Stephen M. Deters and Donna K. Deters, Appellants,
Nemaha-Marshall Electric Cooperative Association, Inc., and Alliance Indemnity Company, Appellees.
BY THE COURT
Under K.S.A. 60-513(b), it is the last original wrongful act
giving rise to the cause of action, not the last contact
between the plaintiff and defendant that starts the running
of the statute of repose clock. The statute of repose time
limits do not restart simply because the defendant interacted
with the plaintiff after completing the original negligent
Parties will not avoid summary judgment when their arguments
are based on supposition and conjecture. Parties must state
facts based in evidence to support their position and avoid
Courts will not consider a party's self-serving affidavit
that conflicts with earlier deposition testimony when the
party is using the affidavit to avoid summary judgment.
Insurance companies have a duty to make a good-faith
investigation of the circumstances surrounding a claim before
refusing to pay a claim. When considering whether insurance
companies acted in good faith, courts must consider the
circumstances under which the insurer was investigating the
Insurance companies cannot be held to have acted in bad faith
in denying a claim where plaintiff fails to establish damage
to his or her property.
from Nemaha District Court; John L. Weingart, judge.
William C. O'Keefe, of O'Keefe Law Office, of Seneca,
Cafer and Terri Pemberton, of Cafer Pemberton LLC, of Topeka,
for appellee Nemaha-Marshall Electric Cooperative
W. Riggs, of Larson & Blumreich, Chartered, of Topeka,
for appellee Alliance Indemnity Company.
Leben, P.J., Green and Powell, JJ.
M. Deters and Donna K. Deters appeal from the judgment of the
district court granting Nemaha-Marshall Electric Cooperative
Association, Inc.'s (Nemaha-Marshall) and Alliance
Indemnity Company's (Alliance) respective motions for
summary judgment. On appeal, the Deters argue that the
district court erred by ruling that their claims against
Nemaha-Marshall were barred under the statute of repose,
K.S.A. 60-513(b). The Deters further argue that the district
court erred by ruling that their homeowner's insurance
policy with Alliance did not cover their claims for damages.
we conclude that the Deters' arguments are unpersuasive.
As a result, we affirm the district court's orders of
following facts are uncontroverted for purposes of this
appeal: The Deters live in Nemaha County, Kansas, and receive
electricity from Nemaha-Marshall. Stephen has lived on the
same land in Nemaha County his entire life.
1994, the Deters bought a "Ronk GTS" from
Nemaha-Marshall. A GTS "allows a customer to safely
connect a generator to his or her household wiring."
Thus, if the utility power goes out, or a utility customer
simply wants to use the generator, the utility customer has a
generator backup. Nemaha-Marshall installed the GTS at the
Deters' electric pole. Although Nemaha-Marshall installed
the GTS, the Deters owned the GTS outright.
living in their current house, the Deters started
constructing a new house on their land. The Deters purchased
and installed a heat pump in the new house in 1998 (original
heat pump). The Deters also purchased and installed an oven,
microwave, dishwasher, washing machine, and dryer in the new
house in 1999.
January 2000, the Deters moved into the new house. In the
summer of 2000, the Deters removed their old house from their
land. In addition to their new house, the Deters had a shop,
implement shed, and a partial barn on their land. The new
house, shop, and implement shed all received electricity.
connected the GTS to the shop and implement shed sometime in
1994 or 1995. Nemaha-Marshall connected the GTS to the new
house sometime between 1996 and January 2000. Nemaha-Marshall
charged the Deters for labor, a truck roll, and pigtails-a
term for a device used to connect electrical wires-on
November 7, 1997. Nemaha-Marshall never charged the Deters
for work related to the GTS following 1997.
28, 2010, the Deters' original heat pump stopped working.
They installed a new heat pump on September 27, 2010. The
Deters believed that this heat pump was defective. In October
2011, the Deters replaced this heat pump with another heat
pump. Thus, the heat pumps were replaced twice: Replacement
heat pump #1 and replacement heat pump #2.
their original heat pump stopped working in May 2010, the
Deters filed an insurance claim with their insurer Alliance.
The Deters alleged that an electrical event damaged the
original heat pump. At first, the Deters asserted that the
wiring on the original heat pump caused the heat pump to fail
from low voltage. Eventually, though, the Deters asserted
that lightning damaged the original heat pump.
Bitar, an independent engineer retained by Alliance, examined
the heat pump's compressor, as well as photos of the heat
pump. Bitar explained that the heat pump showed no signs of
suffering an "electrical surge event." Instead,
there were "signs of arcing and copper globules/balls .
. . on the rotor and the stator of the compressor indicating
severe failure of the windings insulation." Bitar
determined that "the failure of the windings'
insulation was due to the compressor running hot as a result
of low level of refrigerant." Based on this, Bitar
concluded that the heat pump underwent "prolonged
electrical failure" while running on low refrigerant,
ultimately resulting in the pump's failure.
denied the Deters' claim. Alliance notified the Deters
that their homeowner's insurance policy did not cover the
damage to the original heat pump under Section 1-Perils
Insured Against: A. Coverage A-Dwelling and Coverage B-Other
Structures, (6)(a) and (b), which stated that Alliance did
not cover losses caused by "[w]ear and tear, marring,
deterioration" or "[m]echanical breakdown . . .
Deters also experienced some problems with some appliances
during 2010. "[B]y November 2010," an electrical
event damaged the Deters' oven, microwave, dishwasher,
washing machine, and dryer. The Deters replaced only some of
January 16, 2013, the Deters made a claim against Alliance
for replacement of heat pumps #1 and #2. The Deters alleged
that they were entitled to compensation for damage to the
replacement heat pumps from low voltage. Since Alliance
denied the Deters' claim for damage on their original
heat pump, the Deters had purchased an equipment breakdown
Geer, an independent engineer retained by Alliance, examined
replacement heat pump #2. This was the only heat pump
available for examination since the company the Deters bought
replacement heat pump #2 from had already removed replacement
heat pump #1. Geer determined that "[n]o indications of
low voltage were observed." Geer noted that the
Nemaha-Marshall's "electronic monitors have reported
no low voltage events . . . ." He noted that there
"was no electrical or physical damage observed in the
heat pump control compartment." Moreover, he explained
that the heat pump's voltage output was normal when he
tested it while running other equipment. Geer determined that
any issues with replacement heat pump #2 would resolve upon
further breaking in of the new unit and installing a
"hard start kit," which added "capacitance to
September 2013, while the Deters' insurance claim was
still pending, Stephen Deters opened the cover of the GTS.
When he did this, he discovered that some load wire
connections to the GTS were burned. Based on discoloration of
some wires, he also believed that there was evidence of a
September 17, 2014, at the Deters' request,
Nemaha-Marshall replaced the old GTS with a new GTS.
October 9, 2014, Alliance denied the Deters' pending
claim, asserting that they had no coverage under the
homeowner's insurance policy for low voltage events.
Alliance explained that under the provision on dwellings,
their homeowner's insurance policy excluded coverage
caused by faulty, inadequate, or defective design,
workmanship, repair, construction, or material used in repair
or maintenance. It asserted that under the provision on
personal property, their homeowner's insurance policy did
not include coverage on improper wiring. Moreover, Alliance
asserted that the low voltage events did not constitute an
"accident" as meant under the Deters' equipment
March 16, 2015, the Deters sued both Nemaha-Marshall and
Alliance for damages related to the heat pumps and
appliances. The Deters argued that Nemaha-Marshall's
negligent wiring of the GTS resulted in the destruction or
damage of their heat pumps and appliances. In their petition,
the Deters alleged that Nemaha-Marshall was negligent from
the moment it connected the GTS to their new house. The
Deters also argued that Alliance was liable because Bitar and
Geer "failed to examine the [GTS] or take any
measurements from the connection box to determine if there
exist[ed] a cause for low voltage events, and if such low
voltage events could be related to how the wires were
connected in the connection box." As a result, the
Deters argued that Nemaha-Marshall and Alliance were jointly
and severally liable for over $50, 000 of damages relating to
the original heat pump, the replacement heat pumps, and
discovery, the Deters hired Cris Neagele as their electrical
engineer expert. According to Neagele, Nemaha-Marshall's
improper wiring of the GTS caused the damage to the
Deters' original heat pump and appliances in 2010.
Neagele opined that Nemaha-Marshall crimped wires, placed the
wires in pigtails, and then inserted the wires in lugs not
designed to fit those particular wires. He explained that
this practice could "cause excessive heating, corrosion,
and high resistance point, which may cause a voltage drop
during periods of high current draw." Neagele also
believed that discoloration on some wires suggested that
somebody had removed, cleaned, and replaced the wires at
least once in the past.
Stephen's deposition, Stephen testified to the following:
He testified that he believed Nemaha-Marshall's wiring
was responsible for the damage to his original heat pump,
replacement heat pumps, and appliances. He testified that the
first time he learned about the problem with the GTS was when
he opened it in September 2013. He stated that he had no
memory of "a service call out to [his] house" where
Nemaha-Marshall electrical workers inspected the GTS. He
explained that the company from whom he bought replacement
heat pump #1 replaced it with replacement #2 at no cost. As a
result, he did not have to pay for replacement #2. He
explained that since the installation of the "hard start
kit" and the new GTS, he had experienced no problems
with replacement heat pump #2. He testified that he was
unaware of any physical damage to the replacement heat pumps.
and Alliance moved for summary judgment against the Deters.