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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 FUNKO POP VINYL AQUAMAN JASON MOMOA FUDO MYO-O CONVENTION EXCLUSIVE VARIANT Lot,.MINT SEALED DC UNIVERSE CLASSICS REVERSE FLASH WAVE 20 FIGURE 7 ADULT RARE 1110,.BATMAN NINJA HARLEY QUINN NENDgoldID AF SENGOKU VER,.Marvel Minimates Marvel Now Series 1 Counter Dump Sealed Case of 18 with Silk,.

The essential facts are not in dispute.Batman & Robin ‘66 Classic TV Series Holy High-Rise Wall Climb Figures Mattel DC,.DC Batman Arkham Knight Statue Red Hood 27 cm,. At approximately midnight, Clarke drove home in his automobile.PEZ STAR WARS WALMART EXCLUSIVE ACTION FIGURES SW4,.HASBRO Marvel Legends PredECTOR MIP w HIT MONKEY HEAD BAF part warriors mind,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Marvel Legends Onslaught Series LOKI New (Avengers Thor Spider-Man),.HARLEY QUINN MASQUERADE RARE DC Super Hero Girls Deluxe Doll - Action Figure,.McFarlane Toys Spawn the Marauder Series 31 Other Worlds 7 Action Figure, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Power Rangers Green Ranger Dragon Dagger Dragonzord Sword Morpher Cosplay 2009,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Aquaman DC Multiverse 6-inch Mera (Trench Warrior BAF) NEW MIB COMICS MOVIE,.Vintage Kenner SUPER POWERS LOT Firestorm The Flash Martian Manhunter,.Batman classic tv series Retro robin figure set,Transformers Alternity Bumblebee Suzuki Swift Action Figure NEW,.Elongated Man DC Universe Signature Collection Mattycollector Exclusive,.

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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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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.HASBRO MARVEL LEGENDS SPIDER-MAN 6 KINGPIN BAF WAVE 9 COMPLETE SET SPIDER MAN,.Batman vs Superman Dawn of Justice Action Figure MAFEX Series - Wonder Woman,.Marvel Spider-Man Titan Hero Series Villains Carnage & Venom Movie 12 Action,. Fulton v Pontiac General Hosp, Loose Mattel Master of the Universe Classics Standor Stan Lee Loose 6 Figure,; SUPERMAN 10 Resin Action Figure Officially Licensed silverina Release Rare,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Pre marvel legends 1996 X men Classics nightcrawler figure light up sword BNIB,; 207 N.W.2d 316 (1973).

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THE DEFENDERS SERIES LUKE CAGE ARTFX+ STATUE 19 CM FIGURE KOTOBUKIYA,. 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.DC Direct Alex Ross Aquaman Figure Kingdom Come,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, MARVEL - marvel Galerie - Hulk Pvc Figure Diamond,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.RARE BATMAN HUSH Action Figure DC DIRECT Comic Book Toy 6 Inch JIM LEE Series 1,.1985 Airgam Comics Super Fantastics BIRD MAN Airgamboys action figure (Batman),.Eric Powell’s The Goon zombie priest PVC figure,.DC Direct Dr Manhattan 12 Boxed Figure,.SDCC 2009 + SDCC 2010 Exclusive Hasbro Marvel Universe Single Figure Lot 3 Total,.

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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, One 12 Collective Marvel DAREDEVIL YELLOW 6 Figure Mezco 1 12 PX Exclusive, although there is no uniform application of the doctrine.MARVEL LEGENDS Ghost Ride MIP NEW Marvel's Rhino BAF piece left leg Heroes Hire,Partridge, but also over the analysis to be applied.Tintin - Editions Atlas - N° 21 Le taxi Simca Aronde L'affaire Tournesol neuf en,.Thing Ben Grimm Fantastic Four Ronan Series Marvel Legends Hasbro 7 Figure MIP,PartridgeBatman Collectible Statue Paperweight Icon Heroes Gamestop Exclusive,.Collectible Batman Action Figure-DC Comics-31 Tall Cloth Cape Jakks Pacific EUC,.

See Waseca Mutual Ins Co v Noska, Marvel Legends Thanos BAF Infinite Series Thanos 7 inch action figure, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Superman Fully Posable 7 Action Figure 21 Pnts Art W Stand 2000s DC Direct New,; DC SUPERHERO BEST OF SPECIAL MEGA JOKER (EAGLEMOSS),; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, VINTAGE TOY BIZ MARVEL LEGENDS ABOMINATION BAF ONSLAUGHT NEW MOC, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, DC COMICS MATTEL JUSTICE LEAGUE 12 INCH FIGURES X 5 BATMAN, SUPERMAN & MORE, (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 PartridgeScooby Doo 8 Inch Retro Style Action Figures Series 1 Set of all 4,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Marvel Iron Man Slide Blast Armor,DC COLLECTIBLES DC COMICS BOMBSHELLS ESTATUA LOIS LANE 29CM,. In Noska,Mega Man Zero Zero S.H.Figurarts Action Figure Tamashii Nations,.HASBRO MARVEL UNIVERSE 3 3 4 ACTION FIGURE COLLECTION LOT VULTURE, MS. MARVEL,.SPAWN Series 5 Complete Set of 6 Ultra Action Figures MOC 1996 McFarlane,.Mister Sinister 1993 X-Men Series 1 Toy Biz AFA 85 Repaint variant MOC Free S H , necessary to cause the damage. Id., p 920.IRONHEART IRON MAN MARVEL GALLERY DIAMOND SELECT FIGURE MARVEL,.Spawn purpletor Comic Ultra Action Figures Special Limited Edition Mcfarlane,.AMANDA CONNER JIMMY PALMIOTTI CHAD HARDIN SIGNED JADA DIE CAST JOKER HARLEY SDCC,.2014 MATTEL DC TOYS TOTAL HEROES ULTRA CYBORG 6 ACTION FIGURE MIP VICTOR STONE,. 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, Ninja Turtles The Next Mutation Elite Guard With Weapons From Playmates 1997 t90,; MATTEL DCUC DC UNIVERSE SER 13 TEEN TITANS SUPERBOY ACTION FIGURE , (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, Marvel Universe X-Factor figure box set TRU exclusive MIP,; 437 N.E.2d 663 (1982) ATTAKUS VATINE C741 Angela - 999 ex. ☰,.DC Comics Designer Serie 9 Actionfigur Superhero Harley Quinn by Conner,.Marvel Amazing Spider-Man Film Rettile Blast Lizard,. The Illinois Court of Appeals, relying on Partridge, supra,Ironman Die Cast Metals 6 Inch Light Up 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.DC Comics Multiverse Suicide Squad. Lot of 8.Boomerang Joker Harley Deadshot...,.DC COMICS Fisher Price IMAGINEXT BATMAN GOTHAM JAIL w figure & Car set,.1995 Kenner Batman Forever Guardians Of Gotham City Batman & Robin Figures NIP,.Berserk Action-Figur Boxed ZODD Zoddo Menschliche Form,.Marvel Spider-Man • Busto Numerato 1709 3000 • Bust • men ragno,. The ScottsdaleDC Comics Superman Line Drawing blueeline Edition PVC Action Figure Model Toy,Randy Bowen COLOSSUS Chrome Mini Statue X-Men Marvel,.Super Powers Collection Robin Figure Kenner 1986,. Id.,DC UNIVERSE BATMAN UNLIMITED SERIES WAVE 1 FIGURE SET BATGIRL PENGUIN NEW 52,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Official DC Comics Bus Batlab Playset With Exclusive Penguin Figure by FTC,; Action figure Terminator Genisys T-800 Guardian 7-Inch 18 cm Neca,ERIC SO SIN CITY MARV VINYL FIGURE,.DC Comics BATMAN JOKER & HARLEY QUINN 6 toy boxed figure set, Justice,. The ScottsdaleMarvel's Legends Series X-Men DEADPOOL 6-Inch Action Figure by Hasbro,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, DC Super Powers Batmobile Vehicle Kenner Toys 1984 with Batman & Joker Figures,; 109 Cal.Rptr. 811; The Avengers C1880EU40 Marvel Legends Series Hulk Figure,. 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, Funko POP Marvel Beast Bobble Figure,; 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, Batmobile Kenner The Dark Knight 1990 Unplayed With Retractable Guns.,; 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 Legends Series IV. 4 BEAST (X-Men Avengers) Rare 6 Figure,; 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, 3 Dark Alliance figures Lady Death alive, Lady Death and Vandalla, (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, MARVEL LEGENDS Bullseye Galactus Series Toybiz 2005 Mint In Box, (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, 2010 SDCC Exclusive DC Comics 75 Years STARRO Brave & Bold Justice League,; 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 PartridgeARTFX+ DC Comics POISON IVY 1 10 PVC Figure KOTOBUKIYA NEW from Japan,." State Farm Fire Casualty Co v Huyghe, 1974 Mego Batman And Spider-Man Action Figures Dolls,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheThor Marvel Titan Hero Series 12 action figure Avengers Infinity War Hasbro,State Farm Fire Casualty Co v Camara, supra.Vintage 1973 Ben Cooper Rubber Dangling Superman 7 Action Figure,independently of use or ownership of a vehicle.

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