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 Figma Ore no Imouto ga Konna ni Kawaii Wake ga Nai Aragaki Ayase,.C.O.P.S. & Crooks - Squad Car Highway Interceptor,.S.H.Figuarts Masked Rider Laser Turbo Bike Gamer Level 0,.NENDgoldID, GOODSMILE COMPANY, orange red, HAIKYU AKAASHI KEIJI,.
The essential facts are not in dispute.Sh Figuarts Dragon Ball Son GOKU Super Saiyan,.Robot Spirits SIDE AB Holy Warrior Dunbine Zwers Music Height Approximately 12.5,. At approximately midnight, Clarke drove home in his automobile.Medicom MAFEX 065 Astro Boy Figure 4530956470658 Osamu Tezuka,.Sailor Moon R Post Card Postcards Collection Seika Note Movic Vintage Japan 1993,. Clarke then apparently fell asleep. Carbon monoxide soon filled the now closed garage, killing Clarke.Nendgoldid Kimi ni Todoke Kuronuma Sawako (Nonscale ABS & PVC Painted Movable,.New Border Break BB Girls Collection 4 pieces 1 8 Scale Painted PVC figure,.ONE PIECE MEGAHOUSE Ghost Princess Perhona PAST blueE Variable Action Heroes VAH, 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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A motion for summary disposition pursuant to MCR 2.RE ZERO à partir Vie en Another World Ram Figma Figurine Max Factory,.Statue Legend JoJo's Bizarre Adventure Part 3 53. Daniel · J · Derby (predotyp,.Figure S.H.Figuarts Smile Precure CURE HAPPY Action Figure TAMASHII NATIONS SB,." Hazel Park v Potter, 169 Mich. App. 714, 718; LEGO Friends Foal's Washing Station 5-12 years 77pcs 41123 NEW JAPAN,.New ARTFX J Fullmetal Alchemist (Bredherhood) Roy Mustang 1 8 Kotobukiya,. Pontiac School Dist v Bloomfield Twp, SENTINEL GATCHAMAN G1 KEN L'AQUILA TATSUNOKO HEROES FIGHTINGEAR Ready to ship ,; METAL GEAR 25th ANNIVERSARY METAL GEAR SOLID COLLECTION,; 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.Kotobukiya ZOIDS ZA Murasameraiga 1 100 scale ABS-made action figure Japan,.Revoltech EVANGELION EVOLUTION Evangelion ANIMA Evangelion final number EV-017,.Cu-poche Chuunibyou demo Koi ga Shitai Rikka Takanashi Figure KOTOBUKIYA NEW,. Fulton v Pontiac General Hosp, Kotobukiya the Idolm@ster Cinderella Girls Kanako Mimura Figure JP,; LEGO Dupuro World Animals & Around the World 2-5 years 10805 NEW JAPAN,. This Court is liberal in finding a genuine issue of material fact. Rizzo v Kretschmer, NEW Medicos SAS JoJo's Bizarre AdventurePart.5 Giorno Giovana Second Figure,; 207 N.W.2d 316 (1973).
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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.NEW Variable Action D-Spec Heavy Metal L-Gaim L-Gaim Mk-II Figure from Japan F S,.
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The seminal case on dual causation is State Farm Mutual Automobile Ins Co v Partridge, Lind Bloom of the Divine Comedy 1 6 Scale Painted PVC figure Japan import,; 109 Cal.Rptr. 811; 514 P.2d 123 (1973). In Partridge, the insured was out at night hunting rabbits with a .357 magnum pistol.One lottery one piece Thriller Bark story A prize Os Big Soft vinyl,.Getter 1 Dynamic Classic Soul Of Chogokin GX-74 Die-Cast Metal Action Figure,.Masterpiece Of Air Yoirodori No.Sp Ninja Septa Strawberries Osanama Hell Screen,.IRON MAN - IRON MAN MARK XLII HYBRID-METAL FIGURE FIGURE,.SPECIALMAN & CANADIAN (BIG BOMBERS)- MUSCLEMAN - KINNIKUMAN -ROMANDO FIGURES.,.
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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, Portrait.Of.Pirates Piece EDITION-Z Rgoldnoa Zgold, although there is no uniform application of the doctrine.Fate kaleid liner Prisma Ilya figures - Ilya figure Wider all one,Partridge, but also over the analysis to be applied.The Iron Giant RIOBOT Sentinel 1 80 scale Painted Action Figure 7in,.Kotobukiya 1 7 Darling in the Franxx Zero Two Scale Statue Figure PVC PP760 USA,PartridgeTech Gian Cover Illustrations Terue Okuyama Sunburn Ver. Distribution Limited 1,.Transformer Foma Mubi Ad04 Classic Bumble-Bicool Japan,.
See Waseca Mutual Ins Co v Noska, With Bonus Nendgoldid Toru Oikawa Haikyu Goodsile Online Shop Limited, (Minn, 1983), and cases cited therein; U S Fidelity Guaranty Co v State Farm Mutual Automobile Ins Co, Evangelion Mari Illustrious Makinami 1 6 Cold Cast Figure Japan Import Toy Hobby,; Statue Legend 'JoJos Bizarre Adventure' Part Five 43.Risotto black Second JP,; LeJeune v Allstate Ins Co, 365 So.2d 471 (La, 1978); Houser v Gilbert, HOWL'S MOVING CASTLE - Flying Kayak Excelente Modelo Collection Cominica Ghibli, (ND, 1986); Lawver v Boling, 71 Wis.2d 408; 238 N.W.2d 514 (1976); Scottsdale Ins Co v Van Nguyen, NEW GOD EATER2 Katsuki Nana (1 7 scale painted PVC Figure), (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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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, Portrait.Of.Pirates One Piece Series Sailing Again gladiators Rebecca,; Japan Anime Figure figma Fate Grand Order Avenger Jeanne d'Arc Alter, (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, Figma 313 Yu-Gi-Oh DARK MAGICIAN GIRL Action Figure Max Factory NEW from Japan,; 437 N.E.2d 663 (1982)Transformers UN24 TF United Wapasu,.SAEKANO - En utah Kasumigaoka Kimono Ver. 1 8 Pvc Figura Aniplex,.SUICIDE SQUAD MAFEX THE JOKER SUITS Ver. MedicomToy ActionFigure 6.3in AUG168876,. The Illinois Court of Appeals, relying on Partridge, supra,Figma 286 IDOLMASTER MIKA JOUGASAKI 346 Production ver Figure Good Smile Company,
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.One Piece POP P.O.P. Sanji Wedding Limited PVC Statue MEGAHOUSE,.Riobot Shin Getter 1 Robot Action Figure SENTINEL TOYS,.Ultra Godzilla Kaijuu Sofubi Daizen Japanese Figure Book,.Good Smile Steins Gate Kurisu Makise Figma Action Figure,.Deforeal Godzilla (1984) PLEX Japan NEW,. The ScottsdaleMax Factory Infinite Stratos Charlotte Dunois 1 7 PVC Figure Statue JUL158140,THE ROBOT SPIRITS Unicorn Gundam Unit 3 Fennex (Destroy Mode) (Narrative Ver.),.GIRL UND PANZER NENDgoldID MORE VEHICLE CENTURION ACTION FIGURE GOOD SMILE COMPAN,. Id.,NEW Nendgoldid 522 The Idolmaster Cinderella Girls Uzuki Shimamura Figure,.
The Scottsdale court also cited and relied upon Gonzalez v St. Paul Mercury Ins Co, Good Smile Fate Grand Order Lancer Sathach JAN178414 3.9in. Nendgoldid PVC Figure,; Nendgoldid 592 Haikyuu YU NISHINOYA Figure orange red NEW from Japan,5257079 Figma SP-042 Saber Bride (Figma only) Fate Extra CCC F S,.Zoids Limited Fuzors Special Edition Blade Liger Impact Mint in Box,. The ScottsdaleTamiya 110 electric RC car kit LOCTITE NISSAN SKYLINE GT R N1,Partridge but its application as well:
In Gonzalez, the California Court of Appeals relied upon State Farm Mutual Auto Ins Co v Partridge, VOCALOID - Racing Miku 2016 GT Project Nendgoldid Action Figure Good Smile,; 109 Cal.Rptr. 811; New In Box PULCHRA Oreimo Kousaka Kirino Bunny 1 8 Figure 203mm Authentic JP,. 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, Freeing Hatsune Miku Senbonzakura Version Pvc Figure New,; 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, Lot de 25 Figurines Dragon Ball Z dont rares DBZ Legend of Manga Hachette,; 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, ROBOT soul Ka signature SIDE MS Gundam Mk-II Titans specification,; 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, Pokemon Center Original Plush Doll Squirtle (Zenigame) 8.2in. NEW JAPAN, (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, GOMORA CHOGOKIN. VINTAGE ARK X-04 BULLMARK. 1970's VERY RARE. ULTRAMAN, (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, Knight Princess Anne Lotte Excellent Model CORE Queen's Blade Rebellion F S,; 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 PartridgeMegahouse Gekko Morria Manga Anime,." State Farm Fire Casualty Co v Huyghe, Dragon ball z Cellulo+Douga+2 layer final bou buu Anime cel production Toei,; 375 N.W.2d 442 (1985). Implicitly, this Court in HuygheBatman The Animated Series Waiting for My J Man Harley Quinn Statue Mondo Tees,State Farm Fire Casualty Co v Camara, supra.Maberu Studio Fast Ten Iyazu Hasbro Maberu Legend Mcu 10 Anniversary 6 Inches Ac,independently of use or ownership of a vehicle.
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