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307 Nebraska Reports

KAISER v. ALLSTATE INDEMNITY CO.

Cite as 307 Neb. 562

Jeremy Kaiser, appellant, v. Allstate 

Indemnity Company, appellee.

___ N.W.2d ___

Filed October 23, 2020. No. S-19-858.

1. Insurance: Contracts. Interpretation of an insurance policy is a question of law.

2. Judgments: Appeal and Error. In reviewing questions of law, an 

appellate court must reach its own conclusions independent of the lower 

court’s conclusions.

3. Summary Judgment: Appeal and Error. An appellate court reviews a 

district court’s grant of summary judgment de novo, viewing the record 

in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.

4. Insurance: Contracts: Presumptions: Proof. In assessing which party 

in an insurance dispute bears the burden of proving or disproving coverage, a court must first determine whether the insurance policy presumptively extends coverage to all, or only to specific, perils.

5. Insurance: Contracts. A specific perils policy covers limited risks and, 

by implication, excludes all other risks.

6. ____: ____. An all perils policy impliedly covers all risks except those 

expressly addressed in the policy’s exclusion paragraphs.

7. Insurance: Contracts: Presumptions: Proof. Under a specific perils 

policy, the insured carries the initial burden of proving that a provision in the insurance policy requires the insurer to provide coverage 

for a specific type of loss. But that initial burden is presumed met in an 

all perils policy, provided the insured can show that covered property 

was damaged.

8. Insurance: Contracts: Proof. Once the insured’s initial burden of proving coverage is met, the insurer bears the burden of proving the applicability of an exclusion under the policy as an affirmative defense.

9. Insurance: Contracts: Appeal and Error. An insurance policy is a 

contract, and an appellate court construes it like any other contract, 

according to the meaning of the terms that the parties have used.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/15/2021 01:08 AM CST
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KAISER v. ALLSTATE INDEMNITY CO.

Cite as 307 Neb. 562

10. ____: ____: ____. An appellate court gives terms in an insurance policy 

that are clear their plain and ordinary meaning as a reasonable person in 

the insured’s position would understand them.

11. Insurance: Contracts. Terms in an insurance policy that are reasonably 

susceptible to multiple conflicting meanings are ambiguous and construed in favor of the insured.

12. Words and Phrases. Contamination is the act of contaminating, the 

condition of being contaminated, defilement, pollution, or infection.

13. Insurance: Contracts. Simply because multiple provisions in an insurance policy individually exclude coverage for a single peril does not 

mean that those terms are necessarily ambiguous.

14. ____: ____. Whether terms in an insurance policy are individually 

ambiguous will depend on the susceptibility of their language to multiple 

reasonable meanings, not on whether they overlap with each other.

15. Insurance: Contracts: Proof. If the insurer meets its burden of proving the applicability of any exclusions under the policy as affirmative 

defenses, then the burden returns to the insured to prove the applicability of an exception to any exclusions.

16. Words and Phrases. Because the phrase “sudden and accidental” is 

expressed in the conjunctive, it requires both sudden and accidental to 

be shown.

17. Insurance: Courts. When an insured’s claim to his or her insurer is for 

one whole property loss, courts must frame the property loss accordingly, and not by its component parts.

18. Time: Words and Phrases. An event occurring over a period of time is 

not sudden.

19. Summary Judgment. Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no 

genuine issue as to any material fact or as to the ultimate inferences that 

may be drawn from those facts and that the moving party is entitled to 

judgment as a matter of law.

20. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from those facts and 

that the moving party is entitled to judgment as a matter of law.

Appeal from the District Court for Douglas County: Leigh 

Ann Retelsdorf, Judge. Affirmed.

Matthew P. Saathoff and Donald E. Loudner III, of Saathoff 

Law Group, P.C., L.L.O., for appellant.
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KAISER v. ALLSTATE INDEMNITY CO.

Cite as 307 Neb. 562

Leslie S. Stryker Viehman and Brian D. Nolan, of Nolan, 

Olson & Stryker, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

Jeremy Kaiser filed an insurance claim alleging that his 

tenants damaged his rental house by producing or using methamphetamine indoors. Allstate Indemnity Company (Allstate) 

denied the claim. The district court granted summary judgment 

for Allstate, holding that the loss was excluded from coverage 

under Allstate’s insurance policy with Kaiser. Kaiser appeals.

We moved Kaiser’s appeal to our docket to decide whether 

property loss from his tenants’ producing or using methamphetamine indoors was a covered peril. We conclude that it is not 

and affirm the decision of the district court.

II. FACTUAL BACKGROUND

Kaiser owned real property in Omaha, Nebraska, that he 

maintained as a rental house. He carried a rental insurance 

policy for the property through Allstate. According to the 

policy, Allstate agreed to cover most direct physical loss to 

the property.

However, as relevant here, paragraphs 12, 13(e) and (f), 18, 

and 19(d) excluded from coverage any property loss “consisting of or caused by” the following perils:

12. Any type of vapors, fumes, acids, toxic chemicals, 

toxic gasses, toxic liquids, toxic solids, waste materials, 

[i]rritants, contaminants, or pollutants, [i]ncluding, but 

not limited to:

a) lead in any form;

b) asbestos in any form;

c) radon in any form; or
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Cite as 307 Neb. 562

d) oil, fuel oil, kerosene, liquid propane or gasoline 

intended for, or from, a storage tank located at the residence premises.

13. . . .

. . . .

e) Contamination, including, but not limited to, the 

presence of toxic, noxious, or hazardous gasses, chemicals, liquids, solids or other substances at the residence 

premises or in the air, land or water serving the residence premises;

f) Smog, smoke from the manufacturing of any controlled substance, agricultural smudging and industrial 

operations[.]

. . . .

18. Vandalism. However, we do cover sudden and accidental direct physical loss caused by fire resulting from 

vandalism unless your dwelling has been vacant or unoccupied for more than 90 consecutive days immediately 

prior to the vandalism.

19. Any act of a tenant, or guests of a tenant, unless the 

act results in sudden and accidental direct physical loss 

caused by:

. . . .

d) [S]moke. However, we do not cover loss caused by 

smoke from the manufacturing of controlled substances, 

agricultural smudging or industrial operations[.]

(Emphasis omitted.) The Allstate insurance policy further provided that when property loss resulted from multiple causes, 

the loss was wholly excluded from coverage if “the predominant cause(s) of loss is (are) excluded.”

Kaiser did not make regular inspections of his rental house. 

Beginning in February 2013, he received reports from persons 

living near the property that the house was being used for drugrelated activity.

After his tenants voluntarily surrendered the property on 

May 1, 2013, Kaiser inspected the house and found evidence 
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Cite as 307 Neb. 562

of methamphetamine. Kaiser retained Absolute Bio Recovery 

Service to conduct preliminary tests of the house. Absolute 

Bio Recovery Service discovered methamphetamine vapor 

and residue throughout the house and recommended that the 

house be decontaminated before it could be safely rented to 

new tenants.

On May 7, 2013, Kaiser submitted a claim to Allstate for the 

cleanup costs. On May 8, Allstate denied the claim.

Despite the denial of coverage, Kaiser worked to remediate and decontaminate the house throughout May 2013. He 

removed flooring, HVAC equipment, and light fixtures from 

the house, all of which had absorbed methamphetamine vapor 

and residue. He also hired Meth Lab Cleanup LLC, a company that specialized in restorations of this kind. On May 26, 

Meth Lab Cleanup certified that the house was again fit for 

human habitation.

On February 11, 2014, Kaiser filed a complaint against 

Allstate in the district court for Douglas County. Kaiser asserted 

two claims: breach of contract and bad faith. According to 

Kaiser, “[a]t sometime [sic] after April 15, 2012, the Tenants 

converted the Property into a methamphetamine lab and started 

producing methamphetamine.” According to the complaint, 

this claim should have been covered by Allstate as “vandalism 

and malicious mischief,” but it was wrongfully denied. Kaiser 

sought $38,361.80 for remediation costs, lost rent, and compensation from serving as the general contractor overseeing the 

house’s restoration. Allstate timely filed an answer disputing 

Kaiser’s claims.

After some discovery, the parties filed cross-motions for 

summary judgment. Stating that it lacked “competent evidence 

of how the damage was actually caused,” the district court 

entered an order denying both motions.

Kaiser filed an amended complaint alleging that he lacked 

sufficient knowledge as to whether the property loss was 

caused by his tenants’ using or manufacturing methamphetamine. Allstate filed an amended answer in which it specifically 
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KAISER v. ALLSTATE INDEMNITY CO.

Cite as 307 Neb. 562

cited, as affirmative defenses, exclusions in paragraphs 9, 12, 

13(e) and (f), 18, and 19(d) of its insurance policy. Kaiser and 

Allstate both filed renewed cross-motions for summary judgment. Kaiser also filed a motion to file a second amended 

complaint, which the district court denied.

On January 26, 2017, the district court issued an order 

granting Allstate’s motion for summary judgment and denying Kaiser’s competing motion. The district court found that 

Kaiser’s tenants had manufactured methamphetamine in the 

house. Additionally, based on an affidavit from Allstate’s 

expert, a professor of chemistry at the University of Nebraska 

at Omaha, the district court found that methamphetamine damaged Kaiser’s property in two ways: first, “methamphetamine 

vapor is a toxic chemical, gas or liquid, depending upon the 

assumed physical state at a particular point in time,” and second, “[m]ethamphetamine residue is a contaminant, chemical 

residue and pollutant.” Accordingly, the district court agreed 

with Allstate that Kaiser’s property loss was excluded from 

coverage under paragraphs 12 and 13(e) and (f) of Allstate’s 

insurance policy. The district court also found that Kaiser’s 

property loss was not covered under paragraph 18 or paragraph 19(d).

Kaiser appealed the district court’s summary judgment. This 

court summarily dismissed the appeal pursuant to Neb. Ct. R. 

App. P. § 2-107(A)(2) (rev. 2017) because we could not find 

that the district court had entered a final, appealable order. On 

remand, the district court issued an order clarifying that its 

previous order was intended to dismiss both Kaiser’s contract 

cause of action and his bad faith cause of action.

Kaiser then filed the current notice of appeal.

III. ASSIGNMENTS OF ERROR

Kaiser assigns, consolidated and restated, that the district 

court erred in finding that (1) Kaiser’s property loss was 

excluded from coverage under paragraphs 12 and 13(e) and 

(f) of the Allstate insurance policy, (2) Kaiser’s property loss 
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KAISER v. ALLSTATE INDEMNITY CO.

Cite as 307 Neb. 562

was not covered under paragraph 18 or paragraph 19(d) of 

the Allstate insurance policy, and (3) summary judgment was 

improper because a genuine issue of material fact remained 

as to whether Kaiser’s property loss was caused by methamphetamine production or use.

IV. STANDARD OF REVIEW

[1,2] Interpretation of an insurance policy is a question of 

law. 1 In reviewing questions of law, an appellate court must 

reach its own conclusions independent of the lower court’s 

conclusions. 2

[3] An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. 3

V. ANALYSIS

1. Allstate Insurance Policy

The issue presented on appeal is whether the district court 

erred in finding that under the Allstate insurance policy, 

Kaiser’s property loss was excluded from coverage.

[4-6] In assessing which party in an insurance dispute bears 

the burden of proving or disproving coverage, a court must 

first determine whether the insurance policy presumptively 

extends coverage to all, or only to specific, perils. 4 A specific 

perils policy covers limited risks and, by implication, excludes 

all other risks. 5 In contrast, an all perils policy impliedly 

1 See Henn v. American Family Mut. Ins. Co., 295 Neb. 859, 894 N.W.2d 

179 (2017).

2 See In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).

3 Russell v. Franklin County, 306 Neb. 546, 946 N.W.2d 648 (2020).

4 See Poulton v. State Farm Fire & Cas. Cos., 267 Neb. 569, 675 N.W.2d 

665 (2004) (citing 7 Lee R. Russ & Thomas F. Segalla, Couch on 

Insurance 3d § 101:7 (1997), and Annot., 30 A.L.R. 170 (1995)).

5 See Poulton, supra note 4.
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covers all risks except those expressly addressed in the policy’s 

exclusion paragraphs. 6

[7,8] Under a specific perils policy, the insured carries the 

initial burden of proving that a provision in the insurance 

policy requires the insurer to provide coverage for a specific 

type of loss. 7 But that initial burden is presumed met in an 

all perils policy, provided the insured can show that covered 

property was damaged. 8 Once the initial burden of proving 

coverage is met, the insurer bears the burden of proving the 

applicability of an exclusion under the policy as an affirmative defense. 9

Here, Kaiser characterizes his Allstate policy as an all perils policy. Allstate did not dispute that characterization in its 

brief or at oral argument. Thus, assuming that Kaiser’s characterization is accurate, Kaiser met his initial burden when 

the parties stipulated that at the relevant time, the damaged 

property was covered under the Allstate insurance policy. It 

is, in turn, Allstate’s burden to prove that the property loss 

from Kaiser’s tenants’ producing or using methamphetamine 

in the house was specifically excluded from coverage by 

its policy.

(a) Paragraphs 12 and 13(e) and (f)

The district court found that Allstate met its burden of proof 

by showing that Kaiser’s property loss was caused by the presence of “methamphetamine vapor” and “[m]ethamphetamine 

residue” in the house. According to the district court, this 

meant that the property loss was excluded under paragraphs 

6 See id.

7 See id.

8 See Gage County v. Employers Mut. Cas. Co., 304 Neb. 926, 937 N.W.2d 

863 (2020).

9 See id.
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12 and 13(e) and (f) of the Allstate insurance policy because 

methamphetamine vapor is “a toxic chemical, gas or liquid, 

depending upon the assumed physical state at a particular point 

in time,” and methamphetamine residue is “a contaminant, 

chemical residue and pollutant.” Kaiser assigns first that this 

characterization was in error because the terms in paragraphs 

12 and 13(e) and (f) are ambiguous.

[9-11] An insurance policy is a contract, and an appellate 

court construes it like any other contract, according to the 

meaning of the terms that the parties have used. 10 An appellate court gives terms in an insurance policy that are clear 

their plain and ordinary meaning as a reasonable person in the 

insured’s position would understand them. 11 But terms that are 

reasonably susceptible to multiple conflicting meanings are 

ambiguous and construed in favor of the insured. 12

We disagree with Kaiser that the terms in paragraphs 12 

and 13(e) and (f) are ambiguous. Paragraph 12 specifically 

excludes coverage for any property loss caused by or consisting of “vapors, fumes, acids, toxic chemicals, toxic gasses, 

toxic liquids, toxic solids, waste materials, [i]rritants, contaminants, or pollutants.” And paragraph 13(e) and (f) uses similar 

language, excluding coverage for any property loss caused by 

or consisting of “[s]mog” or “[c]ontamination, including, but 

not limited to, the presence of toxic, noxious, or hazardous 

gasses, chemicals, liquids, solids or other substances at the 

residence premises . . . .” (Emphasis omitted.)

[12] Although they are not defined in the insurance policy itself, the relevant terms are contained in standard dictionaries. Contamination is “[t]he action of contaminating, 

or condition of being contaminated; defilement, pollution, 

10 Van Kleek v. Farmers Ins. Exch., 289 Neb. 730, 857 N.W.2d 297 (2014).

11 Id.

12 See id.
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infection.” 13 The terms in paragraphs 12 and 13(f) are also 

defined. 14

Throughout his brief, Kaiser himself repeatedly referred to 

the property damage as “contamination” and his restoration 

efforts as “decontamination.” In corresponding with Kaiser, 

the contractors he hired to restore the house also identified 

the damage they encountered as contamination. In its work 

plan for the house, Absolute Bio Recovery Service described 

using a variety of techniques “to address contamination,” 

and in its “Final Report Methamphetamine Decontamination,” 

Meth Lab Cleanup identified the scope of its work as involving a “decontamination and post remedial assessment.” At the 

time, Kaiser did not object to these characterizations of the 

property loss as contamination. This evidence goes to show 

that Kaiser, as the insured, reasonably interpreted the term 

“contamination” as encompassing the type of property damage 

he experienced.

[13,14] As Kaiser now suggests, definitions of the terms in 

paragraphs 12 and 13(e) and (f) indicate that several of these 

terms are synonymous. But his conclusion that the terms are 

13 “Contamination,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/40057 (last visited Oct. 10, 2020).

14 See, e.g., “Vapor,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/221469 (last visited Oct. 10, 2020); “Fume,” Oxford English 

Dictionary Online, http://www.oed.com/view/Entry/75429 (last visited 

Oct. 10, 2020); “Acid,” Oxford English Dictionary Online, http://www.

oed.com/view/Entry/1547 (last visited Oct. 10, 2020); “Toxic,” Oxford 

English Dictionary Online, http://www.oed.com/view/Entry/204104 (last 

visited Oct. 10, 2020); “Waste,” Oxford English Dictionary Online, http://

www.oed.com/view/Entry/226027 (last visited Oct. 10, 2020); “Irritant,” 

Oxford English Dictionary Online, http://www.oed.com/view/Entry/99857 

(last visited Oct. 10, 2020); “Contaminant,” Oxford English Dictionary 

Online, http://www.oed.com/view/Entry/40053 (last visited Oct. 10, 2020); 

“Pollutant,” Oxford English Dictionary Online, http://www.oed.com/

view/Entry/146987 (last visited Oct. 10, 2020); “Smog,” Oxford English 

Dictionary Online, http://www.oed.com/view/Entry/182692 (last visited 

Oct. 10, 2020).
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inherently ambiguous does not follow. Simply because multiple provisions in an insurance policy individually exclude 

coverage for a single peril does not mean that those terms 

are necessarily ambiguous. 15 Instead, a well-written insurance 

policy will likely have terms that overlap, which might support the denial of coverage on several grounds in an appropriate case. 16 Whether those terms are individually ambiguous 

will depend on the susceptibility of their language to multiple 

reasonable meanings, not on whether the terms overlap with 

each other. 17 Kaiser has failed to specifically identify any second meanings to which the terms are reasonably susceptible 

in context.

Accordingly, Kaiser’s argument that the terms in paragraphs 

12 and 13(e) and (f) are ambiguous and so should be construed 

with different meanings than the district court assigned to them 

is without merit. Like the rest of these terms, “contamination” 

is readily defined in standard dictionaries, and Kaiser himself 

used and accepted the term in describing the restoration of his 

house. The district court did not err in finding that Kaiser’s 

property loss was excluded from coverage as “contamination,” 

among other perils, under paragraphs 12 and 13(e) and (f) of 

the Allstate insurance policy. Kaiser’s first assignment of error 

is without merit.

(b) Paragraphs 18 and 19(d)

Kaiser next assigns that even if the district court did not err 

in finding his property loss was excluded under paragraphs 

12 and 13(e) and (f), the district court still erred in not granting him relief under two other paragraphs of the Allstate 

insurance policy. Specifically, Kaiser points to paragraphs 18 

and 19(d). Although paragraph 18 generally excludes from 

15 See, e.g., American Fam. Mut. Ins. Co. v. Wheeler, 287 Neb. 250, 842 

N.W.2d 100 (2014).

16 See id.

17 See Henn, supra note 1.
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coverage “vandalism,” it provides an exception for “sudden 

and accidental direct physical loss caused by fire resulting 

from vandalism.” (Emphasis omitted.) Likewise, although 

paragraph 19 excludes from coverage property loss resulting from most “act[s] of a tenant,” paragraph 19 provides an 

exception for “[a]ny act of a tenant [that] results in sudden 

and accidental direct physical loss caused by . . . d) smoke.” 

(Emphasis omitted.)

According to Kaiser, his property loss was predominantly 

caused in accordance with these exceptions. And the insurance policy provides that when there are two or more causes 

of loss to the covered property, coverage is only excluded if 

the predominant cause of loss is excluded. Therefore, Kaiser 

contends that even if his property loss was excluded from 

coverage under paragraphs 12 and 13(e) and (f) of the Allstate 

insurance policy, the language regarding two or more causes 

of loss should provide relief because the perils described in 

paragraphs 18 and 19(d) were the predominant causes of loss. 

We disagree.

[15] If the insurer meets its burden of proving the applicability of any exclusions under the policy as affirmative defenses, 

then the burden returns to the insured to prove the applicability 

of an exception to any exclusions. 18 Here, as discussed above, 

paragraphs 18 and 19 contain exceptions to the exclusions for 

“vandalism” and “act[s] of a tenant.” (Emphasis omitted.) In 

order for the exceptions to those exclusions to apply, Kaiser 

has the burden to show that the harm was the “sudden and 

accidental” result of fire or smoke.

In support of his argument that he comes within these 

exceptions, Kaiser cites to insurance law cases from other 

jurisdictions in which vandalism has been inferred by tenants’ using and manufacturing illegal substances that resulted 

18 See Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810, 716 

N.W.2d 87 (2006).
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in property damage. 19 We need not decide here whether to 

follow those other jurisdictions because we conclude that 

Kaiser has failed to show that his property loss was “sudden 

and accidental.”

We have previously construed the phrase “sudden and 

accidental” in an insurance policy. In Dutton-Lainson Co. v. 

Continental Ins. Co.,

 20 we construed the phrase in the context of an exception to a pollution exclusion. After incurring 

costs from an environmental cleanup of pollutants used in its 

manufacturing operations over some 37 years, Dutton-Lainson 

Company (Dutton-Lainson) filed a claim for indemnification 

with its insurer. Continental Insurance Company (Continental 

Insurance) denied the claim, however, under an exclusion 

for losses caused by pollution. In response, Dutton-Lainson 

claimed that a sudden and accidental exception to the pollution 

exclusion applied. The parties presented these arguments in 

district court, and thereafter, the district court granted summary 

judgment to Continental Insurance. Dutton-Lainson appealed, 

renewing its argument that the sudden and accidental exception 

to the pollution exclusion applied. 21

We rejected Dutton-Lainson’s argument. First, we found 

that “[s]ince the ‘sudden and accidental’ exception to the 

pollution exclusion clause [was] expressed in the conjunctive, both requirements must be met for the exception to 

become operative.” 22 We then reviewed how other courts had 

interpreted the term “sudden” as a necessary component of 

the phrase:

Courts have disagreed as to whether “sudden” refers 

to something temporally abrupt from an objective 

19 See, e.g., Livaditis v. American Casualty Co. of Reading, Pa., 117 Ga. 

App. 297, 160 S.E.2d 449 (1968); Bowers v. Farmers Ins. Exchange, 99 

Wash. App. 41, 991 P.2d 734 (2000); Graff v. Allstate Ins. Co., 113 Wash. 

App. 799, 54 P.3d 1266 (2002).

20 Dutton-Lainson Co., supra note 18.

21 See id.

22 Id. at 821, 716 N.W.2d at 97.
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standpoint, something unexpected from the subjective 

standpoint of the insured, or whether the term is ambig

uous. In considering the meaning of the term “sudden,” 

several courts have noted that recognized dictionaries differ as to its meaning. 23

For example, we noted that definitions of the term “sudden” 

varied in recognized dictionaries between having primarily to 

do with a lack of notice and with a rate of occurrence. 24

In any event, however, we found that under the terms of the 

policy, pollution that occurred over a significant period of time 

was not covered as “sudden.” 25 “[A] reasonable person in the 

position of the insured would understand the term ‘sudden,’ 

as found in the context of the qualified pollution exclusion, to 

refer to the objectively temporally abrupt release of pollutants 

into the environment.” 26 Thus, we affirmed the district court’s 

grant of Continental Insurance’s motion for summary judgment. Dutton-Lainson’s loss from pollution that occurred over 

a period of 37 years was not sudden. 27

23 Id.

24 See id. at 821-22, 716 N.W.2d at 97-98 (comparing term “sudden” as 

defined in “Webster’s Third New International Dictionary of the English 

Language, Unabridged 2284 (1993), [as] ‘happening without previous 

notice or with very brief notice; coming or occurring unexpectedly; not 

foreseen or prepared for’”; with term “sudden” as defined in “Black’s Law 

Dictionary 1432 (6th ed. 1990) [as] ‘[h]appening without previous notice 

or with very brief notice; coming or occurring unexpectedly; unforeseen; 

unprepared for’”; and with term “sudden” as defined in “Random House 

Dictionary of the English Language 1900 (2d ed. 1987) . . . as ‘happening, 

coming, made, or done quickly’”). See, also, “Sudden,” Oxford English 

Dictionary Online, http://www.oed.com./view/Entry/193468 (last visited 

Oct. 10, 2020) (“[h]appening or coming without warning or premonition; 

taking place or appearing all at once”).

25 See Dutton-Lainson Co., supra note 18.

26 Id. at 823-24, 716 N.W.2d at 99.

27 See id. Accord, Mapes Indus. v. United States F. & G. Co., 252 Neb. 154, 

560 N.W.2d 814 (1997); Bituminous Cas. Corp. v. Aaron Ferer and Sons 

Co., No. 4:06CV3128, 2007 WL 2066452 (D. Neb. July 16, 2007).
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[16] Our analysis here is similar. As in Dutton-Lainson, 

the Allstate insurance policy expresses the phrase “sudden 

and accidental” in the conjunctive. Therefore, to carry his 

burden of proving coverage under paragraph 18 or paragraph 

19(d), Kaiser must show that his property loss resulted in 

direct physical loss that was both “sudden and accidental.” 

Because we conclude that Kaiser has failed to show that his 

property loss was sudden, we need not determine whether it 

was accidental.

Kaiser’s argument that the property loss was sudden rests 

on his assertion that as a result of his tenants’ producing 

or using methamphetamine indoors, methamphetamine vapor 

and residue “quickly bonded to most surfaces throughout the 

rental house.” 28 Because this bonding occurred “quickly,” 

Kaiser would have us infer that the resulting property loss 

as a whole was sudden. But this argument wrongly frames 

the issue.

In Dutton-Lainson, we could also have framed the property 

loss as the result of numerous sudden discharges of pollutants 

over 37 years. 29 Likely, some amount of the pollutants at issue 

had escaped quickly every day, each time contributing to the 

ultimate loss for which Dutton-Lainson sought indemnification 

from Continental Insurance. But we opted against framing the 

property loss in terms of its smallest components. 30 Instead, 

because Dutton-Lainson sought indemnification for one property loss—that is, the cleanup from one pollution—we framed 

it accordingly. And because that one property loss occurred 

over a period of 37 years, it was not sudden. 31

28 Brief for appellant at 29.

29 See Dutton-Lainson Co., supra note 18.

30 See id.

31 See id.
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[17] Here, too, Kaiser’s claim to Allstate is for one whole 

property loss, not its component parts. Kaiser leased the whole 

property to tenants. Allstate insured the whole property from 

certain perils. The tenants produced or used methamphetamine 

in the house and thereby rendered the house uninhabitable as a 

whole. Kaiser filed a claim to Allstate demanding payment for 

the whole loss. Thus, we frame the property loss at issue not 

by each release of methamphetamine vapor and residue, but by 

the loss that resulted from their many releases and for which 

Kaiser sought indemnification. We decline to embrace Kaiser’s 

logic of death by a thousand paper cuts.

Viewed through a proper frame, then, the evidence in 

the record indicates that Kaiser’s property loss as a whole 

occurred over time, not suddenly. Kaiser himself testified 

that his tenants resided at the property for more than a year, 

from April 15, 2012, until May 1, 2013. He received reports 

throughout the year from persons living near the house that 

the house was being used for suspicious drug-related activities. On at least one occasion, in April 2013, Kaiser learned 

that someone living there had “got[ten] in trouble for doing 

meth last night.”

Although he did not know specifically when during that year 

the tenants began producing or using methamphetamine in the 

house, Kaiser indicated in his amended complaint that such 

producing or using could have occurred as soon as April 15, 

2012, the day the tenants took possession of the house. Kaiser 

specifically stated that to the best of his knowledge, the use or 

production of methamphetamine was ongoing throughout the 

tenancy: “the Tenants who were occupying the Property had 

been using methamphetamine in the Property and/or operating an illegal methamphetamine lab on the Property, unbeknownst to [Kaiser].” (Emphases supplied.) The phrases “had 

been using” and “[had been] operating” imply that the tenants’ 

use of methamphetamine or operation of a methamphetamine 
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laboratory in the house occurred in the past but on a contin

uous, ongoing basis. 32

It was Kaiser’s burden to prove that his property loss 

occurred “suddenly and accidentally.” But Kaiser did not put 

forth any evidence that his property loss occurred in this way. 

To the contrary, the evidence that Kaiser himself offered indicates that the loss actually occurred as the result of his tenants’ 

smoking or producing methamphetamine in the house on an 

ongoing basis over a significant period of time, perhaps up to 

a year.

[18] But “an event occurring over a period of time is not 

sudden.” 33 Thus, just as we held in Dutton-Lainson that pollution occurring over 37 years was not sudden, 34 we now also 

hold that a property loss from methamphetamine vapor and residue occurring by indoor methamphetamine use or production 

over a period of months or more is not sudden. A reasonable 

person in Kaiser’s position would not understand “sudden” 

to refer to a property loss occurring over a period of months. 

Kaiser has failed to carry his burden of proving otherwise.

Because Kaiser has failed to carry his burden of proving 

that his property loss was sudden and accidental, he has also 

failed to carry his burden of proving that his property loss was 

covered as predominantly caused in accordance with paragraphs 18 and 19(d). The district court did not err in finding 

Kaiser’s property loss was excluded from coverage under paragraphs 12 and 13(e) and (f) of the Allstate insurance policy and 

32 See The Chicago Manual of Style ¶ 5.120 (15th ed. 2003); “Past perfect 

continuous,” Cambridge Dictionary Online, http://www.dictionary.cam

bridge.org/us/grammar/british-grammar/past-perfect-continuous (last vis

ited Oct. 10, 2020) (as defined in grammar section: “[W]e use the past 

perfect continuous to talk about actions or events which started before 

a particular time in the past and were still in progress up to that time in 

the past”).

33 Dutton-Lainson Co., supra note 18, 271 Neb. at 823, 716 N.W.2d at 99.

34 Id.
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not covered under paragraph 18 or paragraph 19(d). Kaiser’s 

second assignment of error is without merit.

2. Summary Judgment

Kaiser next assigns that the district court erred in granting Allstate’s motion for summary judgment because a gen

uine issue of material fact remained as to whether Kaiser’s 

property loss was caused by the tenants’ producing or using 

methamphetamine.

In its order, the district court concluded that the evidence 

from Allstate’s expert indicated that the tenants’ methamphetamine production, not use, caused Kaiser’s property loss. 

Kaiser disputes this factual finding. He contends that although 

in his initial complaint he claimed his property loss was the 

result of methamphetamine production, he did not have a basis 

for that conclusion and now believes it could have been methamphetamine use instead. Kaiser accordingly assigns that summary judgment was not proper. We disagree.

[19,20] Summary judgment is proper when the pleadings 

and the evidence admitted at the hearing disclose that there 

is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that 

the moving party is entitled to judgment as a matter of law. 35

An appellate court will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show 

that there is no genuine issue as to any material facts or as 

to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter 

of law. 36

Here, it is immaterial whether Kaiser’s tenants damaged 

the house by producing or using methamphetamine indoors. 

As both parties and both parties’ experts testified, the cause of 

loss was “methamphetamine vapor” and “methamphetamine 

35 Arnold v. Walz, 306 Neb. 179, 944 N.W.2d 747 (2020).

36 Id.
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residue.” Based on that evidence, the district court correctly 

concluded that the property loss was excluded from coverage 

under paragraphs 12 and 13(e) and (f) of the Allstate insurance 

policy and was not covered under paragraphs 18 and 19(d). 

Even if, as Kaiser urges, we were to find that a genuine factual 

dispute remained, the dispositive fact remains that methamphetamine vapor and methamphetamine residue are excluded 

causes of loss under the Allstate insurance policy. Therefore, 

whether the methamphetamine vapor and methamphetamine 

residue were released inside the house through production or 

through use is immaterial to this court’s ultimate conclusions 

of law.

We concur with the district court’s grant of summary judgment. Kaiser’s third assignment of error is without merit.

VI. CONCLUSION

The district court’s order granting Allstate’s motion for summary judgment is affirmed.

Affirmed.