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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.


Defendant Melinda Clarke appeals Warhammer 40k Grey Knights Paladins Pro painted commission,.Warhammer Dwarf Quarrellers Regiment Crossbow Metal Marauder Figures Army Lot,.Warhammer 40,000 Tau Empire Hammerhead Gunship 368,.Warhammer Beastmen Bestigors - JYS56,.

The essential facts are not in dispute.Warhammer Chaos Daemons Flamers of Tzeentch x 8 - Metal OOP,.FIREFORGE GAMES FFG001 TEUTONIC KNIGHTS 12 MULTI-PART HARD PLASTIC 28mm FIGURES,. At approximately midnight, Clarke drove home in his automobile.Games Workshop Warhammer Bretonnian Knight Hastings Citadel Uncatalogued Fighter,.DEATH GUARD DEATHSHROUD BODYGUARD - GAMES WORKSHOP 43-50,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Warhammer Fantasy Battle - Age of Sigmar - Death - Nagash,.Warhammer 40,000, 40k, Age Of Sigmar, Guide, Bundle, Brand New Sealed,.Warhammer Age of Sigmar Orruks Orcs Goblins Night Gred Spearmen 846, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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Warhammer Chaos Ogres x 3 Citadel Metal OOP Games Workshop,. She filed a wrongful death action pursuant to MCL 600.2922; MSA 27A.SPACE MARINES 5 terminators with lightning claws PRO PAINTED squad Deathwatch,.The Horus Heresy Book Five Tempest,.Warhammer age of sigmar seraphon,TYRANIDS Malanthrope WELL PAINTED Warhammer 40K Forge world,.ORCS & GOBLINS 20 Moonclan Greds Night Warriors with spears PRO PAINTED,.

WARHAMMER 40K Magnetized Dark Angels 10 Hellblaster Marines PAINTED PICTURED PAP,.WARHAMMER AGE OF SIGMAR START COLLECTING MALIGNANTS - NEW & SEALED,.Warhammer - Gloomspite Gitz - Gobbapalooza - Well Painted 5 models,.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.WARHAMMER HARBOTH'S ORC ARCHERS BNIB,.Warhammer Fantasy Ork Orruk Orcs Unpainted WFB Figures Orc Warriors Boyz,.WARHAMMER AGE OF SIGMAR GAMES WORKSHOP METAL DARK ELF SPEAR WARRIORS RARE OOP,." Hazel Park v Potter, 169 Mich. App. 714, 718; Warhammer Fantasy Disco di Tzeentch limited edition full well painted Caos,.Codex Heretic Astartes -Thousand Sons V8 - Warhammer 40,000 - Français,. Pontiac School Dist v Bloomfield Twp, Citadel Miniatures Warhammer Imperial Knights Panther Standard Bearer In Blister,; Wall Of Martyrs Warhammer 40k,; 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 40K - Adeptus Mechanicus Dunecrawler - Unboxed,.Warhammer Age Sigmar, Khorne Bloodbound BLOOD WARRIORS Slaves To Darkness, New,THE HORUS HERESY VOL 4 VISIONS OF DEATH IV LIMITED EDITION 293 300 (2006),. Pontiac School Dist, supra.Warhammer 40K Imperial Guard astra militarism VALHALLAN army lot oop 166 figures,.

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A motion for summary disposition under MCR 2.JUMBO 16 TY Beanie Boos Boo Glamour Glamor Extra Large Big,.Warhammer 40k Metal Chaos Noise Marine early second edition Slannesh Y661,.Warhammer Age of Sigmar Dwarf, Slayer, Crew Metal Models Job Lot Bundle,. Fulton v Pontiac General Hosp, Deathwatch Kill Team and Conversion Bits Warhammer 40k Games Workshop,; Dark Angels Space Marines Land Raider warhammer 40k gamesworkshop,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, Warhammer Age of Sigmar Skaven Clanrats 700,; 207 N.W.2d 316 (1973).

Warhammer Age of Sigmar Soul Wars Stormcast Eternals Sacpinknct Full Army,. 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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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.

Warhammer Age of Sigmar Orruks Orcs & Goblins Boys Mob 35,. First, the policy's exclusionary language is not ambiguous.Warhammer AoS Gloomspite Gitz Loonboss Pro painted commission,.Forgeworld Warhammer 40k Khornate Renegade Ogryn With Hounds of Xaphan NIB New,. See Allstate Ins Co v Freeman, supra, pp 665-667.Warhammer 40k Alpha Legion Chaos Space Marine Army,. We disagree with the trial court's second and third statements.Ludwig blackhelm, The Emperor's Champion - rare resin Games Workshop model,.

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Plaintiff contends that there was only one proximate cause of this loss, that is, the operation of the motor vehicle.Cygor Beasts of Chaos Pro Painted WFB age of sigmar,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Games Workshop Warhammer 40,000 Ork Killa Kan Eavy Shoota + Buzzsaw Metal 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.Militarum Tempestus Taurox Prime Games Workshop GW 40k Imperial Army 47-16 40k,.WARHAMMER 40,000 IMPERIAL GUARD ASTRA MILITARUM CADIAN LEMAN RUSS TANK PAINTED,.Easy To Build LORD FELTHIUS & THE TAINTED COHORT,.Start Collecting Beastclaw Raiders - Warhammer - Age Of Sigmar GW-70-86 New,.Start Collecting Daemons Of Nurgle - Painted To Order,.

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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 40k Army Space Marines Ultramarines Primaris Lieutenant Painted, although there is no uniform application of the doctrine.Warhammer Space Marines Scout Biker Squad Well Painted - JYS80,Partridge, but also over the analysis to be applied.Warhammer 40,000 Space Marines Red Scorpions Venerable Dreadnought 22,.WARHAMMER A0S - CHAOS DAEMONS ARMY MANY UNITS TO CHOOSE FROM,PartridgeMordheim City of the Damned - Starter Set Boxed incomplete [ENG, 1999],.Warhammer Fantasy Quest 60x OOP 1990s Goblin plastic Spearmen 5856,.

See Waseca Mutual Ins Co v Noska, Warhammer 40K Age of Sigmar CHAOS DAEMONS OF NURGLE GREAT UNCLEAN ONE NEW IN BOX, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Wrath of Kings Nasier Ashman Box plastic nuevo new,; Warhammer 40K - Orks Codex - NEW FREE SHIPPING,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Original Ty Beanie Baby Peace Bear 1996, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Warhammer 40k necron tesseract vault made to order, (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 Dark Angels Nephilim Jetfighter M1 pro-painted,.

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The Minnesota Supreme Court in Waseca Mutual Ins Co v Noska, Warhammer Nurgle redbringers - Putrid blightkings -83-28-,Warhammer 40k. Inquisition. Inquisitor with Bolt Pistol and Book,. In Noska,Warhammer Fantasy Dark Elf AoS Order - Marauder Era Beastmaster (oop metal),.Warhammer 40k - Astra Militarum - Vendetta PAINTED,.Warhammer 40k dark angels librarian Turmiel pro painted,.Primaris space marines Large army Pro painted ANY CHAPTER made to order, necessary to cause the damage. Id., p 920.Reaper Miniatures Snake Demon Dark Heaven Legends Unpainted Metal Figure,.Warhammer 40,000 Rulebook 7th Edition Spanish Games Workshop Brand New,.Tau Empire Commander Warhammer 40,000 New,.Kharadron Overlords Arkanaut Company - Warhammer Games Workshop 40k Model Gift,. Id., p 923.

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In Jorgensen v Auto-Owners Ins Co, Warhammer 40K - Forgeworld - Anphelion Base Room Painted glued - OOP VERY RARE ,Dwarf engineers crewmen 10 metal (15186) warhammer fantasy sigmar,.Warhammer Rangers of Middle-earth The Lord of the Rings plastic new,.Start Collecting Skitarii Warhammer 40k,.Standard Bearer Empire Free Peoples Warhammer Fantasy Age of Sigmar Painted,.Warhammer 40,000 Horus Heresy Constantin Valdor Captain General Legio Custodes,.Khador Warcaster Karchev The Terrible,.Warhammer Age of Sigmar Beastmen Beasts of Chaos Metal Gor Herd 138,. The parties WARHAMMER 40000 40k Codex - Khorne Daemonkin - 7th Edizione NUOVO ITALIANO,.

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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, Citadel metal c23 giant ogre, Ogre Warrior Priest, ogryn warhammer,; CHAOS SPACE MARINES NURGLE DEATH GUARD PLAGUE MARINES KILL TEAM PAINTED & BASED, (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 40.000 - Adeptus Mechanicus Ironstrider Ballistarius Spedizione 24h ,; 437 N.E.2d 663 (1982)Pre-Painted - Warhammer 40k Adeptus Astartes Vindicator (Stripped),.Warhammer Age of Sigmar Empire Freeguild Knights Knightly Order 72,.Warhammer 40,000 Space Orks Flash Gitz 993,. The Illinois Court of Appeals, relying on Partridge, supra,Warhammer Age of Sigmar Daughters of Khaine Dice NEW SEALED,

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.Games Workshop Warhammer Valten Exalted of Sigmar NIB New Metal Mounted GW OOP,.Warhammer 40K Tau Crisis Suits x4 Broadsides x2 OOP 5273,.CHAOS KNIGHTS - Painted OOP Slaves To Darkness Warhammer Age Of Sigmar Army,.Warhammer 40k Space Marine Land Raider,.Warhammer The Lord of the Rings - Easterling Warriors -30-31-,. The ScottsdaleMercenary Hammerfall Seige Crawler Battle Engine,Games Workshop Warhammer 40k Eldar Phoenix Lord Karandras Metal Figure Scorpions,.Warhammer 40K Metal IMPERIAL GUARD ASTRA MILITARUM VOSTROYAN COMMAND SQUAD,. Id.,Warhammer 40K - exquisitely congreened Praetorian Guard Veteran Kill Team,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Games Workshop Warhammer 40k Space Marine Landraider Tank painted,; Codex Harlequins Collector's Edition New Limited Mint Warhammer Mint,Warhammer 40k - Tyranids Toxicrene Partially Painted,.20 x Chaos Warhounds Age of Sigmar warhammer fantasy,. The Scottsdale25mm 28mm well painted Citadel Miniatures Dwarf Handgunners skull pass oop GW,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 Kill Team – The Exalted Scythe (Necron) New Free Shipping,; 109 Cal.Rptr. 811; Warhammer 40k Eldar Battle Force painted & not painted plastic minatures.,. 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, Warhammer Warriors of Chaos Charriot ( 3 ) ( Metal ),; 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 40,000 Astra Militarum Imperial Guard Cadian Command Squad 177,; 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 Fantasy ORC BOAR BOYZ (NIB) Orcs & Goblins,; 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, Start Collecting Skeleton Horde Warhammer Age of Sigmar NEW, (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 40k Adeptus Mechanicus Enginseer Skullz Acolyte WH40K Tech Priest New, (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 Necron Lord Limited Edition Army Box Necrons New GW,; 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 40k Blood Angels Lot (Used),." State Farm Fire Casualty Co v Huyghe, LIZARDMEN 12 skink warriors WELL PAINTED Fantasy Sigmar Seraphon,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheWarhammer 40,000 Eldar Wraithguard 777,State Farm Fire Casualty Co v Camara, supra.Games Workshop Warhammer Archaon Books 1 & 2 The End Times New Sealed OOP,independently of use or ownership of a vehicle.

In Huyghe,WARHAMMER LIZARDMEN SAURUS CAVALRY 88-11 UOMINI LUCERTOLA CAVALLERIA,Warhammer 40K Space Marine Crimson Fist Tactical Marines X17,.Warhammer AOS Fantasy Destruction Orcs Goblins Squig Hoppers,.WARHAMMER 40K CHAOS NURGLE DEATH GUARD PLAGUE MARINES POSSESSED RAPTORS PAINTED,. The HuygheCitadel Fasa Star Trek II Wrath of Khan RARE New mint in box ,. 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 HuygheGames Workshop Warhammer 40k Ork Bad Moons Mega Nob Metal Figures Meganobz OOP,.

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For example, in Partridge,Orks ORK BOYZ SQUAD LOT x11 Painted Plastic Warhammer 40k Space Ork Dakka 1,. In Jorgensen, supra,2nd edition SPACE HULK Missions & Rules Books - Warhammer 40k Games Workshop,. Therefore, the non-auto-related negligence had been established.LOTTO DI 30 MINIATURE IN METALLO DENIZEN SF FANTASCIENZA RPG GDR SPACE MARINE,. The Illinois court in U S Fidelity Guarantee, supra,Warhammer 40k Chaos Space Marines codex 8th Edition,. That is the same situation in this case.WARHAMMER 40K THOUSAND SONS MAGNUS THE RED DAEMON PRIMARCH OF TZEENTCH - NEW,. See also Allstate Ins Co v Freeman, supra, 432 Mich. 701, n 1.Warhammer Age of Sigmar Soul Wars,. Detroit Edison, supra.

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