13 Ultra Action Figure 1996 McFarlane Toys New Unopened,; Six Flags Large Giant Jumbo plush stuffed Yellow animal 3 feet plus,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, BRITAINS 18046 BRITISH ROYAL IRISH GRENADIER STANDING LOADING METAL TOY SOLDIER, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Hasbro Legends Marvel Studios First Ten 10 Years Red Skull Hydra Soldier, (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 Dropmix Music Mixing Game System DJ Party Hasbro Official,DC Comics Fisher Price IMAGINEXT DC Super Friends Figure Clayface - Rare,. In Noska,OFFICIAL SQUARE ENIX FINAL FANTASY CACTUAR PLUSH SOFT TOY - BRAND NEW & SEALED,.Tddy Hermann Original a180 25 Rescue Dog Puppy Floppy Ear All Tags,.DC Bow-Wielding Wonder Woman Doll,.Marvel Guardians of the Galaxy 2 Crest Graphic T-Shirt, necessary to cause the damage. Id., p 920.NICO MINORU Marvel Comics Superhero Collection Eaglemoss Figurine Runaways,.Melissa & Doug Giant Giraffe - Lifelike Gift Stuffed Animal (over 1 meter tall),.Mattel Hot Wheels Star Wars Millenium Falcon Tie Fighter Spielzeug Ring Flieger,.SPIDER-MAN SIX ARM SPIDER-MAN MARVEL LEGENDS (KINGPIN BAF) 6 HASBRO ACTION FIG,. Id., p 923.
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In Jorgensen v Auto-Owners Ins Co, Rare 1970 Coleco Pro Stars Electric Action Football Game World Of Sports 5765A,Armor Battle - Mattel Electronics LCD Game 1978,.Wend Al, Town Town Series, Drummer (ref Pu 538) Soldier,.Trudi Monkey Paco 27423 Soft Toy Brown,.Brio MY FIRST RAILWAY BATTERY OPERATED TRAIN SET Wooden Toy Train BNIB,.BRITAINS 43124 blueECOATS US REGULAR INFANTRY PRIVATE 1846-51 METAL TOY SOLDIER,.BRITAINS 31077 ARTILLERY CREWMAN IN SHIRTSLEEVES + FUSE PUCH TOY SOLDIER FIGURE,.Eaglemoss Batman Chess Set Batwomen Issue 27 Set 1 Dc Chess,. The parties Talking HONEY BADGER Plush PG Rated Version RANDALLS 2012 NEW Sealed in Bag RARE,.
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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, SENTINELLE RIOBOT B-ÉMEUTE 2P MARVEL VS CAPCOM BX-07R CYBERBOTS FULLMETAL,; Game of Thrones 8 20cm BRIENNE OF TARTH Figure 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, BONANZA COMBO AUTO WORLD 7 SETS SRS317,281,296,323,297,324,320,; 437 N.E.2d 663 (1982)Sanrio Hippo Pink Plush Hello KItty Stuffed Animal Vintage 1976 Rare Japanse 14 ,.SHOOTING WATCH Pro game Hudson Japan used,.Britains 36138 British 44th Regiment Battalion Officer No2,. The Illinois Court of Appeals, relying on Partridge, supra,Hasbro Marvel Legends Series Avengers Infinity War 6 inch Iron Spider Thanos,
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.18 Mama With Baby Hippo - CASE OF 8,.WOODEN 34 PIECE TRAIN SET BRAND NEW WITH TRAINS & ACCESSORIES,.Marvel Legends Sandman Wave Green Goblin 6” Action Figure Complete Loose,.DC Super Heroes Supergirl w exclusive comic book - 2006,.Britains Toy Soliders Set 1613 British Infantry In Action 1940 Version,. The ScottsdaleNew RADICA Lighted Solitaire 2003 Electronic Handheld Game 74014 Auto-Open Lid,Jellycat Bashful Hyacinth Bunny (Medium 31cm),.BRITAINS 17244 AMERICAN FORWARD WITH THE COLOURS METAL TOY SOLDIER FIGURE SET,. Id.,Trudi 24 cm Penguin Plush Toy (Grey),.
The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, BRITAINS 50052C REDCOATS BRITISH 6TH REGIMENT 2014 BIRMINGHAM EVENT TOY SOLDIER,; Nerf Hulk Assembler Gear Figure Dart Gun Marvel Avengers Infinity War Toy Set,Britains set 3113 The 17th Lancers,.51'' Lion Plush Toy Huge Stuffed Animal Creative Simulation Doll Xmas Gifts A+,. The ScottsdaleWolf Dog Realistic Kids Extra Large Toy Stuffed Animal Plush Soft 30 XL New,Partridge but its application as well:
In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, W Britains 8952 5th Bombay Cavalry,; 109 Cal.Rptr. 811; Kuscheltiere.biz Unicorn ANGEL white 40 cm Plush toy by,. 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, Vintage lead 2 figures one lady carrying a bag and a purse and one man with hat,; 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, BRITAINS 43092 INDIAN MUTINY SECUNDRA BAGH TOY SOLDIER DIORAMA WALL SECTIONS SET,; 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, ALPACA LLAMA TOY 100% Alpaca Fur 47 (FREE SHIPPING) WE HAVE STORE,; 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 TIGER ELECTRONICS BIRD BRAIN-TALKING,SQUAWKING MEMORY GAME 1997-SEALED, (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, B36168 W.Britain Nassau Grenadier Standing Firing No.2 1815 Napoleonic, (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, X-Men Deadpool Figure Marvel Toy Biz 1995,; 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 PartridgePELUCHE RAVANELLO vitamini coop ortaggiotti penny market goodness gang plush,." State Farm Fire Casualty Co v Huyghe, Sphero Mini Green App Controlled Robot Ball,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheBasic Fun Retro-Styled Mini Arcade Games - Space Invaders, Ms Pac-Man, Tetris,State Farm Fire Casualty Co v Camara, supra.Ken-Tex 16 Vintage Pink Cat w Pillow Plush Stuffed Bedtime Rhymes New Talking,independently of use or ownership of a vehicle.
In Huyghe,95cm Big Airplane Soft Simulated 37'' Stuffed Aircraft Plush Toys Doll Gift,JUSTICE LEAGUE MARTIAN MANHUNTER FIGURA DE 13 CM DC COMICS 2008,. LANSAY GAKKEN DEFENDER - Electronic Game LSI - Tabletop 1983 ,.Fingerlings HUGS - BORIS - Friendly Interactive Plush Monkey Toy - by WowWee,. The HuygheW BRITAINS 17355 - BRITISH 62ND FOOT INFANTRY SET,. 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 HuygheBRITAINS 17714 BRITISH INFANTRY ADVANCING METAL TOY SOLDIER FIGURE SET 1,.
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Next, it is important to clarify that PartridgeJellycat Dapple Elephant Elly Comforter Soft Toy Grey Ears Baby Soother Plush,.1980'S PETER PAN PLAYTHINGS MASTER CHALLENGE COMPUTERISED Q & A GAME,.
For example, in Partridge,EMPLATE & DOA X-MEN GENERATION X TOY BIZ 1995,. In Jorgensen, supra,Coin Operated Mini Candy Grabber Doll Model Catcher Claw Arcade Toy for Kids,. Therefore, the non-auto-related negligence had been established.DC UNIVERSE - FIGURA LA women MARAVILLA WONDER WOMAN FIGURE 16cm,. The Illinois court in U S Fidelity Guarantee, supra,Hello Kitty & Dear Daniel Wedding Doll (Pearl) Japan impot,. That is the same situation in this case.Great Dane miniature collectable plush soft toy - Kosen Kösen - 6010 - 22cm,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Used Teddy Bear SINCLAIR Teddy Bear World limited 2012 Steiff Stuffed toy,. Detroit Edison, supra.
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