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.
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.
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.
from Montgomery District Court; F. William Cullins, judge.
Fitzpatrick, of Fitzpatrick & Bass, of Independence, for
R. Kelly and Charles Ault-Duell, of Norton, Wasserman, Jones
& Kelly, L.L.C., of Salina, for appellee.
Arnold-Burger, C.J., Leben and Burgess, JJ.
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.
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,
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
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
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.
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.
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 ...