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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 Modular Plague Drones of Nurgle - Pro Painted WH40k Chaos death guard,.Games Workshop Warhammer River Trolls Fellwater Troggoths Fantasy Sigmar Metal L,.RELIC KNIGHTS PRINCESS MALYA NEW,.Warhammer 40k - Age of Sigmar Stormcast Eternals Vanguard-Hunters.,.

The essential facts are not in dispute.Warhammer Age of Sigmar Stormcast Eternals Liberators 37,.Pro painted Warhammer 40k Blood Angels Death Company squad miniatures,. At approximately midnight, Clarke drove home in his automobile.Warhammer Fantasy Age of Sigmar Ogre OOP Undead Vampire Counts Nagash Army,.Warhammer 40K Kill Team Theta-7 Acquisitus 102-46-60,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer 40k Imperial Guard Vostroyan First Born Squad metal,.WELL PAINTED ORK GORKAMORKA BOYZ CHARACTERS SQUAD X 5 UNIT WARHAMMER 40K 266,.CHAOS SPACE MARINES 9 Chaos terminators Warhammer 40K terminator squad, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Warhammer 40k 40,000 Imperial Space Marine 2016 30th Anniversary New ,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.Warhammer 40k Chaos Space Marines Daemonkin Shadowspear New,.Games Workshop Warhammer 40k Chaos Renegades Space Marines Rogue Trader Nurgle B,.Citadel Marauder MM41 -1 Ogre Kingdoms Mercenary Bulls Ogor OOP Metal G121,Warhammer 40k Sister of Battle Battle Sisters Metal Sealed Blister New 52-39,.Warhammer Age of Sigmar Archaon Everchosen 83-50,.

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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.Warhammer Battle AoS Unit Filler Full Painted.,.Warhammer Age of Sigmar Vampire Counts Grave Guard Metal New Sealed NIB OOP,.GW Warhammer AoS Bloodbound Chaos Warriors Unit Plastic Base Coated,." Hazel Park v Potter, 169 Mich. App. 714, 718; Games Workshop Warhammer 40k Imperial Guard sizern Rough Riders Rider Desert A1,.Warhammer 40,000 Space Marines Metal Dark Angels Robed Veterans,. Pontiac School Dist v Bloomfield Twp, Warhammer AoS Ogre Kingdoms Destruction Gutbusters Ogor Scraplauncher Metal B3,; Warhammer 40K Scenery Terrain Wall of Martyrs Vengeance Weapon Battery New NIB,; 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.Warhammer Orcs and Goblins Night Goblin - Snotling Pump Wagon - Metal Painted,.Warhammer Fantasy Legends DARK ELF DREADLORD BLISTER BNIB,.Tau Army Pro Painted warhammer wh40k Tau Empire,. Fulton v Pontiac General Hosp, Warhammer 40,000 Space Marines Blood Angels Hulk Terminators 627,; Fantasy Football - 34 mm KHEMRI ROLLABLE GAMING MAT for Blood Bowl - Large Size,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, L204 15 Saurus Knights - Seraphon - Warhammer,; 207 N.W.2d 316 (1973).

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Games Workshop Warhammer 40000 Conquest Artbook Art Book WH40K New Sealed GW,. 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.

Dôme avec observatoire scenery building Warhammer 40k 40 000 Infinity Warlord,. First, the policy's exclusionary language is not ambiguous.Warhammer Dark Elf Harpies army lot painted 5 metal oop furies,.Warhammer Age of Sigmar Daemons Of Chaos Metal Prince of Damnation Azazel 62,. See Allstate Ins Co v Freeman, supra, pp 665-667.Warhammer 40k Blood Angels Tactical Marines Well Painted Games Workshop WH40K C3,. We disagree with the trial court's second and third statements.Age of Sigmar Objectives Marker Terrain Games Workshop Warhammer Aos,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Warhammer 40K Sector Mechanicus Sacristan Forgeshrine 64-74,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Chaos Khorngors - Bestigors - Beasts of Chaos - Beastmen - Age of Sigmar - OOP,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.Equipo elfos oscuros Blood Bowl Warhammer star player Redvenom Citadel 3ªedición,.DCO101 10x ELDAR GUARDIANS WARHAMMER 40000 (1994 ON SPRUE) OOP,.CHAOS DAEMONS 5 X FLESH HOUNDS, MULTI PART KIT, NEW ON SPRUE,.Warhammer Gigante de metal conversionado Nurgle,.48X GUERREROS DEL CLAN SKAVENS WARHAMMER AOS,.

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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, 1997 Chaos Beastman Beast Lord Command Citadel Warhammer Beastmen Beast Broo GW, although there is no uniform application of the doctrine.Games Workshop Warhammer Citadel OH4 Ronin Renegades Oriental Heroes Samurai B72,Partridge, but also over the analysis to be applied.Warhammer Age of Sigmar Stormcast Eternals Sequitors Ready to Base 414,.Warhammer 40,000 Daemonhunters Grey Knight Strike Squad 736,PartridgeWarhammer Space Marines Scout Squad Well Painted - JYS83,.Maggotkin Of Nurgle Horticulous Slimux - Warhammer Age Of Sigmar,.

See Waseca Mutual Ins Co v Noska, Gloomspite Gitz Mangler Squigs Age of Sigmar 20% off UK rrp, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, 10X ORCOS blackS DE METAL ORCOS Y GOBLINS WARHAMMER AOS,; Warhammer 40k Space Marine Ultramarines Chaplain Cassius Unreleased Metal Primed,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, VINTAGE MATTEL CAPTAIN POWER SERGEANT SCOUT BAKER MOC MINT FIGURE ON NMOC, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer 40k Terminator Assault Squad Salamanders - Forge World, (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 40,000 Tau Empire Metal Stealth Battlesuits 845,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Ant-Man And Ant-Thony Pop Vinyl Rides With Figure Marvel Home Decoration,Warhammer 40K Eldar Aeldari Craftworlds Wraithguards New in Box 5 Models,. In Noska,Tervigon of Tyranids soldier painted action figure miniature Warhammer 40K,.11 Star Wars POTF2 Deluxe,Gunner Station,Elect Power FX,Princess Leia Collection,.Warhammer 40,000 Craftworlds Eldar Windriders Jetbikes 768,.Warhammer 40k Eldar Aeldari Yvraine Emissary of Ynnead, necessary to cause the damage. Id., p 920.Warhammer Age of Sigmar Dwarf Dwarves Grundstok Gunhauler 341,.WARHAMMER 40K CHAOS SPACE MARINES GREATER DAEMON BLOODTHIRSTER PAINTED & BASED,.Warhammer Dwarfs Lord hero Champion thane Rune Priest painted OOP metal,.Warhammer 40K - Astra Militarum - Aegis Defence + Wall of Martyrs - Exc Con,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Warhammer 40,000 Space Marines Land Raider Redeemer 33,Warhammer 40,000 Dark Eldar Drukhari Archon 54,.GW Citadel Warhammer Undead Vampire Counts Zacharias the Everliving BNIB Metal,.Warhammer Age of Sigmar Warriors Chaos Korghos Khul Khorne Lord with Hound 552,.Resin massive circle standing stones Empire Mordheim Frostgrave Sigmar LotR L468,.Warhammer 40K 40,000 -- Space marine -- Primaris Hellbalsters -- GW-48-76,.Warhammer 40k Eldar Aeldari Craftworlds Harlequins x 7 Metal Unpainted,.TAU EMPIRE Kroot carnivore squad Warhammer 40K NIB NEW carnivores,. The parties Warhammer 40k Pro Painted Ork Killa Kan,.

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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, SPACE MARINES 5 Terminator squad close combat PRO PAINTED Red Scorpions Army,; Warhammer 40k Space Marines Forge World Tactical Marines x10, (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, Warhammer Age of Sigmar Lizardmen Seraphon Metal Kroq Gar on Carnosaur 150,; 437 N.E.2d 663 (1982)5 Pro Painted Stormcast Eternals Paladin Decimators Warhammer Age Sigmar Citadel,.WARHAMMER FB ORC SHAMAN ON BOAR OOP,.Games Workshop Warhammer Chester Store Opening LE Dwarf Santa 1985 Metal OOP,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer 40K Adeptus Mechanicus Skitarii - New in box,

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.Evil Craft Chaos Lord chaos marines warhammer 40k,.Games Workshop Birthday Nighthaunt Darrakar Guardian of Souls BNIB,.Warhammer Age of Sigmar Daemons of Chaos Kairos Fateweaver Lord of Change 30,.Warhammer 40k Quake Cannon Craters terrain,.Warhammer 40K Space Marines Command Squad Bnib Metal 1998 OOP Sealed,. The ScottsdaleHITECH MINIATURES - MAC003 Land Copter Eclipse Mkl A Warhammer 40k 40000,LIMITED EDITION SPACE MARINES CODEX ULTRAMARINES 6TH EDITION MINT CONDITION,.Warhammer 40K Astra Militarum Auxilla Bullgryns plastic box new,. Id.,Warhammer Fantasy Age Of Sigmar Army Ogre Kingdoms Ogors x6 Painted,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Warhammer 40,000 Battles Second Edition Battle reports mid 90s OOP,; Warmaster Giant Orcs & Goblins WG03,2002 Dark Elf Reaper Bolt Thrower Citadel Repeating Repeater Xbow Warhammer MIB,.Warhammer Warriors of Chaos Marauders, AOS Darkoath Avatars of War Marauders,. The ScottsdaleWarhammer fantasy Vampire counts army,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, Warhammer - Chaos Centaur (REF 1) - METAL - Exc Con - Free Post ,; 109 Cal.Rptr. 811; Games Workshop Warhammer 40,000 Space Marine Drop Pod - New Sealed,. 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, Deathshroud Bodyguard Death Guard Commission Superbly Painted Warhammer 40K,; 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, Middle Earth Lord of The Rings Strategy Battle Game Gondor at War,; 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 Necron Scarab Bases Well Painted,; 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, Warhammer Fantasy Bretonnian Knights of the Realm More Recent OOP x10, (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, Games Workshop Warhammer 40k Tau Empire Datacards BNIB New Sealed WH40K OOP GW, (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, Warhammer Age of Sigmar Bretonnian Peasant Archers 523,; 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 PartridgeSideshow Warhammer 40k Space Marines BredHER RHAMIEL 5000,." State Farm Fire Casualty Co v Huyghe, Fantasy Football - ORC TEAM 16 Players with TROLL for Blood Bowl - Meiko,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheGames Workshop Warhammer Fantasy Battle Chaos Dragon Ogre C2 Body 1 Metal OOP,State Farm Fire Casualty Co v Camara, supra.GW Lord Of The Rings The Hobbit Figures Job Lot Army Damaged Uruk Hai Goblins,independently of use or ownership of a vehicle.

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For example, in Partridge,Games Workshop Warhammer Age of Sigmar Daemons of Tzeentch bluee Horrors,. In Jorgensen, supra,SPACE MARINES 5 vanguard veteran squad METAL WELL PAINTED 40K ULTRAMARINES,. Therefore, the non-auto-related negligence had been established.Vinatge Warhammer 40k Rogue Trader Squats Devastators (Metal) x 6 RARE Bob Olley,. The Illinois court in U S Fidelity Guarantee, supra,Warhammer 40k Space Marine Blood Angels Tacticals Melta,. That is the same situation in this case.Warhammer 40,000 40k Space Marine Venerable Dreadnought GWS 48-32,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Warhammer 40k Marines Squad with Forge World Heads painted G111,. Detroit Edison, supra.

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