                                        No. 119,200


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                       STEPHEN M. DETERS and DONNA K. DETERS,
                                     Appellants,

                                              v.

           NEMAHA-MARSHALL ELECTRIC COOPERATIVE ASSOCIATION, INC.,
                     and ALLIANCE INDEMNITY COMPANY,
                                Appellees.


                              SYLLABUS BY THE COURT

1.
       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 act.


2.
       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 summary judgment.


3.
       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.




                                              1
4.
        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 claim.


5.
        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.


        Appeal from Nemaha District Court; JOHN L. WEINGART, judge. Opinion filed May 24, 2019.
Affirmed.


        William C. O'Keefe, of O'Keefe Law Office, of Seneca, for appellants.


        Glenda Cafer and Terri Pemberton, of Cafer Pemberton LLC, of Topeka, for appellee Nemaha-
Marshall Electric Cooperative Association, Inc.


        Joel W. Riggs, of Larson & Blumreich, Chartered, of Topeka, for appellee Alliance Indemnity
Company.


Before LEBEN, P.J., GREEN and POWELL, JJ.


        GREEN, J.: Stephen 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.

                                                   2
       Nevertheless, we conclude that the Deters' arguments are unpersuasive. As a
result, we affirm the district court's orders of summary judgment.


Uncontroverted Facts


       The 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.


       In 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.


       While 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.


       In 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.


       Nemaha-Marshall connected the GTS to the shop and implement shed sometime
in 1994 or 1995. Nemaha-Marshall connected the GTS to the new house sometime

                                              3
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.


        On May 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.


        After 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.


        Ghattas 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.


        Alliance 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

                                              4
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 . . . ."


       The 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 their
appliances.


       On 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 policy.


       Derek 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 the circuit."


       In 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


                                             5
connections to the GTS were burned. Based on discoloration of some wires, he also
believed that there was evidence of a repair attempt.


       On September 17, 2014, at the Deters' request, Nemaha-Marshall replaced the old
GTS with a new GTS.


       On 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 breakdown policy.


       On 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 appliances.


       During discovery, the Deters hired Cris Neagele as their electrical engineer expert.
According to Neagele, Nemaha-Marshall's improper wiring of the GTS caused the

                                              6
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.


       During 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.


       Nemaha-Marshall and Alliance moved for summary judgment against the Deters.


Nemaha-Marshall's Summary Judgment Motion


       Nemaha-Marshall asserted that even if it were negligent in installing multiple
wires in a lug not designed for multiple wires, it was still entitled to summary judgment
under the 10-year statute of repose, K.S.A. 60-513(b). Nemaha-Marshall noted that it
installed the GTS in 1994, connected the GTS to the shop and implement shed sometime
in 1994 and connected the GTS to the new house sometime between 1996 and January

                                              7
2000. But the Deters did not file their petition alleging that its negligent installation of the
GTS harmed their heat pumps and appliances until March 16, 2015. Nemaha-Marshall
argued that even if it connected the GTS to the new house in January 2000, the Deters
brought their action more than 15 years after its last negligent act giving rise to the
Deters' cause of action in this case.


       The Deters responded that the district court should deny Nemaha-Marshall's
motion because Nemaha-Marshall worked on the GTS in February 2007 and in
September 2007 while in Stephen's presence. As a result, the Deters contend that K.S.A.
60-513(b)'s 10-year statute of repose would have started running in September 2007, not
January 2000. The Deters produced a Nemaha-Marshall utility meter readout summary
from February 2007 and a Nemaha-Marshall invoice for "the antenna wire," dated
September 27, 2007, in support of this contention. The Deters also relied on statements
made by Stephen in a sworn affidavit about (1) Nemaha-Marshall checking his utility
meter and finding no problems in February 2007; and (2) Nemaha-Marshall "check[ing]
connections" in September 2007. He further alleged in his affidavit that he saw Nemaha-
Marshall employees working on the GTS during the February 2007 service call. Stephen
asserted that Nemaha-Marshall came both in February and September 2007 on his request
because they had been experiencing brown outs and the heat pump was failing.


       Stephen signed the sworn affidavit following his deposition testimony and about a
month after Nemaha-Marshall moved for summary judgment.


       The district court ultimately granted Nemaha-Marshall's motion for summary
judgment:


       "In the present case, the Deters' negligence action against Nemaha Marshall is [] barred
       by the 10-year statute of repose as set forth in K.S.A. 60-513(b). According to the Deters,
       Nemaha Marshall improperly installed multiple wires or conductors in a lug inside the


                                                   8
       Ronk GTS that was not designed for multiple wires when Defendant provided and
       installed that piece of equipment at the Deters Property and that such act caused
       Plaintiffs' property loss. According to Mr. Deters' sworn testimony, he purchased the
       Ronk GTS, or disconnect switch, from Nemaha Marshall in 1994 and it was placed on
       the electric pole at the Deters Property when that pole was installed by Nemaha Marshall
       in 1994. According to Mr. Deters, Nemaha Marshall connected the electric lines running
       from the Shop or Garage and from the Implement Building or Shed on the Deters
       Property to the Ronk GTS in 1994 or January 1995. Mr. Deters also testified that Nemaha
       Marshall connected the electric lines running from the Existing House to the Ronk GTS
       sometime between 1996 and January 2000, when the Deters moved in their Existing
       House. While Nemaha Marshall's business records indicate that the Deters were charged
       for pigtails, and/or labor and a truck roll to the Deters Property in 1997, and that the
       pigtails charged to the Deters are consistent with parts that could be placed in a GTS or
       disconnect box, it has no business records that would indicate that it connected the
       electric lines running from the buildings located on the Deters Property to the Ronk GTS.
       However, for the purposes of this motion for summary judgment, even if Mr. Deters'
       testimony is assumed to be true, then Nemaha Marshall's alleged negligent act occurred
       when Nemaha Marshall allegedly connected the lines running from the Shop or Garage,
       Implement Building or Shed, and the Existing House to the lug inside the Ronk GTS, or
       disconnect box, and the latest that such act was done would have been when the Deters
       moved into their Existing House in January 2000. Plaintiffs did not file their negligence
       action against Defendant until March 16, 2015, which was more than 15 years after the
       alleged original wrongful act. Accordingly, Plaintiff's negligence action against
       Defendant in this case is barred by the 10-year statute of repose as set forth in K.S.A. 60-
       513(b)."


       Next, the Deters moved the district court to alter or amend its summary judgment
ruling. The Deters asserted that the district court should reverse its summary judgment
ruling based on Bonnette v. Triple D Auto Parts Inc., 55 Kan. App. 2d 130, 136-37, 409
P.3d 865 (2017), a premises liability case in which this court held that the statute of
repose time limits started to run the last day the landowner-defendant could have
breached its duty. 55 Kan. App. 2d at 136-37. Then, the Deters pointed to their
interactions with Nemaha-Marshall in 2007 to argue that it filed its petition within the
                                                     9
statute of repose time limits. The Deters also stated that Nemaha-Marshall "should be
estopped to claim the statute of repose."


       The district court denied this motion (1) because it maintained that its original
ruling was correct and (2) because Bonnette, as a premises liability case, did not apply.


       Alliance's Summary Judgment Motion


       Alliance argued that it was entitled to summary judgment because the Deters'
homeowner's insurance policy excluded coverage for damage to the original and
replacement heat pumps. In making this argument, Alliance relied on the same provisions
of the homeowner's insurance policy and equipment breakdown policy as it did when it
denied the Deters' claim for the replacement heat pumps.


       The Deters responded that the district court should deny Alliance's motion because
"any reasonable person would believe that [] the continuing losses between 2010 and
2013, all occurring in the same manner and symptom, were the direct physical loss from
the same cause, regardless [of] the type of policy coverage in place at the time." The
Deters also asserted that Alliance ignored that it had a duty to discover the improper
wiring within the GTS when they filed a claim for the failure of the original heat pump.


       In the end, the district court granted Alliance's motion. Regarding the original heat
pump, as well as the appliances, the district court determined that the Deters were not
entitled to coverage under their homeowner's insurance policy because of the following:
(1) the Deters never established a direct physical loss to the property as required by their
homeowner's insurance policy; and (2) the Deters' homeowner's insurance policy
excluded damage from faulty workmanship. The district court further asserted that the
evidence the Deters used to support the alleged damage to the original heat pump and
appliances was speculative. Regarding replacement heat pumps #1 and #2, the district
                                             10
court ruled that the Deters were not entitled to coverage under their homeowner's
insurance policy because "there [was] no evidence that anything ever happened to
damage the replacement heat pumps."


       Next, the Deters moved the district court to alter or amend its ruling, arguing the
district court had not sufficiently addressed if Alliance adequately investigated their
claims. The district court denied the Deters' motion, ruling that Alliance had "no legal
duty to inspect [the Deters'] property and discover problems in [the Deters'] wiring
system."


       The Deters appealed the district court's granting of Nemaha-Marshall's and
Alliance's motion for summary judgment.


Did the District Court Err by Granting Nemaha-Marshall's Motion for Summary
Judgment?


     On appeal, the Deters attempt to controvert the facts submitted by Nemaha-Marshall
as to when it last worked on the GTS (January 2000), arguing that the last time Nemaha-
Marshall worked on the GTS was in dispute because it had worked on the GTS in 2007.
As a result, they contend that this restarted the statute of repose time limitations. The
Deters conclude that the district court erred by granting Nemaha-Marshall's summary
judgment motion because "Nemaha-Marshall's adjustments to the [GTS in 2007] allowed
the restart of the statute of repose."


     Nemaha-Marshall responds that any 2007 contacts with the Deters are irrelevant
because the Deters' cause of action stems from their negligent wiring of the GTS, which
occurred no later than January 2000. Nemaha-Marshall also contends that the Deters
distort both the facts and caselaw in making their argument that the statute of repose
started to run in 2007.

                                             11
      Standard of Review


      When reviewing an order of summary judgment, we apply the following standard
of review:


              "'"Summary judgment is appropriate when the pleadings, depositions, answers to
      interrogatories, and admissions on file, together with the affidavits, show that there is no
      genuine issue as to any material fact and that the moving party is entitled to judgment as
      a matter of law. The trial court is required to resolve all facts and inferences which may
      reasonably be drawn from the evidence in favor of the party against whom the ruling is
      sought. When opposing a motion for summary judgment, an adverse party must come
      forward with evidence to establish a dispute as to a material fact. In order to preclude
      summary judgment, the facts subject to the dispute must be material to the conclusive
      issues in the case. On appeal, we apply the same rules and when we find reasonable
      minds could differ as to the conclusions drawn from the evidence, summary judgment
      must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan.
      616, 621, 413 P.3d 432 (2018).


      When the facts are uncontroverted, we exercise de novo review while considering
the district court's granting of a summary judgment motion. Martin v. Naik, 297 Kan.
241, 246, 300 P.3d 625 (2013).


      Generally, courts should grant summary judgment in negligence cases only when
the question presented involves a question of law. 297 Kan. at 245. Whether the statute of
repose applies is a question of law over which this court exercises unlimited review.
Dunn v. U.S.D. 367, 30 Kan. App. 2d 215, 218, 40 P.3d 315 (2002).




                                                   12
       Statute of Repose


       K.S.A. 60-513 provides:


               "(a) The following actions shall be brought within two years:
               ....
               (4) An action for injury to the rights of another, not arising on contract, and not
               herein enumerated.
               ....
               "(b) Except as provided in subsections (c) and (d), the causes of action listed in
       subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of
       action first causes substantial injury, or, if the fact of injury is not reasonably
       ascertainable until some time after the initial act, then the period of limitation shall not
       commence until the fact of injury becomes reasonably ascertainable to the injured party,
       but in no event shall an action be commenced more than 10 years beyond the time of the
       act giving rise to the cause of action." (Emphasis added.)


       In the past, this court has explained the function of the statute of repose:


               "A statute of repose limits the time during which a cause of action can arise and
       usually runs from the act of the alleged tortfeasor. A statute of repose abolishes the cause
       of action after the passage of time, even though the cause of action may not have yet
       accrued." Bonnette, 55 Kan. App. 2d 130, Syl. ¶ 3.


       The parties agree that the Deters' claim against Nemaha-Marshall is an action for
injury not arising under contract that falls under K.S.A. 60-513(a)(4). Moreover, for
purposes of this appeal, Nemaha-Marshall concedes (1) that it negligently installed the
Deters' GTS and (2) that its negligence led to damaging the Deters' heat pumps and
appliances. But the parties disagree on what act constituted the last act giving rise to the
Deters' cause of action.



                                                      13
       The Deters contend that this last act occurred in 2007. The Deters believe that the
utility meter readout from February 2007 and the antenna wire invoice from September
2007 established that Nemaha-Marshall conducted work on the GTS in 2007. The Deters
admit that they never physically saw Nemaha-Marshall work with the GTS wires in 2007.
Instead, they contend that Neagele's opinion that someone removed, cleaned, and
reinserted the wires in the GTS at some point, supports that the last act occurred in 2007:
"Nemaha-Marshall had then been effectively working with [the] wires and pigtails" given
Neagele's opinion that the wires had been cleaned and removed at some point. As a
result, the Deters argue that their March 2015 petition was timely because they filed it
within 10 years of 2007.


       Significantly, in making this argument, the Deters never dispute that Nemaha-
Marshall first negligently wired the GTS no later than January 2000. Indeed, even in his
disputed affidavit, Stephen states that his house was experiencing "low voltage events"
before Nemaha-Marshall's February 2007 visit. Thus, we know that the Deters were
experiencing low voltage events before Nemaha-Marshall even returned to the Deters'
house in 2007 following the initial installation of the GTS. Even so, the Deters ask this
court to start the clock for the statute of repose purposes on a date other than when
Nemaha-Marshall originally negligently wired the GTS.


       But K.S.A. 60-513(b) and our caselaw does not support this interpretation. Under
Kansas law it is the last 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: "[B]ut in
no event shall an action be commenced more than 10 years beyond the time of the act
giving rise to the cause of action." (Emphasis added.)


       In Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 698, 829 P.2d 578
(1992), for example, our Supreme Court held: "The plain language of [K.S.A. 60-513(b)]
and the applicable case law require that . . . a negligence action must be brought within

                                              14
10 years of the original wrongful act or the action is barred." (Emphasis added.) 250 Kan.
at 698. In Dobson v. Larkin Homes, Inc., 251 Kan. 50, Syl. ¶ 1, 51, 832 P.2d 345 (1992),
our Supreme Court repeated this exact holding. Moreover, the Dobson case is factually
similar to this case. The Dobsons sued their home builder and insurance carrier for the
negligent construction of their house. The district court granted the home builder's motion
for summary judgment based on the statute of repose. Our Supreme Court upheld the
district court's order because the Dobsons sued more than 10 years after the home builder
constructed the house. 251 Kan. at 53.


       As a result, Kansas caselaw underscores the point that parties must bring their
negligence action within 10 years of the original wrongful act. Despite the preceding
caselaw, the Deters cite three cases they believe support their contention that statute of
repose "restart[ed]" in 2007: Bonnette, 55 Kan. App. 2d 130; Kaminski v. United States,
218 F. Supp. 3d 1251 (D. Kan. 2016); and Dunn, 30 Kan. App. 2d 215. These cases do
not support their argument.


       In Bonnette, Bonnette tripped on an unmarked step outside Triple D's store. The
district court granted Triple D's summary judgment motion based on the statute of repose
because Triple D purchased the store some 25 years earlier. The Bonnette court reversed
the district court's summary judgment ruling, holding:


               "A landowner or proprietor has an ongoing duty to warn of nonopen and
       nonobvious dangerous conditions on the premises. Under the facts presented, the last day
       the defendant could have breached this duty was the day the plaintiff was injured.
       Accordingly, the plaintiff's claim for failure to warn was not barred by the statute of
       repose." 55 Kan. App. 2d 130, Syl. ¶ 5.


       In Dunn, a plate glass door injured two students, but the school installed the door
over three decades earlier. The school district moved for relief under the statute of repose.
This court rejected the school district's argument, determining (1) that the school
                                                    15
breached its duty to keep its students safe and (2) that the school's breach of duty was the
last wrongful act for statute of repose purposes. 30 Kan. App. 2d at 220.


       In Kaminski, Kaminski fell on ice in a United States Post Office parking lot while
trying to enter the Post Office. Kaminski sued the United States for negligence. The
United States moved for summary judgment, arguing that the statute of repose barred
Kaminski's suit because the downspout that caused the accumulation of ice Kaminski fell
on had been in the same place for years. The Kaminski court rejected the United States'
statute of repose argument because Kaminski presented reasonable evidence that the
drainage conditions in the parking lot had not existed in its current manner for the last 10
years. 218 F. Supp. 3d at 1266.


       Unlike this case, Bonnette, Dunn, and Kaminski are premises liability cases. The
caselaw on regular negligence actions differ from the caselaw on premises liability
negligence actions because in premises liability cases, the landowner or proprietor has an
ongoing duty to warn people of dangers on their land. The landowner or proprietor's
ongoing duty to warn people of dangers on their land extends what date a cause of action
accrues because it is the breach of the duty that creates the cause of action. But the
premises liability circumstances do not exist here. Nemaha-Marshall is not a landowner
that has a duty to warn the Deters of some danger on its property. Simply put, the
premises liability cases the Deters rely on are distinguishable from their case.


       Moreover, the Deters misconstrue Kaminski. The Deters contend that their case is
much like Kaminski because a genuine issue exists about when Nemaha-Marshall altered
the wires in the GTS. The Deters contend that their evidence that Nemaha-Marshall
altered the wires in 2007 is comparable to Kaminski's reasonable evidence that the Post
Office's parking lot drainage conditions had not existed in the same manner for the past
10 years. The Deters' argument is problematic for a couple of reasons. For starters, as


                                             16
explained in the next section, their evidence that Nemaha-Marshall altered the wires in
the GTS in 2007 is unpersuasive.


       More importantly, the Deters' argument ignores that the rule for determining when
the statute of repose begins to run is when the defendant completes the last original
wrongful act. Even under the premises liability cases, this is the rule. See Bonnette, 55
Kan. App. 2d 130, Syl. ¶ 4 (holding that "[t]he 10-year period of the statute of repose
found in K.S.A. 50-513[b] begins to run when the defendant completes the last act giving
rise to the cause of action"). Here, both parties agree that Nemaha-Marshall first
negligently wired the GTS no later than January 2000.


       In summary, the uncontroverted facts here establish that Nemaha-Marshall
connected the GTS to the new house sometime between 1996 and 2000. The heat pumps
and appliances all received electricity from the new house. Nemaha-Marshall charged the
Deters for work related to the GTS on November 7, 1997. Nemaha-Marshall never
charged the Deters for work related to the GTS following 1997. In their petition, the
Deters allege that Nemaha-Marshall negligently wired the GTS when it first installed the
GTS at their new house. During his deposition, Stephen testified that they experienced
low voltage problems before Nemaha-Marshall's February 2007 service call. In other
words, the Deters experienced low voltage problems before the date that Nemaha-
Marshall employees allegedly regained access to the GTS. Moreover, during his
deposition, Stephen also testified that he could not think of any time Nemaha-Marshall
worked on the GTS after Nemaha-Marshall installed the GTS.


       Consequently, the uncontroverted facts establish that the original act giving rise to
the Deters' cause of action—Nemaha-Marshall's negligent wiring of the Deters' GTS—
occurred no later than January 2000. This means that the Deters filed their March 2015
petition against Nemaha-Marshall about five years after the statute of repose had expired.



                                             17
       2007 Contacts


       In addition, we note that the Deters' contention that Nemaha-Marshall worked on
the GTS in 2007 is unsupported by the record on appeal.


       The Deters' argument hinges on their belief that premises liability caselaw applied
to their case. Under this belief, the Deters argued (1) that they had evidence that Nemaha-
Marshall serviced the GTS in 2007 and (2) that the last act giving rise to the cause of
action in their case was in 2007. To review, after Nemaha-Marshall moved for summary
judgment, the Deters produced the February 2007 utility meter readout, September 2007
antenna wire invoice, and Stephen's sworn affidavit. Now, in their appellate brief, the
Deters allege that the preceding documents, along with Neagele's opinion about cleaning
the wires, show that Nemaha-Marshall worked on the GTS in 2007. Yet, this inference is
based on supposition and conjecture.


       To begin with, the Deters' utility meter readout is simply a printout of the Deters'
utility meter readings from May 2005 to July 2007. According to a Nemaha-Marshall
lineman supervisor, the Deters' utility meter and GTS are two distinct devices. Nemaha-
Marshall could service one without servicing the other. Additionally, the Deters' expert,
Neagele, explained that "[a]ny upstream voltage monitoring device, such as the utility
electric meter, might not detect [a low voltage] issue."


       The antenna wire invoice merely stated that Nemaha-Marshall charged the Deters
for a quarter-hour's work and an antenna wire on September 27, 2007. Nothing on the
invoice related to work on the GTS. Furthermore, in his sworn affidavit, Stephen
admitted that the antenna wire was for his cable, not for his GTS.


       As for his sworn affidavit, Stephen stated: (1) that he watched Nemaha-Marshall
employees work on the GTS for "about 10 minutes" from his window in February 2007;

                                             18
(2) that Nemaha-Marshall employees checked the connections in September 2007, which
he understood to mean they worked on the GTS. At his deposition, Stephen testified that
he had Nemaha-Marshall electrical employees out at some point in the mid-2000s to
address blinking lights. Nevertheless, he also testified that he had no memory of "a
service call out to [his] house" where Nemaha-Marshall electrical workers would have
worked on the GTS.


       "It is well-established that '[a] party opposing summary judgment may not rest
merely on allegations, but must set forth specific facts to support its position.' [Citation
omitted.]" Seitz v. Lawrence Bank, 36 Kan. App. 2d 283, 289, 138 P.3d 388 (2006). "'The
law is clear that "an inference cannot be based upon evidence which is too uncertain or
speculative or which raises merely a conjecture or possibility." [Citation omitted.]'" 36
Kan. App. 2d at 290. Moreover, "an affidavit cannot be used to controvert earlier
deposition testimony for the purpose of avoiding summary judgment." Smith v. Kansas
Orthopaedic Center, 49 Kan. App. 2d 812, 818, 316 P.3d 790 (2013). The Tenth Circuit
of the United States Court of Appeals has explained that when challenging a summary
judgment motion, "the nonmovant's affidavits must be based upon personal knowledge
and set forth facts that would be admissible in evidence; conclusory and self-serving
affidavits are not sufficient." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). Our
Supreme Court has explained that the nonmovant's allegations cannot be "[f]limsy or
transparent." In re Estate of Mullin, 201 Kan. 756, 761, 443 P.2d 331 (1968).


       We determine that Stephen's affidavit testimony about witnessing Nemaha-
Marshall employees working on the GTS, or communicating with Nemaha-Marshall
employees about working on the GTS in 2007 was insufficient to establish a genuine
issue of material fact. Furthermore, because the statements are flimsy and transparent,
they "are insufficient to sustain a justiciable controversy requiring the submission thereof
to the trier of facts." 201 Kan. at 761.


                                              19
       Finally, the Deters' assertion that Neagele's opinion that at some point somebody
removed, cleaned, and then rewired the GTS does not establish that Nemaha-Marshall did
this. The GTS was on the Deters' property for about 15 years. Moreover, as mentioned
earlier, although Nemaha-Marshall installed the GTS, the GTS belonged to the Deters.
To find that the 2007 utility meter readout and antenna wire invoice relate to the GTS box
through Neagele's contention that somebody messed with the GTS wires at some point,
this court would have to speculate. As a result, although Nemaha-Marshall may have
interacted with the Deters in 2007 when it provided them the utility meter readout and
antenna wire services, those services do not establish that Nemaha-Marshall either (1)
serviced the GTS or (2) disturbed the GTS without permission. Thus, we conclude that
the Deters have failed to come forward with evidence showing a genuine issue of
material fact.


       Improper Arguments


       Finally, the Deters raise two arguments why the district court erred in granting
Nemaha-Marshall's summary judgment motion that are not properly before this court.


       First, the Deters seemingly complain that Nemaha-Marshall cannot seek tariff
protections. Below, the Deters raised the tariff issue in their pretrial questionnaire.
Although the Deters do not acknowledge this in their brief, the district court did not reach
the tariff issue because it granted Nemaha-Marshall's summary judgment motion based
on the statute of repose. It is a well-known rule that this court does not decide moot
issues. Stano v. Pryor, 52 Kan. App. 2d 679, 682-83, 372 P.3d 427 (2016). Here, whether
Nemaha-Marshall was entitled to tariff protections is moot because Nemaha-Marshall is
entitled to summary judgment under the statute of repose.


     Second, the Deters argue that the doctrine of equitable estoppel requires this court to
reverse the district court's summary judgment ruling. Below, the Deters included one

                                              20
sentence on estoppel in their motion to alter or amend the district court's summary
judgment ruling: "There is reason at this point that Defendant, Nemaha Marshall, by
Defendant's own actions should be estopped to claim the statute of repose." When the
district court denied this motion, it did not address the Deters' reference to equitable
estoppel. Perhaps, the Deters' failure to object to the district court's order precludes this
court's review. See McIntyre v. State, 305 Kan. 616, 618, 385 P.3d 930 (2016) (holding
that parties must object to inadequate findings of fact and conclusions of law to preserve
their arguments for appeal).


     Regardless, the Deters' appellate argument consists of one paragraph in which they
assert that this court should equitably estop Nemaha-Marshall from pleading the statute
of repose because Nemaha-Marshall conceded that it negligently wired the GTS. They
cite no caselaw to support their contention that courts should equitably estop parties who
concede negligence from using the statute of repose as an affirmative defense. This court
has consistently held that an appellant abandons a point raised incidentally in a brief.
Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017). Moreover, this court has held
that the failure to support a point with authority, or explain why that point is sound
despite a lack of supporting authority constitutes abandoning the issue. University of Kan.
Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602
(2015). Here, we determine that the Deters have abandoned their argument by including
no analysis in their brief.


Did the District Court Err by Granting Alliance's Motion for Summary Judgment?


     Next, the Deters argue that the district court erred when it granted Alliance's motion
for summary judgment. In their brief, the Deters allege that they have two claims against
Alliance. First, they allege that their homeowner's insurance policy covers the low
voltage damage, meaning Alliance wrongly denied both their claims for damages on the
original heat pump and the replacement heat pumps. Second, they contend that Alliance

                                              21
had a legal duty to inspect their property and discover that the source of their electrical
problems was the wiring within the GTS. The Deters argue that Alliance did not
investigate their claims in good faith.


     Alliance responds that its homeowner's insurance policy with the Deters, as well as
the equipment breakdown policy, did not cover low voltage events. Moreover, Alliance
argues that it adequately investigated the Deters' claims.


       Homeowner's Insurance Policy


       To begin our analysis, we note that the Deters have abandoned any argument that
their homeowner's insurance policy with Alliance covered their heat pumps damaged by
low voltage. In their brief, the Deters have included no analysis on their homeowner's
insurance policy. Instead, they include a single sentence in which they assert that their
homeowner's insurance policy provided coverage. The remainder of their brief focuses on
the bad-faith investigation argument. Furthermore, the Deters did not address whether
their heat pumps and appliances were fixtures annexed to their realty or merely personal
property. This analysis was important because the Deters' homeowner's insurance policy
contained different provisions depending on whether the insureds were claiming that the
event damaged their dwelling or their personal property. The Deters also never address
that when they filed their claims with Alliance, they only requested damages for their
original heat pump and for the replacement heat pumps. Now, they seemingly assert that
they are entitled to damages from Alliance for their appliances as well.


       Again, this court considers points raised incidentally in a brief abandoned. Russell,
306 Kan. at 1089. Here, by providing no analysis about how their homeowner's insurance
policy covered low voltage events, we determine that the Deters have abandoned this
argument.


                                             22
       Regardless, assuming for the sake of argument that the heat pumps and appliances
were fixtures attached to the Deters' realty, we note that the district court correctly
determined that the Deters' homeowner's insurance policy with Alliance covered no
damage caused by low voltage events. Section 1—Exclusions (B) of the Deters'
homeowner's insurance policy provides:


       "We do not insure for loss to property described in Coverages A [Dwelling] caused by
       any of the following . . . :
       ....
       3. Faulty, inadequate or defective:
                ....
                b. Design, specifications, workmanship, repair, construction, renovation,
                remodeling, grading, compaction;
                c. Materials used in repair, construction, renovation or remodeling; or
                d. Maintenance;
       of part or all of any property whether on or off the 'residence premises.'"


       Here, the Deters' entire case hinges on Nemaha-Marshall's defective workmanship
when wiring the GTS. As a result, the district court properly found that the homeowner's
insurance policy covered no property loss stemming from Nemaha-Marshall's defective
workmanship under this provision of the Deters' homeowner's insurance policy.


       Assuming arguendo that the heat pumps and appliances constituted personal
property, we point out the provision of the Deters' homeowner's insurance policy entitled
Section 1—Perils Insured Against (B): Coverage—Personal Property lists what direct
physical losses it covers. Losses to electrical wiring caused by a low voltage event are not
included in the perils that are covered. Indeed, this provision specifically excluded
coverage to the circuitry of appliances and fixtures damaged by "sudden and accidental
damage from artificially generated electrical current." Thus, under the Deters'
homeowner's insurance policy, no coverage existed for electrical events (1) that the utility


                                                    23
caused, i.e., that is artificially generated electricity, and (2) that damaged only fixtures
and appliances. For this reason, the Deters' homeowner's insurance policy does not cover
losses caused by the low voltage events artificially generated by Nemaha-Marshall's
negligent wiring if the Deters' heat pumps and appliances constituted personal property.


       Last, throughout this case, the Deters have used the term "low voltage events" and
"brown outs" interchangeably. For instance, in his affidavit, Stephen asserted that in
"January and February 2007 [they] experienced 'low voltage events,' more [commonly]
known as 'brown outs' . . . ." The Deters' equipment breakdown policy specifically
excludes coverage for "loss, damage, or expense caused by or resulting from: [ ]
electrical power surge or brown out." Because the Deters admittedly experienced brown
outs because of Nemaha-Marshall's wiring of the GTS, they were not entitled to coverage
under their equipment breakdown policy.


       As a result, even if we were to assume that the Deters had not abandoned their
argument on appeal, it is readily apparent that the Deters' homeowner's insurance policy
did not cover the damage caused by the low voltage events.


       Bad-Faith Investigation


       The Deters frame this issue as follows: "If the insurance company is informed of
the problem from the start and decides to investigate, does the insurance company have
an obligation to look into the customer's complaint?" Essentially, the Deters assert that
because they originally told Alliance that they believed low voltage had caused the
damage to their heat pumps, Alliance had a duty to investigate if low voltage caused the
damage to their heat pumps.


       The Deters concede that for their claim on the original heat pump, they switched
theories on what caused the damage mid-claim; at first, they asserted it was low voltage

                                              24
from wires on the heat pump, then they asserted that lightning caused the damage to the
heat pump. But the Deters believe that their assertion that lightning caused the damage to
the original heat pump should not matter since they had mentioned low voltage before.
The mere mentioning of low voltage created Alliance's duty to investigate low voltage.
The Deters go on to attack the findings of Alliance's claim investigators—Bitar and Geer.
Nevertheless, the Deters' argument is unpersuasive.


       The Deters are correct that insurers must make a good-faith investigation of a
claim under Kansas law:


       "[A]n insurance company is not required to pay a claim when there is a good-faith legal
       or factual reason to deny a claim, but at the same time, the insurer has a duty to make a
       good-faith investigation of the facts before refusing to pay. [Citations omitted.] '"Good
       faith on the part of the insurer implies honesty, fair dealing and adequate information."
       [Citation omitted.]'" Foster v. Stonebridge Life Ins. Co., 50 Kan. App. 2d 1, 28-29, 327
       P.3d 1014 (2012).


       While it is true that Neagele concluded that low voltage may have caused the
damage to the original heat pump, Neagele made this opinion (1) after being told there
was a low voltage problem and (2) after being shown photographs of the wiring within
the GTS. When considering whether an insurer acted in good faith while investigating a
claim, we note that the insurer has a duty to make an investigation of the facts and
circumstances before refusing to pay the claim. Here, when Bitar conducted his
examination of the original heat pump compressor, the Deters were still alleging that
lightning damaged the heat pump. Because the Deters were alleging lightning damage, it
is unclear how Bitar had a duty to investigate low voltage. Moreover, Neagele—the
Deters' own expert—determined that Bitar's conclusion that the original heat pump
suffered a prolonged electrical failure because of low refrigerant was reasonable.




                                                   25
       Because Neagele believed that it was a reasonable conclusion that the original heat
pump failed because of low refrigerant, we cannot conclude that Alliance conducted a
bad-faith investigation into the original heat pump claim. Clearly, a reasonable factual
basis existed for Alliance to deny the Deters' original claim.


       Next, when Geer examined replacement heat pump #2, he observed that
replacement heat pump #2 had no damage. An insurance company cannot be expected to
find evidence of damage that does not exist. In any event, Geer's report explicitly stated
that there were "no indications of low voltage." In other words, despite the Deters'
contention to the contrary, Geer investigated the Deters' assertion that replacement heat
pump #2 was not functioning because of low voltage. Furthermore, replacement heat
pump #2 continues to work without problems. This means that Geer's analysis continues
to be sound—that replacement heat pump #2 did not experience low voltage damage.


       Although Alliance ultimately denied the Deters' claim for damages related to
replacement heat pumps #1 and #2, as considered earlier, Alliance properly denied the
Deters' claim because their homeowner's insurance policy and equipment breakdown
policy did not cover damage from low voltage events. Again, to investigate with good
faith, the insurer needs to act with honesty, fair dealing, and information. Foster, 50 Kan.
App. 2d at 28-29. When Alliance denied the Deters' claim on the original heat pump, it
acted on the information available then. When Alliance denied the Deters' claim on the
replacements heat pumps, it acted on the information available then, which included the
knowledge of Nemaha-Marshall's negligent wiring.


       The Deters' argument ignores that Alliance's duty to investigate exists only for the
purpose of resolving the claim. Here, Alliance had legitimate factual reasons based in the
Deters' homeowner's insurance policy for resolving the Deters' claims. As a result, when
Alliance denied the Deters' claim, we conclude that Alliance did so in good faith.


                                             26
       Although the district court did not use this reasoning when rejecting the Deters'
argument, this court can uphold the district court's decision when it reaches the correct
result regardless of the reasoning the district court uses. See Gannon v. State, 302 Kan.
739, 744, 357 P.3d 873 (2015). For the preceding reasons, we affirm the district court's
order of summary judgment in favor of Alliance.


       Affirmed.




                                             27
