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Allen v. Marysville Mutual Insurance Co.

Court of Appeals of Kansas

October 20, 2017

Kenny and Sharon Allen, Appellants,
v.
Marysville Mutual Insurance Co., Appellee.

         SYLLABUS

         1. An appellate court applies the same standard as the trial court in reviewing the grant of a summary-judgment motion. Summary judgment is proper only when the motion, together with the evidence submitted by the parties, shows that there is no genuine issue as to any significant fact and the moving party is entitled to judgment as a matter of law.

         2. In this case, law-enforcement officers confronted an armed and dangerous suspect, holed up in someone else's residence, after a two-state police chase. The officers had legal authority to enter the residence, arrest the suspect, and search for evidence without a warrant, but the officers obtained a search warrant, anyway, as a prudent step to protect the ability to use evidence in a later criminal case against the suspect. In the course of arresting the suspect, officers caused substantial damage to the home. On these facts, an exclusion in the homeowners' insurance policy for "a loss which results from order of civil authority" did not apply because the damages did not result from the issuance of the search warrant.

         3. In this case, conflicting hearsay evidence was presented on a factual issue necessary to determine whether the loss was covered by the homeowners' insurance policy. Accordingly, summary judgment cannot be granted on the coverage issue.

         Appeal from Montgomery District Court; F. William Cullins, judge.

          W.J. Fitzpatrick, of Fitzpatrick & Bass, of Independence, for appellants.

          Norman R. Kelly and Charles Ault-Duell, of Norton, Wasserman, Jones & Kelly, L.L.C., of Salina, for appellee.

          Before Arnold-Burger, C.J., Leben and Burgess, JJ.

          LEBEN, J.

         Kenny and Sharon Allen owned a rental home in rural Montgomery County, near the small town of Liberty, between Coffeyville and Independence. Brian and Lori Reedy rented the home.

         While the Reedys were out, a two-state police chase ended near their home. It ended when a local sheriff's deputy managed to stop the last of three people who had been fleeing police in a chase in which shots had been fired at police officers and one had been hit. When stopped in this rural area, the man began another gunfight with police, and a civilian he'd taken hostage in a carjacking during the chase was shot. The man fled the gunfight on foot, ending up at the Reedy residence. According to the Allens, he then broke a window to gain entry to the garage and, ultimately, the residence.

         Not surprisingly, law-enforcement officers quickly surrounded the house, but their calls for the suspect to come out and surrender got no response. Eventually, the officers decided the safest approach would be to fill the home with tear gas and pepper spray in an effort to limit the areas of the home the suspect could be in and to degrade his ability to respond aggressively when officers eventually came in. So officers shot what may have been 15 canisters at the house, most breaking through windows and then delivering their intended payload upon hitting some object (often a sheetrock wall) in the house.

         Their strategy worked. When officers ultimately broke through a door, they found the suspect hiding under a mattress in a closet, apparently doing his best to avoid the chemicals that would have been irritating his eyes and causing difficulty breathing. He was taken into custody without further gunshots or injury.

         Unfortunately, the damage to the house from all of this was extensive. Repair estimates ranged from $34, 000 to $36, 000, while the house was insured for $32, 000. In the Allens' view, it's a total loss.

         So the Allens filed a claim with their property-insurance carrier, Marysville Mutual Insurance Company. Marysville Mutual said that the loss was totally excluded from coverage by a policy provision that excluded coverage for "a loss which results from order of civil authority, " even if there were other causes for the loss that would have been covered under the policy.

         Marysville Mutual argues that the search warrant officers got from a local judge while they were waiting to enter the home constitutes an "order of civil authority" and that the officers entered under that authority. The district court granted summary ...


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