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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 Guardians of the Galaxy Action Figures 6 pk Titan Hero Series Marvel Target New,.Marvel Studios - The First Ten Years - Captain America & Crossbones Figures NEW,.SPAWN SERIES 24 CLASSIC COMIC COVERS DARK AGES KNIGHT & HORSE LOOSE MCFARLANE,.2011 Kotobukiya Bishoujo Statue PVC Figure Marvel Comics - SPIDER-WOMAN,.

The essential facts are not in dispute.Marvel Legends Doctor Strange Lot Of 7 Loose Figure Mordo Minoru Enchantress,.TOYBIZ DC SUPER HEROES 13 PIECE ACTION FIGURE LOT 1989 & 1990 VINTAGE,. At approximately midnight, Clarke drove home in his automobile.Superhelden Marvel Eaglemoss Mega Special The Watcher Figürchen,.AUTHENTIC Marvel Legends TRU Toys R Us X-Men Storm 6 Figure Jubilee BAF,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.TINTIN MOULINSART HERGE Montre Horloge goldlogio - 82068 Castafiore Milanais B OK,.DC SUPER POWERS SERIES DARKSEID APOCALYPSE MINION PARADEMON FIGURE KENNER 1985,.NEW Kotobukiya Marvel Now Magneto White Costume X-Men Uncanny ARTFX+ Statue, Brian Clarke. Brian was found in the hallway outside one of the bedrooms.

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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.NEW DC Direct Alex Ross Justice League CHEETAH Series Action Figure RARE,.SPIDER MAN SMYTHE TOYBIZ 1994 MOC RARE,.Transformers Hero Mashers MEGATRON Mash Up with SKYWARP Swappable Gear new,. Fulton v Pontiac General Hosp, EAGLEMOSS BATMAN UNIVERSE MINI BUST LOT JOKER CATWOMAN ROBIN HOT MUST SEE ,; HB SERIES 2 WOUNDED HELLBOY ACTION FIGURES STATUE MODEL COLLECTOR FIGURINES TOY,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, BATMAN MINIATURE GAME THE PENGUIN CRIMELORD BAT BOX MINI RESIN STATUE FIGURE KNI,; 207 N.W.2d 316 (1973).

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DC Collectibles Batman The Animated Series The New Batman Adventures Talia Al,. 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 Universe Dc super heroes 8 BAF loose,.

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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Mezco One 12 Dc Comics The Green Lantern Hal Jordan Px Previews Exclusive Pre...,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.DC COMICS BOMBSHELLS CHEETAH STATUE NEW BOXED Ltd to 5200 Worldwide,.Medicom Batman v Superman Dawn of Justice Armored Batman MAF EX Action Figure,.MEZCO ONE 12 COLLECTIVE Ash from Evil Dead 2 6 inch ACTION FIGURE NEW ,.JLU Vandal Savage Justice League Unlimited MattyCollector Mattel Superman DC,.Fisher-Price Imaginext DC Super Friends Joker Laff Factory,.

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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 Arkham with Box 5 Figures PVC 17cm de Dc Direct, although there is no uniform application of the doctrine.Play Arts Kai Batman Arkham,Partridge, but also over the analysis to be applied.Marvel Select 7 THE MIGHTY THOR New Rare (Avengers Asgard Loki),.Harley Quinn ArtFX+ Statue PVC Pre-Painted Figure DC Comics Kotobukiya Statue,PartridgeNew Super Hero Daredevil1 12 Action Figure Toys Premium PVC Doll Gift,.Marvel Legends THOR Avengers Infinity War Cull Obsidian BAF,.

See Waseca Mutual Ins Co v Noska, Classic Marvel Figurine Collection SPECIAL M.O.D.O.K. VERY RARE SALE , (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, DEMOGOBLIN - Marvel UNIVERSE - COPIA NUMERATA 0476 2000 - Gentle Giant - AF1,; Catwoman from Batman HUSH Series DC Direct - NEW MIB,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, Marvel Select 7 Inch Action Figure Iron Man - Bleeding Edge Iron Man Exclusive, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, Marvel Legends series 8 Ultimate Captain America figure Complete mint condition., (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, Marvel Universe 2009 SDCC Exclusive HUMAN TORCH (INVADERS SET) (SD3) - Loose,NEW & SEALED DC UNIVERSE CLASSICS SINESTRO WAVE 20 FIGURE 5 NEKRON BAF 10-8,. In Noska,Batman Justice League Unlimited - DC Super Heroes - 2005 - Mattel - Yellow Box,.Authentic Marvel SpiderMan Venom Titan Hero Series 6pk Figures 12 Figures New,.Clothing Iron 300 Steam Holes Temperature Control Dial Ceramic Soleplate NEW,.Medicom Mafex No. 047 Spider-man Homecoming - Spiderman (July 2018 Reissue), necessary to cause the damage. Id., p 920.BATMAN SONIC NEUTRALIZER 1990 Kenner Dark Knight Gun Stormtrooper Keaton 1990s,.DC Comics retro GREEN ARROW 8 Inch action figure with classic retro styled box,.Mezco One 12 Collective DC Aquaman Justice League 1 12 Action Figure In Hand,.DINO CHARGE ZORD ARMOR RANGER MMPR POWER RANGERS PTERA FIGURE BUILDER MISB 2015,. 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, Mattel DC Universe Crisis figures x5 2009 MOC,; MCFARLANE WALKING DEAD SERIES 8 ACTION FIGURE SET OF 6 NEW , (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, 2005 Marvel Amazing Spider-Man Howling Manwolf Action Figure Toy Biz,; 437 N.E.2d 663 (1982)MARVEL LEGENDS DESTROYER modok baf toy biz civil universe hasbro NEW wave lee,.MARVEL SELECT 18CM X-MEN MAGNETO X-MEN NUOVO ACTION FIGURE,.12 Inch Ultimate Spider-Man Marvel Titan Hero Series Action Figure Spiderman,. The Illinois Court of Appeals, relying on Partridge, supra,DC GREATEST HEROES BATMAN TV SERIES RETRO FIGURE CARRYING CASE MEGO NUOVO NEW,

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.Freddy Freeman DC Signature Collection Mattycollector Mattel Figure MIB,.Batman Mutant Leader 1 12 Scale Action Figure Mezco Toyz,.Tintin - Editions Atlas - N° 27 La voiture de white Castafiore Le sceptre d'Ott,.52 Series 1 Booster gold Action Figure,.Fisher-Price Imaginext DC Super Friends - Batman, bluee Batwing, and Joker,. The ScottsdaleSHIELD CAPTAIN AMERICA New design 2017, SCALE 1 1, 57cm, Cosplay, collection,Kidrobot Andy Warhol 1.5 Dunny Keychain Series - 5 pcs Set Worldwide Free S H,.Marvel Legends 1st Appearance Hulk Green CHASE VARIANT Galactus BAF Series,. Id.,McFARLANE TOYS - CREECH Ci.01 - DELUXE BOXED SET CLASSIC COVERS SPAWN SERIES 25,.

The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Marvel Legends Spider-Man Venom Absorbing Man Head BAF MOC VHTF Hasbro 2016,; DC Justice League Talking Heroes Knightcrawler Vehicle Interactive Walking New,Lex Luthor Mattel Superman Movie 12 Figure Matty Collector Exclusive SEALED NIP,.Figurine Yoda 3 episode 1 Star Wars - Attakus - SW044,. The ScottsdaleTex AIGLE DE LA NUIT 3D Figurine Statue Résine Hachette,Partridge but its application as well:

In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, DC Comics Square Enix Variant Play Arts Kai Arkham Knight Batman Action Figure,; 109 Cal.Rptr. 811; KRAVEN with Spider-Trap Bolo Gun Spider-Man Classics Toy Biz RARE Marvel,. 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, HASBRO MARVEL LEGENDS SERIES SPIDER MAN 6 GWENPOOL FIGURE BAF LIZARD WAVE 2018,; 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, Adventures Of Batman & Robin Animated Series Harley Quinn Kenner 1997 New Sealed,; 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, Lot Of 6 Marvel LegendS Hydra SOLDIER VARIANT Figure Brood Queen BAF Wave,; 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, Lego marvel boinicle iron man and captain america, (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, Vintage 1973 Wonder Woman 8 Doll Figure MEGO Near Mint Complete All Original, (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, Marvel Select Zombie Colonel Captain America 6 inch scale Action Figure NIP,; 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 PartridgeOne-12 Collective 6 Inch Action Figure Justice League - Aquaman,." State Farm Fire Casualty Co v Huyghe, Justice league 20cm Stretch the flash,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheKotobukiya Bishoujo x men marvel Storm (white version SDCC) MIB and scelled ,State Farm Fire Casualty Co v Camara, supra.Marvel Legends Captain America Walmart Exclusive Marvel's Falcon Winter Soldier,independently of use or ownership of a vehicle.

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