Mil 1049 - Homoludicus Games - Board Board Board Game New NIB 37d049

Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
Mil 1049 - Homoludicus Games - Board Board Board Game New   NIB  37d049
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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 1914 Glory's End When Eagles Fight, NEW,.Roll for the Galaxy with Ambition Expansion - Great Condition - With Promo,.King of Tokyo FIRST EDITION Board Game by Richard Garfield Iello - New In Box,.The Gamers Wargame 1996 Repls & Variants Zip NM,.

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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.Cranium Adults Wow Board Game, Best Cranium Game Ever Pre-owned ,.Rare board game vintage DIVERSION Spear's Games 1957,.WARRRIOR KNIGHTS BOARD GAME OUT OF PRINT,." Hazel Park v Potter, 169 Mich. App. 714, 718; VINTAGE OCEAN TRADER BOARD GAME BY CLIPPER GAMES - RARE AND COMPLETE,.Shove ha penny board with 5 old happenies .,. Pontiac School Dist v Bloomfield Twp, Clash of Arms Games La Basize de Lutzen Unpunched,; Critical Hit - -TOB games Kharkov - Battle for the Square March 1943,; 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.Schmidt Mauseschlau & Bärenstark auf Weltreise - NEU NEW - Eingeschwhitet,.Neo Toys Game Pinball Goals, 58788,.Piatnik 2799 Number 17-32 Bridge Board Game,. Fulton v Pontiac General Hosp, Funskool Guess Who Board Game,; World War II - 410 piece Messerschmitt BF 110C-COB5538,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Vintage Everlast Bingo Board Game by Cardinal Industries,; 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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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.Die Siedler von Catan Basisspiel Grundspiel Holz Holzversion Kosmos Spiel,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Ravensburger Game El Dorado Board Game Strategy Game from 10,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Portal Games Boardgame First Martians Box SW,.Monopoly Assassin's Creed Board Game +Book Assassin's Creed Renaissance New,.HABA® 4630 Wettlaufspiel Das wollige Leiterspiel NEU OVP,.Monopoly - Game of Thrones Collector's Edition,.EasyGo Giant 3 Feet X 4 Feet Mat Chess Game – Indoor Outdoor Family Game – L,.

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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, Ravensburger Gravitrax - Starter Set - 27597, although there is no uniform application of the doctrine.CONGKAK MULTI-COLOR Counting Game Foldable Edition Traveller Set [SPM GAMES],Partridge, but also over the analysis to be applied.Bulk D8 Dice Assorted Loose Gemini Polyhedral (50 Dice In Bag) - BRAND NEW,.Cadaco All-Star Baseball football ultimate college basketball board game lot,PartridgeATS TT Battle of the Bulge 1 - Advanced Tobruk System,.Monopoly Skyrim Brettspiel Gesellschaftsspiel + Schlüsselanhänger Keychain NEU,.

See Waseca Mutual Ins Co v Noska, UVA OPOLY, (Monopoly), Board Game, 1st Edition, Brand New, SW, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Runebound (Third Edition) Adventure Board Game by Fantasy Flight Games FFGRB01,; Game of Thrones EXPANSION a Clash of Kings Board Game - NEW SEALED,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Fallout The Board Game - New in Sealed Box, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Assassins Creed Winning Moves Monopoly Board Game KIDS FAMILY FUN GAME NEW, (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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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, Show Manager Board Game - NEW SEALED,; The F.A. Premier League edition 2000 2001 Monopoly factory sealed, (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, CMON The Godfather Corleone's Empire Board Game,; 437 N.E.2d 663 (1982)Piatnik 6849 Cartagena Board Game,.Arkham Horror 3rd Edition Core Set Board Game Factory Sealed Brand New FFG 2018,.Quadropolis - Days of Wonder - New Board Game,. The Illinois Court of Appeals, relying on Partridge, supra,Magic The Gathering Heroes of Dominaria Board Game Wizkids Brand New WZK73310,

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.]

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The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, RED RAVEN GAMES ABOVE AND BELOW CARD GAME,; Monopoly Pirates of the Caribbean New Parker Bredhers Trilogy Edition 2006 NIB,Nyctophobia NUOVO ITALIANO Asmodee Gioco Da Tavolo Spedizione 24h ,.Bloodborne The Card Game - Asmodee (Genuine Sealed),. The Scottsdalebluee orange Photosynthesis Family Game,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Hasbro Game Trying or Lose Partyspiel Family Game,; 109 Cal.Rptr. 811; Mini Epics Planet Of The Apes - Dr Zaius - Weta Workshop Free Shipping ,. 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, Shengshou Master Kilominx Magic Cube,; 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, WINGS excellent classic wargame from Excallibur publisher RARE ,; 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, Asmodee Editions Abalone Board Game,; 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, Rare Only Fools And Horses Monopoly Board Game, (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, SPI Game - The Moscow Campaign Strike and Counterstrike Russia, 1941, (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, The Gamers - No Better Place to Die - Battle of Murfreesbgold, 1862-1863 (60%UNP),; 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 PartridgeThinkFun Solitaire Chess Game,Logic Games,." State Farm Fire Casualty Co v Huyghe, Monopoly Neuss City Edition Stadtedition Game Party Game,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheHeroQuest Kellar's Keep - 100% Complete Expansion,State Farm Fire Casualty Co v Camara, supra.Monopoly for Millennials Millenials Millenial Edition Board Game SOLD OUT SCARCE,independently of use or ownership of a vehicle.

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