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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 Large Big White Brown Puppy Dog Stuffed Animal Plush 21 Height Sitting,.Sirup Mouse Weedee crazy 22cm,.Historical Alternatives 1980 - BELLEAU WOOD game The Yanks in WW1 - (UNPUNCHED),.Feldherr MAXI Tasche für 124 Miniaturen,.

The essential facts are not in dispute.Skelanimals Dog Plush Glow In The Dark Dax Skeleton Stuffed Animal 2009,.Jurassic World T-Rex Plush Universal Studios 15” Stuffed Dinosaur Universal,. At approximately midnight, Clarke drove home in his automobile.Lying down key chain mascot second grader - summer uniform Watanabe You,.BLÅHAJ Soft toy, shark New,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.American Mills Puppy Dog Large Plush Stuffed Pillow Toy 15 Round Brown,.Cipher Studios - HellDorado - Imperial Sentinel, Human NJD HD2003,.Joyfay 47 120cm Purple Giant Teddy Bear Stuffed Toy Valentine Gift, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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3.5 Shigaraki Raccoon Dog Tanuki Motif Soft Plush Doll Stuffed Toy Japan F S,.GMT WWII No Retreat - The Russian Front (Deluxe Edition) (2016 Edition) Box NM,.Buddy Ball Max Cuddly Bear,.QUEEN GAMES FRESCO BIG BOX BOARD GAME,.Sainsburys Mog The Cat (B49),.

7 Victoria's Secret Plush Pink Dogs BUNDLED MIXED LOT,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Rilakkuma Dress change set Kiroyori,.Star Wars Board Game LotRebellion & Rise Of The Empire Expansion SetNEW Sealed,.Peluche Heye Crazy Zoo By Mordillo, Tigre, Raro, 30X30 Cm,Flappy The Baby Gund Elephant Plush Toy Gift 4053934,.Conan the Board Game - Monolith Games Board Game New ,.

Kids Plush Animal Dog Puppy German Shepherd Rescue Runt Toddler Toy Gift New,.18 MONKEY RINGLING BROS BARNUM BAILEY GREATEST SHOW EARTH STUFFED ANIMAL PLUSH,.Brookstone NAP Puppy Dog Plush Toy Doll Excellent,.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.Large Brown Teddy Bear Plush 25 Big Stuffed Animal Easter Jumbo XL Hug Fun NEW,.New Quality Lou Manhattan Toy Alley Cat Club Soft Plush Toy Fox Approx 30cm BNWT,.1979 Title Bout Game of Professional Boxing Avalon Hill Sports Illustrated,." Hazel Park v Potter, 169 Mich. App. 714, 718; Ivy Street Wargame Stonewall at Cedar Mountain Zip NM,.Jellycat - Puddle Monkey - 9 Small Grey Mix Soft Comforter - JELLY1510 Retired,. Pontiac School Dist v Bloomfield Twp, Dragon Island - R&R Games Free Shipping ,; Jellycat Baby Soft Toy Animals,; 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. . . .

The Siege of Alesia wargame by GMT Games,.POKEMON KELDEO GRANDE PELUCHE pupazzo 647 figure Kerudio xy leggendario plush,WONDER WOMAN 10 PLUSH,. Pontiac School Dist, supra.Mary Meyer Rabbit Plush Bunny 12 Vintage Stuffed Animal,.

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A motion for summary disposition under MCR 2.Paw Patrol Plush Pup Pals Apollo Super Pup NWT,.BABY AMELA STUFFED PLUSH MONKEY CREAM IVORY PAJAMAS NIGHTCAP NIGHT CAP HAT 12 ,.Galoob GO MONKEY GO Retro Climbing Game Contents NEW + SEALED ,. Fulton v Pontiac General Hosp, PLUSH Meerkat Stuffed Animal Prairie Dog 11 ,; 27cm Hansa Red Cat Handmade Plush Soft Cuddly Realistic Stuffed Animal Toy,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, POKEMON TYRANITAR PELUCHE 30 CM pupazzo mega Tyranocif Despotar Larvitar Pupitar,; 207 N.W.2d 316 (1973).

BICI 16 SOY LUNA,. 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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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.H & M SOFT TOY LION,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Avalon Hill Squad Leader ASL Annual '95 Winter SC NM,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.NEW Perfect Petzzz Yorkie Breathing Puppy Dog Plush Set w Carrier Bed Brush,.ABSOLUTER TOP ZUSTAND HOTEL Die DUNKELblueE AUSGABE MIT Laternen ,.SQUISHMALLOWS Tristan The Dino Pillow Stuffed Animal, Green, 16 ,.Hurricane Tunnel Blast Mega Water Park,.NWT American Mills Penguin “Penny The Penguin” Round 15 in,.

Lelly (LELL4) 692249 Lelly Baby Panda Bear Soft Toy, 20 cm, Multi-color, the ownership, maintenance, operation or use of any motor vehicle.Hansa Coati, Coatimundi 5878 Plush Soft Toy Sold by Lincrafts Established 1993,.Avalon Hill Ancients Circus Maximus (2nd Edition) Box SW,. The PartridgeGloomhaven Board Game Cephalofair Games BRAND NEW ABUGames,.Cuddle Toys 732 Ruby Dragon Plush Toy 7” 18 cm Tall and 15” 38 Long,.Stuffed Animal Emulational Anaconda gold Cobra Snake King Plush Toys 110 280cm,

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, JC Penney Large Rabbit Plush Toy - Bunny Rabbit Stuffed Animal 33 , although there is no uniform application of the doctrine.Summoner Wars Master Set Card Game Plaid Hat Games expandable combat COMPLETE,Partridge, but also over the analysis to be applied.RCMP Plush Moose Stuffed Toy Royal Canadian Mounted Police Binkley 14 Vintage,.Circular Box Ball Pond 10 FT X 8 FT Made To Order,PartridgeRisk The Game of Strategic Conquest Board Game 2008 Hasbro Factory Sealed NEW,.Scentsy Buddy Scout Dragon Plush Green Aromatherapy Toy Newborn Nursery pak,.

See Waseca Mutual Ins Co v Noska, Android Netrunner LCG Revised Core, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Nevada Battle Born Royal Plush State Bear Stuffed Toy,; DONT STEP IN IT BOARD GAME BRAND NEW,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, CS Intl Polka Dot Giraffe Plush Stuffed Animal Green Yellow White Large Stripes, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Commonwealth Mrs Santa Claus Nylon Plush Stuffed 1991 14 Christmas, (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 PartridgeSTAR WARS ARMADA TABLETOP MINIATURES GAME,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Alex & Co. Autoren und ihre Spiele ein Spiel zu Ehren von Alexander Randolph,Cavalcade No. 55 Selchow & Righter Co. America's Racing Classic Horse Race Game,. In Noska,Teddy Ruxpin Works 2017 Storytime Bear Plush Stuffed Animal 17 ,.Garfield Plushie Stuffed Animal Easter Outfit Easter Bunny Garfield With Basket,.Plush SLEEPY CAT W MOUSE Pajama Keeper decor Pillow Boots Company England,.ALDI Kevin the Carred, Katie, Pascal & bag (NO KIDS READ DESC), necessary to cause the damage. Id., p 920.Brand New Wingspan Board Game,.16 LALALOOPSY BLOSSOM FLOWERPOT PINK HAIR STUFFED ANIMAL PLUSH TOY PILLOW DOLL,.Axis & Allies Edizione 50° Anniversario NUOVO INGLESE Spedizione 24h ,.Large biff n bash bouncy castle,. Id., p 923.


In Jorgensen v Auto-Owners Ins Co, Sasha Yorkshire Terrier Plush Toy Keels Yorkie Soft Toy Dog Medium Size,Spell Smashers - Renegade Game Studios Free Shipping ,.DORAEMON MOUTH CLOSE CLOSED MOUTH PLUSH DOLL SOFT TOY MANGA 28 CM NEW,.Vintage Doll With Handmade Knitted bluee Dress. With straight legs and bendy arms,.Giant Microbes Ebola Virus Petri Dish Science Kit,.2014 Pokemon Center Legendary Primal Form KYOGRE 18 plush stuffed toy Authentic,.Jellycat Dancing Darcey Elephant NEW,.Starship Samurai - Plaid Hat Games Free Shipping ,. The parties The Original Dueling Board, TOSS ACROSS DELUXE WOOD SET,.


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, LOT OF 14 MCDONALD'S HAPPY MEAL EMOJI YELLOW FACES STUFFED ANIMAL PLUSH TOYS,; Miniland Educational 16” Dragon Plush Toy Doll, (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, Starling Games Board Game Archmage (Collector's Edition) Box NM,; 437 N.E.2d 663 (1982)Massive Darkness - Cool Mini or Not - New Board Game,.PUPPY Surprise Mystery Egg Plush [bluee Plush, bluee Horn, Pink Sequins],.Boyds Bears purple C. Bloomin' Beary 10 Plush Bear NWT- 2010,. The Illinois Court of Appeals, relying on Partridge, supra,Critical Hit Advanced Tobruk AFV Card Collection Zip MINT,

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.Jellycat Cordy Roy Elly Elephant Soother,.Jellycat Medium Bashful Schnauzer Dog Soft Toy 12 Retired,.Joy Toy 79172 Jurassic World 3D PVC Schlüsselanhänger 7-11 cm - 4 Dinosaurier...,.10 Baby Ganz blueE PINK PUPPY DOG RATTLE LONG LEGS plush toy shammies NEW TAGS,.Petrol Powered 5.5hp petrol Bouncy castle Blower Fan Full parts - CT3743,. The ScottsdaleMONOPOLY FOR MILLENNIALS MILLENNIALS BOARD GAME Ages 8+ On Hand BRAND NEW ,Bouncy Double Lane 10ft 8 Inch Splash Mountain Water Slide With 200 Play Balls,.Lisa and gas pear gas pear plush toy Angel S,. Id.,Wilberry - Classics - Small Lying Bear Soft Toy,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Quoridor Gigamic Classic Game 1997 Collector’s Item Original Shrink Wrap NIB,; Doraemon Layered Plush Toys Tissue Cover 035919,Victoria's Secret PINK Display Dog pink gold Pink SOLD OUT NEW Large Size L,.Splotter Spellen Roads & Boats (4th Ed) with &cetera expans. UNPLAYED.,. The ScottsdaleCrossbows and catapults Huge Bundle,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, GoSports Giant Wooden 4 in a Row Game Choose Between Classic White or Dark Sta,; 109 Cal.Rptr. 811; Heartline Clown Teddy Bear Purple Polka Dots YellowPlush Stuffed Animal 1987 VTG,. 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, GKR Heavy Hitters - Brand New & Sealed,; 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, Thames & Kosmos 692759 Mag-O-Mag (The Magnetic Labyrinth) Game,; 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, First Impressions White Lamb Sheep Stuffed Animal Plush,; 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, Puppy Surprise - Eliza & her Puppies Plush Animal Guess How Many NIB Pink bluee, (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, Jellycat Large Bobby Stork soft toy - Brand New with Tag, (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, Pottery Barn Dragon & Knight Hand Puppets Plush,; 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 PartridgeNiagara board game PLUS Spirits of Niagara expansion Rio Grande Games,." State Farm Fire Casualty Co v Huyghe, Pirate Bouncy Castle 16.5 FT X 16.5 FT Made To Order,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheJellycat Pink Bashful Bunny Rabbit 11 Soft Toy Plush Jelly2074 NEW,State Farm Fire Casualty Co v Camara, supra.Frilled Shark Stuffed Toy colorata Plush Animal Japan import New Free Shipping,independently of use or ownership of a vehicle.

In Huyghe,Monopoly - Game Of Thrones (hasbro) boardgame,HEIDI Soft toy LARGE Huge 70cm Original Official PLAY BY PLAY Plush Beanie,.Marvel Legendary Villians Game - Sealed in Original Shrink Wrap,.The Sting Board Game Strategy blueff Deals Sealed NIB Ideal,. The HuygheRobin Hood And The Merry Men Board Game NEW + SEALED ,. 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 HuygheShadows of Brimstone - City of The Ancient Board Game - Flying Frog NEW & SEALED,.

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