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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 BraveStarr - Luminaire en papier à suspendre (neuf en sachet),.Tamashii Nations Sofvi Spirits Hakuja Pacific Rim Uprising ,.25cm sexy Bikini Warriors 1 7 Valkyrie adult action PVC figure toys,.Nendgoldid Touken Ranbu Online Horikawa Kunihiro Good Smile Company Japan NEW,.

The essential facts are not in dispute.Good Smile Vividred Operation Palette Suit Version Akane Action Figure,.MCFARLANE TOYS AKIRA JOKER THE CLOWN BIKE GANG LEADER 3D ANIMATION JAPAN 2,. At approximately midnight, Clarke drove home in his automobile.STUDIO GHIBLI - IL MIO VICINO TOTgold PORTAPRANZO SEMIC,.Figuarts ZERO Bartolomeo - Straw of gang affiliated Ver.-,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.RASHID FIGURA 15 CM STREET FIGHTER V -SH FIGUARTS-,.Second bullet Bakemonogatari Katanagatari x C Awards Sengoku Nadeshiko Premium F,.Kaitou Sentai Lupinranger VS Keisatsu Sentai Patranger DX PATO KAISER set, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Super Action Statue TV Animation Drifters Nobunaga Oda Figure Japan new .,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Anime High School DxD action figure Rias Gremory Himejima Akeno sexy deamon japa,.Jinbei Megahouse Portrait.Of.Pirates Anime One Piece NEO-DX Jinbe Jimbe Jimbei,.HATSUNE MIKU SEPTIMO DRAGON 24 CM-HATSUNE 7TH DRAGON TYPE 2020 ESC.1 7 BOX 9.5 ,greyAIA NO KAJITSU - Kazuki Kazami Nendgoldid Action Figure Good Smile,.DR. SLUMP & ARALE - Gatchan & Gatchan Pvc Figure Sentinel,.

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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.Tsukuda Hobby Figurine Neon Genesis Evangelion Ayanami Rei RARE Japan Figure,.Vintage Airfix Military Series WWII Gurkhas 1 32 Scale Poly Figures Sealed Box,.Incredibles 2 - Elastigirl on Elasticycle Pop Ride - FunKo Free Shipping ,." Hazel Park v Potter, 169 Mich. App. 714, 718; ONE PIECE - DX Figure The Grandline Men 15th Vol.8 Don Quixote Doflamingo,.VOCALOID - Lily from o.v.e. anim. Nendgoldid Figurine Phat Company,. Pontiac School Dist v Bloomfield Twp, Assorted model cars plus figures , plus different other items, toys hobbies,; 4 LEAVES blackESMARKEN IRISDINA BERNHARD 12 CM ANIME FIGURE 5 BOX (MODEL 2),; 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.HAIKYUU - Shoy Hinata Figma Figura De Acción Articulable Spanish Seller,.ROBOT SPIRITS SIDE FRANXX DARLING in the FRANXX Strelizia Figure BADNAI Japan,.Jouet intime Little Paul pink,. Fulton v Pontiac General Hosp, Revoltech Muv-Luv Alternative No.010 F-18E F Super Hornet Raging Busters Figure,; Figurine Dragon Ball Super - Trunks du futur (Dxf Collection),. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Kotobukiya To Heart 2 Another Days Konomi Yuzuhara Ani-Statue,; 207 N.W.2d 316 (1973).

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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.GODS WAR Elohim GIOCO DA TAVOLO + OPUSCOLO ALLEGATO le guerre di Dio MAURO BIGLI,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Bioman - Verre à moutarde Amora Pibbolo et Motsu ,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.FREE SHIP Alien Revoltech SciFi Super Poseable Action Figure Alien Big Chap,.Suzumiya Haruhi No Yuutsu Yuki Nagato (1 8 Scale PVC) Japan Import,.Girls und Panzer - Sardelle Figfix PVC Figure Max Factory,.Samurai Troopers Ronin Warrios Cel Mukara (1) Kikoutei Densetsu OVA,.Moderoid Mazinkaiser Plastic Model Kit Good Smile Company From JAPAN F S,.

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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, Legacy OF Revoltech Patlabor Helldiver PVC LR-006(ABS &, although there is no uniform application of the doctrine.Guilty Crown Taito Kuji (B) Figure - Taito - Ouma Mana,Partridge, but also over the analysis to be applied.Studio Ghibli My Neighbor Totgold Cat Neko Bus Collective Edition NOS-51 Figures,.Nendgoldid 526 Hizamaru Akari Good Smile Company,PartridgeHasegawa 1 72 Macross Vf-1s Grève Valkyrie Battroid Kit Modélisme Nouveau,.Set of 10 figurines antique PVC Schleich series Maya the bee - Willy Biene Maja,.

See Waseca Mutual Ins Co v Noska, New S.H.Figuarts Super Saiyan Trunks Dragon Ball Z Version JAPAN, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Kb04c Max Factory Muv-Luv Alternative Total Eclipse Yui Takamura Action Figure,; SHINING WIND - Clalaclan Philias Ver. 1 8 Pvc Figure Kotobukiya,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Figurine Revoltech Kenshiro Final Battle - Fist of The Norh Star - Kaiyodo, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Fewture Devil Man Action Figure Devilman Zann Second Series Limited color FA-A06, (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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In Jorgensen v Auto-Owners Ins Co, DRAGON BALL SHENRON red, FIGURA + 7 BOLAS DE DRAGON 4cm + EXHIBIDOR,YUUKI YUUNA WA YUUSHA DE ARU - Yuna Yuki Hero Edition Nendgoldid Action-Figur,.Dragon Ball Z Action figures HUGE LOT 6 Vintage Figurines,.Cu-poche Extra 08n NAGOMI Set Figure Accessories KOTOBUKIYA NEW from Japan,.Wave Miki Sayaka Beach Queens Ver. (PVC Figure) Wave Puella Magica [JAPAN],.Academy Moomin Collection 15755 Moomin Boat in a Tranquil Ocean,.Mawaru Penguin Drum Princess of the Crystal Max Factory action figure Figma,.ONE PIECE FIGURA DONQUIXOTE DOFLAMINGO 20 CM- ANIME FIGURE BATTLE VER 8 BOX,. The parties Shirahoshi (normal color ver.) (One Piece CREATOR × CREATOR SHIRAHOSHI Shiraho,.

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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, Figma 002 The Melancholy of Haruhi Suzumiya Haruhi School Uniform ver. Figure,; Fate Stay Night Saber Alter Huke Metal Gear Illustrator Ver PVC Figurines Boxed, (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, The most lottery Piece Heated bonds ed B Award ace figure,; 437 N.E.2d 663 (1982)The Nightmare Before Christmas - Sally 5-Star Vinyl Figure - FunKo Free Shipping,.Robot Spirits SIDE MS MSM-03 Gogg ver. A.N.I.M.E. Gundam 125mm Action Figure,.ZOIDS LBZ06 LB Red horn,. The Illinois Court of Appeals, relying on Partridge, supra,Good Smile Snow Miku Snow Bell ver. Figma Action Figure,

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.SHUNYA YAMASHITA Linkwood Japan Ver. 1 7 Pvc Figure,.S.H. Figuarts Suite Precure ♪ cure rhythm (soul web only),.Moekole Plus No. 24 Komaki Manaka Bishop Ver. Atago De Ikuno 1 8 Pre-Painted,.Revoltech TAKEYA No.011 ZETMAN ZET Figure KAIYODO NEW from Japan,.Naruto Shippuden Shonen Jump Gals Series Sakura Haruno PVC Figure Model Toy,. The ScottsdaleMobile Police PATLABOR Revoltech Ingram 1 Movie ver. Figure Japan Doll Toy,NEW Nendgoldid 508 IS Infinite Stratos Laura Bodewig Figure Good Smile Company,.Vampire Savior Capcom Action Real Hero Series Figure 02 - Morrigan,. Id.,Brook Special Colour (One Piece - Creator X Creator) Action Figure,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Nendgoldid Juzumaru Tsunetsugu Touken Ranbu -ONLINE- USA Seller,; Kaiyodo Monsieur Bome Collection Vol 3 She Devil ONI MUSUME Action Figure NEW,Figma Plawres Sanshiro Juohmaru Original Edition JPWA JAPAN F S J6232,.ZOIDS Zoids Buster Tortoise 1 72 scale model 06,. The ScottsdaleMegahouse Tiger and Bunny Kotetsu T. Kaburagi G.E.M. PVC Figure JAPAN F S J5992,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Figurine Guardian of the Imperial Capital Athena Eikoh Manga,; 109 Cal.Rptr. 811; Fate Grand Order Face Swap (Saber Altria Pendragon) Nendgoldid - Good Smile Compa,. 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, [WF2015] figma Shimamura Uzuki Jersey Ver.,; 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, Max Factory Kancolle Yamato Kai Light Armament Version PVC Figure JUL148345,; 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, Figure a molla TIGER MASK MISTER X WEEKLY 1999 KODANSHA,; 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, SAILOR MOON - HARUKA TENOU SAILOR URANUS FIGURE 20cm (SHFIGUARTS REPLICA), (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, Revoltech Getter Robot Arc NR91, (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, Dragon Ball Z Battle of Saiyans Vol. 2 Super Saiyan Goku WCF PVC Figurine,; 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 PartridgeREVOLTECH - Series No. 039 - GAIKING (Face Open Ver.) KAIYODO Figure - Go Nagai,." State Farm Fire Casualty Co v Huyghe, Figura Super Saiyan God Son Goku Cyokuku Buyuden Dragon Ball Super 22cm,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheLegacy of Revoltech LR-009 Mobile Police Patlabor AV-98 INGRAM 2 Figure KAIYODO,State Farm Fire Casualty Co v Camara, supra.Portrait.Of.Pirates One Piece Series NEO-DX Trafalgar Law,independently of use or ownership of a vehicle.

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