                                        No. 116,888

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                KENNY and SHARON ALLEN,
                                       Appellants,

                                              v.

                          MARYSVILLE MUTUAL INSURANCE CO.,
                                      Appellee.

                              SYLLABUS BY THE COURT


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. Opinion filed October 20,
2017. Reversed and remanded.


        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.

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       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
judgment in favor of Marysville Mutual based on that policy exclusion.


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       But we think Marysville Mutual's argument overlooks some key words in that
exclusion—the loss must result from the order of civil authority. Here, the officers didn't
need a search warrant to go into the residence. A warrant wouldn't have been required to
apprehend this man who posed a clear threat to the local community and, officers had
good reason to believe, had committed attempted murder and other crimes on his way
there. Nor would a warrant have been required to enter the house to gather evidence since
both the property owners, the Allens, and the residents, the Reedys, had given officers
permission to go in. So the damage to the house was caused not by the issuance of a
search warrant but by the appropriate and foreseeable actions taken by law-enforcement
officers after a dangerous fugitive took refuge in a private home and refused to surrender.


       If the Allens are correct that the man entered the home by breaking a window, an
act of vandalism, then the damage to the house would be a covered loss: Losses caused
by vandalism are covered under the policy, and the damages here were a foreseeable
result of the fugitive's act of breaking into the home. But Marysville Mutual presented
other evidence suggesting that the man entered through an unlocked door. Accordingly,
summary judgment cannot be granted to either side given the conflicting evidence. We
reverse the district court's grant of summary judgment to Marysville Mutual and return
the case to the district court for further proceedings.


       With that overview, we will proceed to more fully set out the factual background,
the legal arguments, and our ruling.


                        FACTUAL AND PROCEDURAL BACKGROUND


       Each side filed a summary-judgment motion in the district court, and we take our
facts from the evidentiary materials provided with those motions. Most of the key facts
are not in dispute.


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        The story begins on a Thursday afternoon in May 2015 in Nowata County,
Oklahoma, which sits on the Kansas-Oklahoma border directly south of Montgomery
County, Kansas. Oklahoma officers stopped a Chevy Tahoe occupied by two men and a
woman. After the officer asked for some paperwork, he told the driver to shut off the car.
Instead, the driver sped off.


        Someone in the Tahoe fired at officers, hitting one in the head. Officers pursued as
the Tahoe headed toward Coffeyville, Kansas. Montgomery County sheriff's deputies
then joined in. They used spiked "stop sticks" to puncture the tires on the Tahoe, and it
ended up disabled and in a ditch, where the three occupants fled on foot into a wooded
area.


        Two of the three were quickly captured; one man had been shot in the exchange of
gunfire and the woman stayed with him. The third person, Alejandro Garcia, armed with
a weapon, managed to car-jack another vehicle—taking the driver hostage—and keep
going. A sheriff's deputy ultimately stopped that car, and the person who had been
driving the car-jacked vehicle was hit in the neck during another exchange of gunfire.
Garcia got out of the vehicle, fired at officers, and headed for the nearby Reedy
residence—the house owned by the Allens. No one was home.


        According to the Allens, Garcia broke a window in the garage, dove through it,
and then entered the house from the garage through an unlocked interior door. Marysville
Mutual says Garcia denied that, later telling police he came in through an unlocked door.
Either way, what would become a 14-hour standoff with police had begun.


        Local officers quickly secured the area. They used loudspeakers to order Garcia to
come out and surrender; he didn't. Eventually, officers from the Kansas Bureau of
Investigation's "High Risk Warrant Team" arrived to help out.


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       Also present at the scene were the Allens and the Reedys. They gave their consent
to search the home and offered keys to the residence to officers. But with all that Garcia
had already done that day, the officers couldn't safely just approach the house, put a key
in the lock, and walk in. The Reedys also advised police that they kept several firearms
and ammunition in the home.


       The law-enforcement team decided to use chemical munitions—tear gas and
pepper spray—to attempt to drive Garcia out of the house. These chemical agents
generally cause significant burning and watering of the eyes, a stinging or burning
sensation in the nose, tightness and pain in the chest, and difficulty breathing. So even if
tear gas and pepper spray didn't force Garcia outside, Garcia's exposure to the chemicals
would limit his ability to move around the house and to aggressively engage the police.


       As the night progressed, officers made another decision. They contacted a local
judge for a search warrant. In an affidavit, an officer set out facts showing why they
suspected that Garcia, holed up in the Reedy residence, had committed attempted first-
degree murder in the shooting of an Oklahoma officer. The judge issued a search warrant
for the Reedy residence, authorizing agents to collect "[t]he person of Alejandro Garcia,"
biological evidence, firearms, and electronic evidence.


       After the search warrant was issued, officers used 40-millimeter munitions
launchers to send canisters hurtling at high speed through glass windows, breaking
through the windows before being stopped by interior objects like sheetrock walls. As the
canisters collided with interior objects, they released the tear gas and pepper spray. Notes
made by law-enforcement personnel indicated that as many as 15 gas canisters may have
been shot into the house. In addition to achieving the intended purpose of making life
hard on Garcia, this also resulted in broken glass, damaged siding, damaged sheetrock,
chemical absorption into carpets, chemical stains, and other damage to personal property.


                                              6
        About an hour after deploying the tear gas and pepper spray, officers entered the
house by breaking through a glass patio door. They found Garcia under a mattress in a
closet and took him into custody without further violence.


        The Allens got two repair estimates, which were in the range of $34,000 to
$36,000. They had insured the property for $32,000. With the loss apparently greater than
the property's insured value, the Allens made claim on their property-insurance carrier,
Marysville Mutual. When Marysville Mutual denied the claim, the Allens sued.


        Each side presented a summary-judgment motion to the district court. The district
court concluded that coverage was excluded by a provision saying that Marysville Mutual
would "not pay for loss which results from order of civil authority." The court granted
summary judgment to Marysville Mutual, and the Allens appealed to our court.


                                         ANALYSIS


        On appeal from the grant of summary judgment, we apply the same standard the
trial court is required to apply. 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.
St. Catherine Hospital v. Alvarez, 53 Kan. App. 2d 125, 127, 383 P.3d 184 (2016). We
are also aware of the rules for interpreting insurance contracts, see Bussman v. Safeco Ins.
Co. of America, 298 Kan. 700, 707, 317 P.3d 70 (2014), but we do not rely upon them
because we find no ambiguity in the pivotal provision of the insurance contract at issue
here.


        In their summary-judgment motion, the Allens contended that the property
damage was caused by Garcia's act of breaking and entering the residence. According to
the Allens, Garcia's break-in triggered the policy's coverage for vandalism. Assuming

                                             7
Garcia broke a window to gain entry, he committed vandalism. The Allens then argued
that Garcia's break-in was the first in a series of event that resulted in the home's
damage—and that the remaining steps were easily foreseeable. Thus, they argue that the
vandalism, a covered event, was the "efficient proximate cause" of the loss and the loss is
therefore covered by the policy. By calling the vandalism the efficient or proximate
cause, the Allens are simply saying that it was sufficiently connected to the result that the
law should recognize the vandalism as the cause of the damage.


       As the Allens suggest, Kansas has applied a proximate cause or efficient cause
rule to determine whether a loss is covered under an insurance contract. See Casualty Co.
v. Power Co., 99 Kan. 563, 565, 162 P. 313 (1917); Jerry & Richmond, Understanding
Insurance Law 534-39 (5th ed. 2012). The Allens note that under typical Kansas law for
determining when something is the proximate, or legal, cause, when the actions of one
party lead to loss through additional but foreseeable actions of other parties, the first
party's act remains the proximate cause of the injury. In support, they cite Steele v. Rapp,
183 Kan. 371, 377, 327 P.2d 1053 (1958).


       Marysville Mutual begins its argument with the policy exclusions, not the
coverage sections. It points to an exclusion for any "loss which results from order of civil
authority." The policy also included a provision that the insurer would "not pay for loss if
one or more of the . . . exclusions apply . . . regardless of other causes or events that
contribute to or aggravate the loss." In other words, if there is more than one cause of the
damage—also known as concurrent causes—and one of the causes of the loss is
excluded, the insurer doesn't pay for the loss.


       Based on these provisions, Marysville Mutual's summary-judgment motion said
the issue to be decided was "whether the damage to Plaintiffs' rental residence resulted
from the lawful, reasonable execution of orders issued by duly-authorized government
authorities." Marysville Mutual then argued that "[a] search warrant like the one executed

                                               8
[here] is a government order," thus meeting the terms of the policy exclusion. In support
of this argument, Marysville Mutual relied primarily on two cases in which similar policy
exclusions were held to apply to damages caused by the execution of a search warrant,
Kao v. Markel Ins. Co., 708 F. Supp. 2d 472 (E.D. Pa. 2010), and Alton v. Manufacturers
& Merchants Mutual Ins. Co. 416 Mass. 611, 624 N.E.2d 545 (1993). The district court
relied on those cases in granting Marysville Mutual's motion.


       We will start with the insurance company's argument about the policy exclusion
because if it applies, that may end the case, as the district court ruled. That's because the
insurance contract here also provides that if there is more than one cause contributing to a
loss (in other words, if there are concurrent causes), coverage is totally excluded if at
least one of the causes—however minor—is excluded. By way of example, Marysville
Mutual suggested in oral argument to our court that had the officers destroyed only the
lock on the front door to get into the house, while Garcia had committed vandalism to
destroy the rest of the house, there would be no coverage because part of the loss would
have been caused by an excluded event. The Allens argue that this provision about
concurrent causes should be void as against public policy. But we need not consider that
argument unless the order-of-civil-authority exclusion applies. We find that it does not.


       The problem with Marysville Mutual's argument is a simple one. The insurance-
coverage exclusion applies only if the loss "results from order of civil authority." "Results
from" at a minimum sets out a requirement of actual causation. See Burrage v. United
States, 571 U.S. ___, 134 S. Ct. 881, 887-89, 187 L. Ed. 2d 715 (2014); Anderson v.
Dillard's, Inc., 283 Kan. 432, 437, 153 P.3d 550 (2007). And there's simply no cause-
and-effect relationship between the actions officers took to get Garcia out of the house
and the issuance (or execution) of the search warrant: Officers didn't need a warrant to
enter the house, arrest Garcia, and collect evidence.




                                              9
       Officers had ample cause—and certainly the required "probable cause" needed to
arrest someone—to believe Garcia had committed attempted murder (among other
crimes) shortly before he holed up in the Reedys' home. That gave officers authority to
arrest him. K.S.A. 22-2401(c). And when officers have arrest authority, they may, subject
only to constitutional limits, use "[a]ll necessary and reasonable force . . . to effect an
entry upon any building or property" to make the arrest. K.S.A. 22-2405(3). Faced with
an armed man who had led police on a two-state chase while firing at officers and then
had sought refuge in someone else's residence, entering that house to arrest Garcia would
not have violated the Fourth Amendment's protection from unreasonable search and
seizure, either. See Warden v. Hayden, 387 U.S. 294, 298-300, 87 S. Ct. 1642, 18 L. Ed.
2d 782 (1967); State v. Dugan, 47 Kan. App. 2d 582, 592, 276 P.3d 819 (2012).
Marysville Mutual set out extensive factual support for the proposition that Garcia posed
a clear threat to the local community, including the report of its expert witness, retired
Salina police officer James Norton. Norton explained that officers had to worry about the
risk that Garcia could escape as well as the risk to officers who sought to apprehend him.
In these circumstances, officers had ample authority to enter the home to arrest Garcia.


       Nor did officers need a warrant to search the home for evidence. According to
Kenny Allen, in testimony not contradicted in our record, both the Allens and the Reedys
had offered their keys to the home to allow police to get in. And Officer Norton reports
that the Allens and the Reedys had consented to a search of the home. Consent of the
owners and renters would certainly suffice; as an uninvited trespasser fleeing from police,
Garcia had no reasonable expectation of privacy there. See United States v. Matlock, 415
U.S. 164, 169-70, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) (noting ability of joint occupant
of a residence to consent to search); Rakas v. Illinois, 439 U.S. 128, 141, 99 S. Ct. 421,
58 L. Ed. 2d 387 (1978) (noting that "one wrongfully on the premises could not move to
suppress evidence obtained as a result of searching them"); State v. Cruz, 15 Kan. App.
2d 476, 481, 809 P.2d 1233 (1991) ("Trespassers have not been granted Fourth


                                              10
Amendment rights because they do not have a reasonable expectation of privacy in the
property.").


       We do not suggest that officers acted unwisely when they sought a search warrant.
By doing so, they eliminated a motion that Garcia could have filed in the criminal case
arguing that a warrant was required and an evidentiary hearing at which the State would
have had to show factually why no warrant was required. But on the facts presented to
the district court on the summary-judgment motions in our case, it's clear that no warrant
was needed either to arrest Garcia or to search the house.


       So what took place here was that—although police could have gone in without a
warrant—they got one, anyway, as a prudent measure to protect the ability to use
whatever evidence might be collected in a criminal case against Garcia. The damage
caused to the house by the actions the officers took to subdue and arrest Garcia had
nothing to do with the search warrant. And we see no reason why the officers' prudent
actions to protect the ability to use evidence in a criminal case against Garcia should have
any impact on the coverage provided by the Allens' property-insurance carrier.


       Neither of the key cases relied upon by Marysville Mutual and the district court is
similar to our case. Neither Kao nor Alton involved the arrest of a fleeing fugitive; rather,
both cases simply involved execution of search warrants allowing officers to look for
illegal drugs. In those cases, officers caused damage to doors or objects in the premises
(such as paneling and lights) where officers apparently searched for drugs. Kao, 708 F.
Supp. 2d at 475; Alton, 416 Mass. at 612 n.1;. Thus, the damage in those cases did result
from execution of the search warrants. That's simply not the case here.


       One might suggest that the exclusion still could apply by treating the senior law-
enforcement officer as the civil authority and the acts of other officers as ones taken
under the senior officer's authority. That is not the argument Marysville Mutual has

                                             11
made. We have already noted that its summary-judgment motion was premised on the
proposition that a "search warrant like the one executed [here] is a government order."
And on appeal, Marysville Mutual has argued that "the damages occurred . . . as a direct
result of the lawful execution of a valid court order [the search warrant] by duly-
authorized law enforcement officers." If the argument had been made that verbal on-
scene orders from a law-enforcement supervisor on how best to arrest someone like
Garcia constituted an "order of civil authority," then rules for the interpretation of
insurance contracts might well have come into play. "Order of civil authority" seems to
have the sense of some formal order, likely issued in writing, not the verbal directions of
a lead law-enforcement officer at a fluid standoff with an armed suspect. And if there are
two viable interpretations for a provision in an insurance contract, we must construe the
ambiguity against the insurance company. Bussman, 298 Kan. at 707. But Marysville
Mutual has not claimed that on-scene orders from law enforcement officers constituted
the "order of civil authority" in this case. Rather, the insurance company here has
consistently argued that the order at issue was the search warrant issued by a judge.


       Since the exclusion does not apply, the district court improperly granted
Marysville Mutual's summary-judgment motion. It should have been denied.


       We turn next to the Allens' motion, which sought partial summary judgment. The
Allens asked the district court to determine that Marysville Mutual was liable under the
policy, while leaving the amount of the loss, which was contested, for trial.


       On the record presented to the district court, we cannot determine whether
Marysville Mutual is in fact liable under the policy. On appeal, the Allens focused
primarily on the legal question of whether the district court's reliance on the policy
exclusion was in error, not on the factual basis the Allens had presented to the district
court for coverage.


                                              12
       The Allens argued to the district court that the loss was covered by the vandalism
provision. As a factual basis for that claim, the Allens cited Kenny Allen's testimony that
he understood that Garcia had broken a window in the garage and then gone through the
broken window. In response, Marysville Mutual cited a statement Garcia apparently
made to officers that he had entered the house through an unlocked door. Allen didn't
explain how he came to have his understanding of these facts, so we can't say whether it's
based on personal knowledge (as needed on a summary-judgment motion, see K.S.A.
2016 Supp. 60-256[e]) or on hearsay. And Marysville Mutual's evidence on this point is
mere hearsay. So the evidence wasn't sufficient to conclude that undisputed evidence
showed that Garcia's entry to the home was facilitated by vandalism.


       If the evidence shows that Garcia committed vandalism (a covered risk) to enter
the home, then the loss would be covered because police efforts to dislodge him would
have been reasonably foreseeable under the circumstances. But that wasn't shown to be
an undisputed fact, so the district court properly denied the Allens' summary-judgment
motion.


       Before we close our opinion, we will comment on one other matter. While the
Allens made several arguments about why the policy exclusion for "a loss which results
from order of civil authority" did not apply, the Allens did not specifically focus on the
"results from" language. They argued, among other things, that there was no order from a
civil authority given ambiguities in that term and that terms in an insurance policy should
be strictly construed against the insurer. Under these circumstances, Marysville Mutual
may think we have raised some new issue on our own motion on appeal.


       We have not. The issue before us was whether the policy exclusion applied. The
key facts were undisputed, and the key language of the policy exclusion ("a loss which
results from order of civil authority") consists of only nine words. Our obligation was to
apply that provision to the undisputed facts of our case. Similar situations arise frequently

                                             13
in statutory-interpretation cases. When parties cite to the proper statute and argue about
its application to the facts of a case, our duty is to correctly interpret and apply the
statute, not to limit ourselves to the exact meanings attributed to the statute by each party.
In this case, we are interpreting a provision that is found not only in the Allens' insurance
policy but in many policies. Our duty is to correctly interpret the provision all parties
cited to and then to fairly apply it to the facts of our case.


        We reverse the district court's judgment and remand this case for further
proceedings.




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