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Vanguard Ins Co v. Clarke

181 Mich. App. 36 (Mich. Ct. App. 1989)
Games Workshop - Thousand Sons Rubric Marines - 99120102063 99120102063 99120102063 - 43-35 5c26ba
PLASTIC WARHAMMER CHAOS DAEMONS OF KHORNE SKULL CANNON PAINTED (L),
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 Warhammer 40k Sisters of Battle Squad - 1 Superior + 4 Troops - metal - Lot H,.Tyranid Genestealer Brood - Tyranids Warhammer 40k 40,000 Games Workshop New ,.Age Of Sigmar Tempest Of Souls,.SERAPHON Saurus oldblood on carnosaur Warhammer Sigmar Lizardmen Kroq gar,.

The essential facts are not in dispute.1985 Guardian Dragon Lords Grenadier Models 2524 Dungeons & Dragons AD&D Wyrm,.Warhammer Age of Sigmar Maggotkin of Nurgle Putrid Blightkings (5 Models),. At approximately midnight, Clarke drove home in his automobile.Games Workshop Citadel F1 Fighters Metal Figures Warhammer Blister OOP New 1980s,.Harlequins Codex Eldar (German) Games Workshop Warhammer 40.000 40K Hardcover,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer Age of sigmar, ogre army well painted and based.,.Warhammer 40,000 Tyranids Tervigon Ready to Base 613,.Army Slaanesh Chaos Daemon Warhammer Fantasy AoS Propainted and personalized, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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1987 DS6 Serpentine Dungeons & Dragons Games Workshop Citadel Warhammer AD&D GW,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Games Workshop Adeptus Titanicus Warlord Battle Titan PRO Painted to Order,.Warhammer Fantasy Dwarf AoS Order Ironweld Arsenal - Gyrocopter (NiB, oop metal),.Triumvirate of the Imperium Warhammer 40k Painted Commission Service SVC box set,Vampire Blood Knights 10 Lot Warhammer AoS Age of Sigmar Resin Plastic,.Warhammer 40,000 Age of Sigmar Chaos Daemons Nurgle Poxbringer painted,.

19x C12 great goblin C13 night citadel gw games workshop goblins pre-slotta,.Age of Sigmar, The Realmgate Wars Quest For Ghal Niamh, New,.Thousand Sons Warhammer 40k Lot,.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.Vintage 1980s Citadel Metal Miniatures Skeletons x 9,.Orks Megatrakk Scrapjet Games Workshop Brand New 99120103065,.Warhammer 40K, Chaplain with Skull Helmet, plasma pistol and power axe PRO PAINT,." Hazel Park v Potter, 169 Mich. App. 714, 718; First Strike A Warhammer 40,000 Starter Set New Warhammer 40K Box Sets,.Warhammer 40,000 Tyranids Winged Hive Tyrant 640,. Pontiac School Dist v Bloomfield Twp, Citadel Skulls - Terrain Warhammer 40k 40,000 Games Workshop New ,; Edge Entertainment Stellar Destroyer Class Gladiator, Expansion for Star Wars...,; 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. . . .

Warhammer 40,000 Tau Empire Broadside Battlesuit 386,.Games Workshop Ork Boyz x30 (painted),Warhammer Age Of Sigmar Stormcast Eternals Celestant Prime x1,. Pontiac School Dist, supra.Lotto Scenari Goblins, Stoks scenery 10 Pz. Warhammer, Age of Sigmar,.

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A motion for summary disposition under MCR 2.WARHAMMER, EMPIRE ARMY, MORTAR & CREW,.WARHAMMER 40.000 - SPACE MARINE HEAVY ASSAULT - Build + Paint - NEW,.Grand Master of the Knights Panther, sealed - Warhammer Fantasy Battles Empire,. Fulton v Pontiac General Hosp, LOTR Citadel metal OOP Khandish King on War Chariot Awkards,; EROI BRETONIANI BRETTONIAN GRAIL GRAAL KNIGHTS WARHAMMER FANTASY GAMES WORKSHOP,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warhammer Orcs and Goblins Squig Hoppers Well Painted,; 207 N.W.2d 316 (1973).

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Warhammer Space Marine Tactical Marines Well Painted,. 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.

Warhammer 40,000 Dark Imperium 40K CHAOS DAEMONS CODEX and or DATACARDS,

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.

SLAUGHTERPRIEST KHORNE SEÑOR DEL CAOS PRO PAINTED CHAOS WARHAMMER AOS,. First, the policy's exclusionary language is not ambiguous.WARHAMMER FANTASY AGE OF SIGMAR SKAVEN HELL PIT ABOMINATION PAINTED & BASED,.Warhammer Chaos Sorceror gamesday limited edition blister nib,. See Allstate Ins Co v Freeman, supra, pp 665-667.Metal Imperial Guard Lord Solar Macharius - OOP - Warhammer 40K X215,. We disagree with the trial court's second and third statements.Games Workshop Warhammer Hobgoblin Hero on Wolf Chaos Dwarves Hobgoblins New OOP,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Citadel GW Warhammer BC7 - Heroic Fighters of the Known World - Complete Box Set,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Warhammer Adeptus Mechanicus Ironstrider Ballistarius Sydonian Dragoon BNIB 436,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Vintage 1993 Parker Games LEGEND OF ZAKOR Fantasy Role Game Working,.SPACE MARINES PRIMARIS REPULSOR 48-78,.Warhammer Age of Sigmar Warriors of Chaos Marauders 198,.GW Warhammer AoS Chaos Archaon the Everchosen Bitz Incomplete,.Warhammer Age of Sigmar Lizardmen Seraphon Skinks 423,.

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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, Warhammer Games Workshop Citadel - Harboth's Orc Archers Regiment Of Renown OOP, although there is no uniform application of the doctrine.Death Korps of Krieg Mars Alpha Pattern Leman Russ Vanquisher painted Warhammer,Partridge, but also over the analysis to be applied.FW Cerastus Knight Lancer New Unassembled,.Warhammer Age of Sigmar Lizardmen Seraphon Skinks 654,PartridgeWarhammer Age of Sigmar Lizardmen Seraphon Saurus Oldblood On Carnosaur 7,.WARHAMMER 40K - Space Marine Centurion Devastator Squad - NEW NSF3,.

See Waseca Mutual Ins Co v Noska, Kill Team Killzone Wall of Martyrs Expansion Warhammer 40K NEW ENGLISH EDITION, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, 1985 Dwarf Villager 0309 22 D7 Prospector Citadel Warhammer Townsfolk Miner AD&D,; Games Workshop Warhammer 40K Dark Eldar Succubi Wych Succubus New Metal WH40K GW,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Warhammer 30,000 Space Marines Mark IV Flamer Special Weapons Squad 84, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Judgements of Khorne Infernal - age of sigmar COMMISSION painting, (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 PartridgeWARHAMMER 40k Templar Knights Imperial fists marines Army pro painted Huge Lot ,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, NURGLE PLAGUE MARINES - CHAOS SPACE MARINES DEATH GUARD - NEW IN SEALED BOX OOP,Roboute guilliman Made To Order Pro Painted,. In Noska,Kawasaki ZX7R Seat Driver's Bench Seat 1996 2003,.Games Workshop Epic 40K Lot,.Warhammer 40k Space Marines Dreadnought Painted,.Warhammer Coffret MAGIE supplément Version Française Neuf scellé Édition 1997, necessary to cause the damage. Id., p 920.WH Empire édition limitée PR21 - Valten héros exalté de Sigmar,.Games Workshop Warhammer Age of Sigmar Stormcast Eternals Vanguard-Hunters,.Warhammer Age of Sigmar Daemons Of Chaos Screamers of Tzeentch 636,.Warhammer Games Workshop 40k Space Orks JOB LOT,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Livre WARHAMMER JDR - CHÂTEAU DRACHENFELS - Descartes 1993 FR,⇨ 15 chaos warhounds warhammer age of sigmar magnetic bases,.Slaughterpriest Blades of Khorne Chaos Age of Sigmar Warhammer Painted,.Warhammer 40k - Blood Angels Chaplain - Painted,.Codex Orks Collector's Edition Warhammer Limited New Mint,.Warhammer 40k Necron, Necrons - Night Scythe,.Warhammer Vampire Counts AoS Death Deathrattle - 20 Mantic Skeleton Warriors,.Ork Warbiker Mob Warhammer 40K - New Shrink Wrapped,. The parties Kairos Fateweaver - Chaos Daemons - Chaos Space Marines - Age of Sigmar 40k OOP,.

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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, Metal Games Workshop Warhammer 40K Epic 076041 Gorgon Mk2 Mark 2 Tanks,; Warhammer 40k, Thousand Sons Tartaros Terminators - superbly painted, (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, Pre-Painted - Warhammer 40k Blood Angel Transport Standard Bearing Rhino,; 437 N.E.2d 663 (1982)EXCELSIOR WARPRIEST - WARHAMMER - GAMES WORKSHOP - DEVOTED OF SIGMAR,.Chaos Daemons 8 x Flesh hounds of Khorne well painted metal models OOP,.Warhammer Age of Sigmar Vampire Counts Crypt Ghouls 666,. The Illinois Court of Appeals, relying on Partridge, supra,Rogue Trader Space Marine Landspeeder Lot A 40K Metal Land Speeder Warhammer,

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.Warhammer Skaven Army Oldhammer Metal Unpainted Games Workshop,.OOP Citadel Warhammer 40k Metal Legion Of The Damned Space Marines Devastators,.Warhammer 40K Chaos Space Marines Havocs PREORDER 43-61,.Warhammer 40,000 Space Marines Blood Angels Sanguinary Guard Squad 777,.Warhammer 40K Astra Militarum Imperial Guard Valkyrie propainted,. The ScottsdaleGames Workshop Warhammer 40,000 Space Marine Stalker,Warhammer 40,000 Chaos Space Marines Heldrake 877,.Warhammer The Empire Grand Master of Knights Panther Metal Figure Fantasy GW OOP,. Id.,Imperial Fists Contemptor Patern Dreadnoght Painted - Warhammer 40,000,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Games Workshop Warhammer Chaos Dwarf Dwarves Astragoth High Priest of Hashut OOP,; Games Workshop Warhammer 40K Honoured Imperium BNIB New Sealed Scenery Statue GW,Warhammer 40k Army Adeptus Mechanicus Kastelan Robots Painted And Based,.Grey Knights Space Marines metal boxed set Warhammer 40k,. The ScottsdaleWARHAMMER - RARE GOBLIN WOLF RIDERS - OLD METAL OOP,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer 40,000 Astra Militarum Imperial Guard Leman Russ 3,; 109 Cal.Rptr. 811; Games Workshop Warhammer 40k 2nd Edition 1993 Starter Box Spares - French,. 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, Necron Ghost Ark - Games Workshop, Warhammer 40,000,; 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, Warhammer 40k 40'000, 2nd Edition Set Of 7 Books 1993 (Rulebook, Codex etc.) GW,; 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, WARHAMMER AGE OF SIGMAR STORMCAST ETERNALS EVOCATORS ON CELESTIAL DRACOLINES NEW,; 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, Easy to Build Reikenor the Grimhailer, (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, Warhammer 40,000 Forgeworld Necron Tesseract Ark Pro Painted, (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, Games Workshop Warhammer 40k Blood Angels Furioso Dreadnought Unpainted RRP,; 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 PartridgeGames Workshop Warhammer Fantasy Bertrand the Brigand Bretonnian Metal Sigmar,." State Farm Fire Casualty Co v Huyghe, Bretonnian Archers - WELL PAINTED - w Command - GW Oop Warhammer,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheWarhammer Age Of Sigmar Start Collecting Flesh-Eater Courts 70-95,State Farm Fire Casualty Co v Camara, supra.Warhammer 40k, Haarken Worldclaimer, Herald of the Apocalypse - Commission,independently of use or ownership of a vehicle.

In Huyghe,Metal Dark Eldar Warrior with Lance Blister - OOP - Warhammer 40K C440,FORGE WORLD BOMBARD TANK - New Imperial Guard Astra Militarum Warhammer Army 40K,.SPACE MARINE DEVASTATOR SQUAD Warhammer 40k 5 miniature Citadel Adeptus Astartes,.Necrons Dominion Spearhead Battleforce Boxed Set Warhammer 40k 40,000 Models New,. The HuygheGames Workshop Space Hulk 2014 Genestealers x22 BNOS New Purestrain Cult Army GW,. 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 HuygheSine Requie - SANCTUM IMPERIUM 2 Ediz. - (2030) - Serpentarium - ITA NSF3,.

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For example, in Partridge,Games Workshop Warhammer Chaos Flying Disc Rider of Tzeentch Sorcerer Citadel B2,. In Jorgensen, supra,Craftworlds Wraithknight Eldar Warhammer 40k NEW,. Therefore, the non-auto-related negligence had been established.Citadel Stormcast Eternals Evocators On Celestial Dracolines Warhammer Age of Si,. The Illinois court in U S Fidelity Guarantee, supra,Pro painted Warhammer 40k Dark Angels Veteran squad miniatures,. That is the same situation in this case.DARK ELDAR 3 Reavers Jetbikers Warhammer 40K jetbikes well painted Drukhari,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Warhammer 40k Pro painted death guard blightlord terminators made to order,. Detroit Edison, supra.

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