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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 Asmodee Pandemie - Auf Messers Schneide 1. Erw - 61043080,.Monopoly Fortnite E6603 Board Game,.Small Army - 330 piece M3 Scout Car-COB2368,.BILLIONAIRE by MATTEL SPEARS GAMES - 1996 - BRAND NEW and SEALED,.

The essential facts are not in dispute.Super Dungeon Explore - Erw. Tiefwurzel-Wolfsreiter,.Got To Hell Board Game - Race to Get Dante into the Inferno,. At approximately midnight, Clarke drove home in his automobile.Game For Fame the hilarious party board game,.Daring Contest Card Games Party Board Game Birthday Xmas Gift Leisure Fun Play,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Gung Ho Boardgame Pirates of Nassau Box VG+,.Supermarket Sweep Vintage Shopping Board Game Dale Winton 1997 - 100% Complete,.Deadzone 2nd Edition PRESALE Forge Father Starter Set Mantic New, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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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.SEALED Pearl PEARLESCENT White MONOPOLY COLLECTORS EDITION Pewter CAT Token ,.Ursuppe Primordial Soup German and English [Board Game 1997] SEE DESCRIPTION,.100-06692- Playmobil- Techno Chamäleon mit Agent Gene,." Hazel Park v Potter, 169 Mich. App. 714, 718; Spielkartenfabrik Dominion Basisspiel 2. Edition,.Taboo Jewish Edition The Game of Unspeakable Fun New Factory Sealed,. Pontiac School Dist v Bloomfield Twp, Tide of Iron by Fantasy Flight, Normandy campaign expansion WWII Europe,; Der Herr der Ringe Kartenspiel LCG - Die blacken Reiter - 1. HDR Saga Erweiter,; 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.Millennium Wars Korea (Unpunched, NM),.Ravensburger Jake and Never Land Pirates Doubloon Treasure Chest Game,.LA LEYENDA DE MULAN DE TRISAN EDIT. JUEGO DE MESA DEL AÑO 1998 NUEVO PRECINTADO,. Fulton v Pontiac General Hosp, Der Herr der Ringe - Die Wildnis von Rhovanion Erweiterung (DE),; THE 80 S REAL ESTATE TRADING GAME- A GAME FOR YOUR GENERATION--MONOPOLY,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Amigo Spiel Privacy 2 - 61009981,; 207 N.W.2d 316 (1973).

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Level 7 [Escape] Sci-Fi Survival Horror Board Game PIP32001 by Privateer Press,. 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.Moods Adult Board Game from Hasbro Complete It’s All In The Way You SayIt Game,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Ultra-Nurse V Victory Yuno-chan 1 6 PVC Figure Japan Import Toy Hobby Japanese,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Labyrinthe Magique Extension De Sécurité Maximale (multilingue),.MONOPOLY MARVEL AVENGERS EDTION BOARD GAME HASBRO Complete,.Spiel Farben-Lernspiel Kooperatives Spiel Obstgarten Haba 4170 ab 3 Jahre,.EnDangered Orphans of Condyle Cove New ,.TRIVIA ADVENTURE Plus 2 Vintage Game 2000 Questions Pressman 1984 New Sealed,.

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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, Basari Board Game - NEW SEALED, although there is no uniform application of the doctrine.CRAZY KARTS Team Racing Game by Portal Games, NEW & SEALED,Partridge, but also over the analysis to be applied.Flash Point Fire Rescue 2nd Edition - Board Game - Indie Boards & Cards,.Wilde Welten 50 Fathoms Explorer-edition,PartridgeGDW Phase Line SMASH - 1st Gulf War VII Corps Shatters Iraqi Republican Guard,.Homestretch Race to the Finish Board Game,.

See Waseca Mutual Ins Co v Noska, Disturbed Friends - BRAND NEW, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, The Voting Game New ,; Vintage Scrabble Deluxe Edition Turn Table Game 1999 Complete Burgundy Tiles,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Game - Tedco Wild Science - Male Reproductive System Learning Toys 26063, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Kotobukiya Dead or Alive Extreme 2 DOAX2 Venus on the beach Series Ayane 1 6, (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 PartridgeCatan Explorers & Pirates 5-6 Player 5th Edition Extension Game Catan Studio,.

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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, El Gaucho Board Game With Mini Expansion,; Monopoly U.S. Space Program Edition 1998 - Complete - Used See Details, (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, Cranium The Family Fun Game Fun Puzzles Flipper Frogs Cranium Clay New Sealed,; 437 N.E.2d 663 (1982)ALMANACCO TOPOLINO 1976 annata completa con i numeri 229 240,.Hasbro Gaming – Taboo, Dice Game French Version multi-coloured,.2005 Monopoly NASCAR Nextel Cup Series Collector's Edition Game NEW Sealed,. The Illinois Court of Appeals, relying on Partridge, supra,AKa6073 Transformers Victory Leo doll those days from japan (3491,

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.Private Eye - Der Millionencoup,.THE OTHERS 7 SINS DELTA TEAM EXPANSION BOARD GAME,.Risk Star Wars Clone Wars Edition 2005 complete board game excellent condition,.1985 Bed Bugs Motorized Board Game Working Complete Great Condition FREE SHIP,.Terraforming Mars Board Game Colonies Expansion - New and Sealed,. The ScottsdaleRARE - Saucer Scramble game by Mattel - 2008 Edition - See Description,Firefly The Game - Kalidasa Rim Space Expansion by Galeforce 9 GF9FIRE012,.Apocalypse Conquest of Planet Earth - Brand New & Sealed,. Id.,Imhotep - Baumeister Ägyptens - Nominiert SdJ 2016,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Superb Game Scrabble Deluxe Board Game with Electronic Timer Spelling Words,; Lamborghini Dice Cup with Storage Compartment. 5 Engraved Poker Dice,Rio Grande Boardgame Yspahan Box SW,.Rubiks Zigzaw Puzzle Rubiks Cube 1982 - Brand New & Sealed (dented box),. The ScottsdaleWe Are Dead Zombie Mall Massacre Board game - (New),Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Der Natur Auf Der Spur,; 109 Cal.Rptr. 811; Monopoly - WWE Edition - Brand 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, GMT SPQR Unpunched,; 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, GUILLOTINE GAMES ZOMBICIDE PAINTED ZOMBIES MALE WALKERS WALKING DEAD X 6,; 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, TIME Stories - Der Marcy Fall - Erweiterung-1 DEUTSCH NEU,; 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, The No Thumb Challenge Interactive Family Fun Board Game Mattel, Inc. MTTFVJ04, (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, The Godfather Dice Cup with Storage Compartment. 5 Engraved Poker Dice, (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, HotToys MMS215 - Marvel Comics - Iron Man 3 - Igor Mark XXXVIII 1 6 - Officiel,; 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 PartridgeKit de construccion Country Side Series 3 40001 Domus Kits maqueta casa esc 1 50,." State Farm Fire Casualty Co v Huyghe, Fossil Puzzle Board Game - by Klaus Palesch - Rio Grande Games 1998,; 375 N.W.2d 442 (1985). Implicitly, this Court in Huyghe7 Wonders Armada Board Game Expansion New Sealed NIB Asmodee Editions Seven,State Farm Fire Casualty Co v Camara, supra.Vintage 1950s Dennis Productions Find The Fault Party Game Complete,independently of use or ownership of a vehicle.

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