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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 DC COMICS Universe superman figure Justice League World greatest,.Korean Webtoon Line Webtoon Naver Noblesse Ecobag 1ea Rai New,.Dc Collectible ESSENTIALS Series 2 Full set of 4 6.75 inch action figures NEW,.Iron Studios 1 10 Thor Ragnarok BDS - Valkyrie_ Statue _Marvel Now IN001X,.

The essential facts are not in dispute.DC Comics Designer Serie 8 Actionfigur Joker by Capullo,.Superhuman Samurai Syber-Squad - 9 Deluxe Neutron Armor Servo (MISB),. At approximately midnight, Clarke drove home in his automobile.Marvel Super Hero Squad VERY RARE SEALED Wave 5 ROGUE & GAMBIT X-Men,.BRAND NEW ICON Diamond Select Toys Batman Arkham Knight Batmobile Statue Bookend,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Super Hero Mashers Spider-man Skycrawler new hasbro marvel free shipping,.Vintage collezione Pixi-Bécassine e il suo ritratto -box & certificato ok,.WWE TNA Wrestling Entrance Greats Bobby Roode 6 Inch Action Figure NIB, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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DC ARTISTS ALLEY HARLEY SHO MURASE HOLIDAY PVC FIGURE NEW BOXED,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.2018 SUPER 7 MASTERS OF THE UNIVERSE MOTU SHE-RA & HORDAK 5 FIGURES MIP HE-MAN,.Teenage Mutant Ninja Turtles (1990) - Michelangelo Action Figure - NECA Free Shi,.DC ARTISTS ALLEY HARLEY QUINN NOOLIGAN VINYL FIGURE (DC COLLECTIBLES),FUNKO DC POP VINYL THE JOKER SIGNED BY BRIAN BOLLAND WITH COA,.Marvel gold iron fist marvel girl,.

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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.DC Comics Justice League Action Figures bundle lot Mattel 2017,.NEW MARVEL AVENGERS EASTER TOY GIFT BASKET TOYS PLAYSET NIGHT VISION BIRTHDAY,.DC Comics Super Villains The Joker Bust - UK Seller,." Hazel Park v Potter, 169 Mich. App. 714, 718; Marvel Select 7 Inch Action Figure Ant-Man - Unmasked Ant-Man Exclusive,.DC Direct Green Lantern Series 5 Soranik Natu Action Figure,. Pontiac School Dist v Bloomfield Twp, NECA Spider-Man Homecoming – 1 4 Scale Action Figure Free Shipping,; 2012 Marvel Universe Hasbro X-Men Collector's Set of 6 Toys R Us Exclusive MIB,; 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.Lot of 3 DC Comics Action Figures CyborgCommissioner GordonEarth-23 Superman,.42cm Avengers Iron Man Hulkbuster Ragnarok Figure Doll PVC Toy Anime Hulk green,.Justice League Wonder Woman Shield One Size,. Fulton v Pontiac General Hosp, Hasbro- Marvel Spider-Man Homecoming - Super Sense Spider-Man Action Figure,; Marvel Legends A-Force Box Set Loki 6 inch action figure SDCC 2017 exclusive,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Marvel Legends Avengers Marvel's Songbird Built A Figure Thanos,; 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.McFarlane Toys Spawn Series 31 Other Worlds Lord Covenant Action Figure MIB New,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, A Bathing Ape BAPE x DC COMIC FIGURE BATMAN SUPERMAN JUSTICE LEAGUE New Sealed,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.MEGOORIGINAL Mego MINTY Type 1 SHAZAM 100% Complete WGSH 8 Action Figure,.HASBRO Electronic BATMAN BEYOND After Burner Batman Large 12 inch Figure in Box,.COLOSSUS, LONGSHOT, MR. SINISTER, CANNONBALL - Rhino - TOYBIZ - Marvel - NEW,.Spider-Man Marvel Ultimate Titan Hero Series 2099 Figure - 12 Inch,.Spider-Man Red Version Marvel Secret Wars Jumbo Action Figure,.

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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, Batman v Superman Dawn of Justice Multiverse Superman Action Figure, although there is no uniform application of the doctrine.SPAWN; SPAWN ALLEY ACTION PLAY SET - TODD TOYS - 1994 - MISB Spawn Figures,Partridge, but also over the analysis to be applied.Herowerx Diorama Action Figure DC Batman Marvel Legend Select Street Scene,.DC Comics Retro Style Boxed 8 Inch Action Figures Rhas Ah Ghul,PartridgeDC Collectibles DC Designer Series The Flash by Greg Capullo Action Figure,.BATMAN THE ANIMATED SERIES NINJA ROBIN + Catwoman + MR Freeze SPESE GRATIS,.

See Waseca Mutual Ins Co v Noska, Hot Wheels 1995 Treasure Hunt Series OLDS 442 of 12 Car 13349, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Marvel Legends DEADPOOL 12 Action Figure - SIGNED BY ROB LIEFELD,; PRISON SOFTBALL JOKER 1966 Batman TV Series 8 Retro Mego Action Figures Toy Co.,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Marvel Select Actionfigur Gladiator Thor (Thor Ragnarok Filmversion), (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Batman arkham city catwoman no2 figure, (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, Kotobukiya DC Comics Wonder Girl Bishoujo Statue,Superman DC Comics Rare Collectable Coins In Display Tin,. In Noska,Batman Batmobile Legends of Batman Factory Sealed Kenner Dark Knight 1994 MISB,.Dark Horse Deluxe Marvel Classic Character X-Men 94 Nightcrawler Statue,.Loose DC Direct Unmasked Secret Files Clark Kent Superman 2005,.HARLEY QUINN STATUE NEW 52 VERSION BISHOUJO COLLECTION DC KOTOBUKIYA 2016 B, necessary to cause the damage. Id., p 920.DC Universe Classics ARES action figure Series 4 (2008),.Marvel Universe Dr. Doom Bullseye Red skull - never played with only Displayed,.[Toys Hero] IN Hand MARVEL LEGENDS SDCC 10th Red Skull & Electronic Tesseract,.Crazy Toys Marvel Comics Avengers Thor 1 6th Scale Collectible Action Figure Toy,. Id., p 923.

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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, JUSTICE LEAGUE MOVIE Batman ArtFX+ Statue PVC GENUINE ARTICLE,; 2003 Toy Biz The Hulk 17 Plush Roaring Incredible Hulk Spiderman Friends, (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, Captain Marvel Legends WARBIRD misb GIANT MAN Avengers Toy Biz Carol Danvers,; 437 N.E.2d 663 (1982)DC Collectables Trinity War 7 Figure Set RARE,.DC Comics World Greatest Heroes Teen Titans Series 1 Speedy 6.5 Action Figure,.Franquin-Pixi- les monstres de Franquin-L oeil a pieds lourds-500 exempl.,. The Illinois Court of Appeals, relying on Partridge, supra,OVERWATCH SOMBRA NENDgoldID CLASSIC SKIN VER,

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.Marvel Comics Gallery Goblin Queen Statue Pre Order,.ART FX KOTOBUKIYA AVENGERS MARVEL NOW CAPTAIN AMERICA ARTFX PVC STATUE NEW,.Batman Action Figures Dark Knight Returns Boxed Toy Set Kids Toys new sealed,.Tenkai Knights Plamax TK-02 Dromus Titan Mode Model Kit,.10 BATMAN BEYOND ANIMATED FIGURE LOT JOKERZ NEO CAMO FUTURE KNIGHT BLIGHT SET,. The ScottsdaleMarvel Guardians of the Galaxy Legends Gamora And Star Lord BAF ,TruForce Collectibles Designer Series X Megaman X Action Figure NEW,.DC DIRECT NEW TEEN TITANS 7 PIECE PVC ACTION FIGURE SET. NEW IN BOX ,. Id.,MEGO Horror series Full set of 6 8 Figures Officially licensed SHIPPING SOON ,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, CAPTAIN AMERICA - Civil War - Capitan ArtFX+ 1 10 Pvc Figurine Kotobukiya,; 12 inches Figure DC Comics Multiverse Suicide Squad Harley Quinn Collectible,Spider-Man Homecoming figurine Spiderman 45 cm Neca,.Marvel’s SOLO Marvel Legends Deadpool Rainbow Squad 3.75 Figure Mint,. The ScottsdaleDC UNIVERSE - FIGURA THE JOKER 1 12 THE JOKER FIGURE 16cm,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, BATMAN BEGINS HOTWHEELS BATMOBILES BATCYCLE x3 UNOPENED CARDED 2005,; 109 Cal.Rptr. 811; Marvel X-Men Classics, Battle Blaster Bomber, Toy Biz 2000, Sealed in Box,. 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, Mcfarlane Spawn Action Figure the Desiccator 25cm Special Boxed Edition Ovp,; 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, DC Bombshells figurine Poison Wonder Woman 17 cm,; 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, Marvel Madame Alexander Fan Girl Iron Man NIP,; 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, Mezco Toyz One 12 Collective DC Comics Darkseid 1 12 Scale Action Figure In Hand, (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, Ghost Rider orange Variant Marvel Legends Terrax BAF Wave Loose 6 Knights, (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, Bloodshot X-O Manowar Ninjak Shadowman Minimates Valiant Comics,; 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 PartridgeHot Avengers Incredible Hulk 42CM,." State Farm Fire Casualty Co v Huyghe, Hot-Water Bottle Cover Set Bear For Cold Winter Night Good Sleep Comfortable,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheGreen Lantern Classics Star Saphire Collectible Figure dc comics ,State Farm Fire Casualty Co v Camara, supra.KOTOBUKIYA DC COMICS HARLEY QUINN NEW 52 VERSION BISHOUJO PVC STATUE NEW,independently of use or ownership of a vehicle.

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