Petition for Writ of Certiorari — Sellens v. American States Insurance

_ Supreme Court, U.S.

A FILED

Qh 227 AUG 1 8 2004

ste OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

CHARLES J. SELLENS,

Petitioner,

AMERICAN STATES INSURANCE COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF KANSAS

PETITION FOR A WRIT OF CERTIORARI

CHARLES J. SELLENS

Uwabu Sakae-machi 10-7

Komagane-Shi

Nagano-Ken 399-4115

Japan

8 1-265-82-4417

Petitioner Pro Se.

\ "Washington, D.C. © THIEL PRESS © (202) 328-3286

(:)

QUESTIONS PRESENTED

1. Whether it was error for the Kansas Supreme Court

to hold that K.S.A. 40-2, 118, Fraudulent Insurance Act,

was limited to acts of fraud committed against insurance

companies and insurance agents in conflict with the ob-

vious contrary language in the statute, its own previous

decisions, and further in conflict with decisions of this

court, other federal courts of appeals, and other state

supreme courts?

2. Whether K.S.A. 40-2, 118, Fraudulent Insurance

Act, found to be limited to acts of fraud committed

against insurance companies and insurance agents vio-

lates the petitioner’s right to equal protection of the

laws clause of the fourteenth amendment to the U.S.

Constitution?

3. Whether it was error for the Kansas Supreme Court

to deny the petitioner’s motion to publish the Kansas

Appellate Court’s unpublished opinion in this case when

the petitioner had filed a motion to publish the opinion

and cited six valid sets of criteria for publication and

when any one of the six sets of criteia would be adequate

reason to mandate publication?

4. Whether it was error for the Kansas Supreme Court

to fail to require the district court to determine whether

facts pled by the petitioner states a claim for relief, not

only on the theory which was espoused by the petitioner,

but on any possible theory that can be “‘divined”’ by the

court as instructed in Noel v. Pizza Hut, Inc., 15 Kan.

App.2d 225, 231, 805 P.2d 1244 (1991), rev. denied,

248 Kan. 996 (1991)?

(3)

PARTIES TO THE PROCEEDING

The parties to this case are:

Plaintiff/Petitioner:

Charles J. Sellens

Uwabu Sakae-machi 10-7

Komagane-Shi; Nagano-Ken

399-4115

Japan

Defendant/Respondent:

American States Insurance

Company

500 N. Meridian St.

Indianapolis, IN 46204

During the course of this litigation,

American States Insurance

Company was acquired by:

Safeco Corporation

Safeco Plaza

Seattle, WA 97185

(ttt)

Page

TABLE OF CONTENTS

Gguestions Presented .. oo... ec aces ccccnce i

Parties To The Proceeding...............00...... il

Table Of Authorities....................00.... iv

Petition For A Writ Of Certiorari ................. ]

PONE OS soe n kc cc cab ccccseccacenceccs 1

Ps hes aes aWnccdceanccdcancencee, ]

Constitutional Provisions Involved ................ 2

i Oe 2

memtement OF The Case... cece can ccccccce 3

Reasons For Granting The Writ:

I. Because This Court In Cruikshank Articu-

lated A Guaranty Against The Exertion

Of Arbitrary And Tyrannical Power On

The Part Of The Government And Legisla-

ture Of The State, Kansas Courts Must

Also Be Directed That There Is A Guar-

anty Against The Exertion Of Arbitrary

And Tyrannical Power On The Part Of

The Courts Of The State Of Kansas............ 6

II. The Finding — That K.S.A. 40-2, 118,

Fraudulent Insurance Act, Is Limited To

Acts Of Fraud Committed Against Insur-

ance Companies And Insurance Agents —

Is In Conflict With The Obvious Contrary

Language In The Statute, Previous Kansas

Decisions, And Is Further In Conflict With

Decisions Of This Court, Other Federal

Courts Of Appeals, And Other State Sup-

cvssadiscapn toying ARE EEE UE EET ETE eee 13

(iv)

III, Because The Rules Adopted By The Sup-

reme Court Of The State Of Kansas

Acknowledge That The Legal Profession

Is Largely Self-Governing, This Case Must

Be Granted A Writ So That Kansas Courts

Can Be Directed To Follow State Statutes

Py Te Ts Tk i 5 6 4 6 04 0 Koes

IV. This Case Should Be Neither Close Nor Dif-

ficult To Decide. No Facts Are In Dispute

By Either Petitioner Or Respondent.

Granting The Writ Will Create A Vehicle

Necessary To Reinstate The Rule Of Law

a eas a Re a ee are

a en rn a aa ae

APPENDICES:

Appendix A — Order of the Kansas Supreme Court

denying Petition For Review (May 26, 2004) ....

Appendix B — Memorandum Opinion of the Court

Of Appeals Of The State Of Kansas (March 5,

ee. rn re Se ei py

Appendix C — Order of the Kansas Supreme

Court denying Motion To Publish Opinion

(WEaneh SU, ZOOS) voc envsw at euc ieawestauss

TABLE OF AUTHORITIES

Federal Cases:

Bray v. Alexandria Clinic, 506 U.S. 263 (1993) ....

Dunn v. Commodity Futures Trading Commis-

ston (95-1181), 519 U.S. 465 (1997) .........

Gentile v. State Bar of Nevada (89-1836), 501

BE. MOTOR . 4 csi cree

Page

(v)

Federal Cases, continued: Page

Hartford Fire Insurance Co. et al v. California et

al. Merrett Underwriting Agency Management

Limited et al., Nos. 91-1] 11 and 91-1128

RAMEE LORNA EV wh Nerck saben cudrad boddacex 7

Johnson v. United States (99-5153), 529 U.S, .

ial enn tas tal. 7

Jones v, United States (99-5739), 529 U.S, 848

cau A CEE eT TT ee, 8, 10

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937... .. 16

Rewits v. United States, 401 U.S. 808, 812......... 11

U.S. v, Cruikshank, 1 Woods 316 .............. 6, 16

United States v. Morrison et al., No. 99-5

<aiuthg. ER Te CECT TORR Te 13

Virginia v. Rives, 100 U.S. 313.................. 16

State Cases:

Atlantic International Insurance Co. v. Bell, 475

BOW OO BOO IDOE. 5 go cee inc ccccccccneeey 14

Baker v. R.D, Andersen Const. Co., Inc., Kan.App.,

Oe PVN BON 6.55 606 Sh oho 6:04 Kida o vba cue. 10

Boatright v. Kansas Racing Comm’n., 251 Kan.

240, 245, 834 P.2d 368 (| Sa ao 7

Bruggeman v. Schimke, 239 Kan. 245, 247, 718

a) ee 5

Capital Services, Inc. v. Dahlinger Pontiac-Cadillac,

232 Kan. 419, 422, 657 P.2d 36 Co 11

City of Shawnee, Kan. v. AT&T Corp., 910 F.Supp.

Rm COR MM EDO), yee cans cvvcuwacaccas 17

Grinsted Products v. Kansas Corp., 937 P.2d 1

(Kan. cid LE EE ET TET eT ee ne 5

(vt)

State Cases, continued: Page

Marker v. Preferred Fire Ins. Co., 211 Kan. 427,

EE BO CEPT 6c ceca See eked ea eee 13

Marshel Investments, Inc. v. Cohen, Kan. App.,

I S66 k 24 ck ERE AAO GAO RED RES 13

Noel v, Pizza Hut, Inc., 15 Kan. App. 2d 225, 231,

805 P.2d 1244 (1991), rev. denied, 248 Kan.

WCCO RR cca hoa een bbocesnneeaeeees i, 19, 20

Pacific Mutual Life Insurance Co. v. Haislip, et al.,

ge RB RG | reer era ere 15

Re: Shirk Estate, 363 P.2d 461, 188 Kan. 513

SE 6 RA TRA RA AE ERS WER Re eRe 20

Russell v. Boverd, 113 P.2d 1064, 153 Kansas

(chs. | | Parra arena war erire Para arare a 20

Stanton v. KCC, 2 K.A.2d 228, 229, 577 P.2d

oer rer er errr eres eer ye ee ys 16

Taiwo v. Vu, 822 P.2d 1028 (Kan. 1991).......... 16

Tank v. State Farm Fire & Casualty Co., 105

Wash.2d 381, 715 P.2d 1133 (1986)............ 14

Federal Constitutional Provisions:

Section 1 of Amendment XIV to the U.S.

GOnstitution ..... cece cree ccc ccccncens passim

Bee Bas | oda onc dccacveneees 2

State Constitutional Provisions:

Constitution of the State of Kansas, Bill of Rights,

ee PPET OUT TE Oe re 2,17

Constitution of the State of Kansas, Bill of Rights,

SN 2 ks AS ee Ske ek ee = i?

(vit)

Page

State Statutes:

K.S.A. 40-2, 118, Fraudulent Insurance Act.... passim

ss sth, Basitine ins, CREE EE ETE TOT ne 18

Re Os ini b ewe deus cubase eceee 18, 19, 21

Supreme Court Rules of the State of Kansas:

mums OLR. Amma G08 oo ook ec acsncncwccccc 18

man, Ct.R. Anno. 7.04 .....000500cccces, 19, 20, 21-

Miscellaneous:

Second College Edition, The American Heritage

Dictionary, Houghton Mifflin Company,

ON RW kas wa WN ens bk dddw ase cacances 9

New College Edition Heritage Illustrated Diction-

ary, McGraw-Hill, New York 1975 .............. 9

PETITION FOR A WRIT OF CERTIORARI

Charles J. Sellens of Komagane, Japan respectfully

petitions this Court for a writ of certiorari to review the

judgment of the Kansas Supreme Court in this case.

OPINIONS BELOW

The Kansas Court of Appeals’ memorandum opinion,

the Kansas Supreme Court’s denial of the petitioner’s

petition for review, and the Kansas Supreme Court’s

denial of the petitioner’s motion to publish were not

officially publ*.hed. They are identified in the Kansas

Judicial Bran-as Case Inquiry System of ‘the Kansas

Appellate Courts at case number 90202. The Kansas

Supreme Court’s denial of the petitioner’s petition for

review is reprinted in the Appendix, hereto (“‘App.”),

at la. The Kansas Appellate Court’s memorandum

opinion is reprinted at App. 3a-8a. The Kansas Sup-

reme Court’s denial of the petitioner’s motion for publi-

cation is reprinted at App. 9a-10a.

JURISDICTION

The Kansas Appellate Court issued an unpublished

opinion on March 5, 2004 affirming the Kearny County

Court’s ruling. The petitioner filed a timely motion for

publication of the opinion. The Kansas Supreme Court

denied the motion for publication on March 30, 2004.

The petitioner filed a timely petition for review of the

Kansas Appellate Court’s unpublished opinion as a matter

of night. The Kansas Supreme Court denied the petition

for review on May 26, 2004 without addressing the claim

2

of review as a matter of right. The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The equal protection of the laws clause of the four-

teenth amendment to the U.S. Constitution provides that

no state can: “*,... deny to any person within its jurisdic-

tion the equal protection of the laws.”

The Constitution of the State of Kansas, Bill of Rights,

Section 1, speaks to the possession of equal and inalien-

able natural rights. The Constitution of the State of Kan-

sas, Bill of Rights, Section 2, speaks to equal protection

and benefit.

INTRODUCTION

This petition raises the issue of whether Kansas state

courts must adhere to the tests and standards established

by this Court under the equal protection of the laws

clause of the fourteenth amendment to the U.S. Consti-

tution. This amendment succinctly prohibits the State of

Kansas from denying the petitioner with equal protection

of its laws. Section 1 states:

we

. .. . No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

The final decisions of the Kansas Supreme Court raises

questions, for the first time, under Section XIV of the

Constitution of the United States and Articles 1 and 2

of the Constitution of the State of Kansas. The peti-

3

tioner can not find any precedent in any jurisdiction in

which the issue was raised of a state judicial authority

denying a party with equal protection of its laws by issu-

ing a dispositive opinion that is in conflict with the lang-

uage in a special statute and/or a state judicial authority

ignoring the checks and balances created by its own

State’s statutes and its own rules.

If the decision below and its analysis stand, there will

always be a class of U.S. citizens who will never be able

to avail themselves of their right to equal protection of

the laws guaranteed them by the U.S. Constitution.

STATEMENT OF THE CASE

Sellens is a U.S. Citizen but has resided in Japan since

1992. He is the president of International Education

Services, Inc. (IES), a Kansas corporation doing sub-

stantial business in Japan. In August 1996, IES decided

to construct a house in Lakin, Kansas and made an appli-

cation for general liability insurance at “The Agency”’

in Lakin, Kansas. Doug Geubelle of “The Agency,”

placed the insurance with American States Insurance

Company, Inc. (ASIC) and gave IES a certificate of insur-

ance, binding coverage, to use for proving liability insur-

ance coverage to the City of Lakin, Kansas. The City of

Lakin, Kansas issued IES a Contractor’s License and a

Building Permit based on the insurance coverage provided

by ASIC.

Several days later, ASIC, by one of its underwriters,

James Bambick (Bambick), altered the IES insurance

application by drawing a line through “International

Education Services, Inc.” and writing “‘Charles J. Sellens”’

on the “DBA” line of the application. ASIC then pro-

duced a policy listing Sellens as an insured.

ee ee Ty

4

On November 10, 1996 Brian Groth (Groth) had an

accident and suffered an injury while standing on scaf-

folding that broke. On or about November 25, 1997,

Groth commenced a lawsuit in Kearny County, Kansas,

against IES, Sellens, et al.

Sellens attempted to resolve any potential disputes, yet

protect the interests of himself and others, by requesting

that ASIC defend and indemnity all parties. ASIC was

unwilling to resolve the problems by agreeing to defend

and indemnify all parties. Instead, ASIC and ASIC’s

employees conspired to commit additional fraud and did

commit additional fraud by attempting to legitimize their

policy. By its area supervisor, Carlos Cauldron, ASIC

employed Attorney Richard Marquez (Marquez) to enter

the case under pretended authorities of the policy.

Marquez entered the Groth case on or about Decem-

ber 12, 1997, stating in his entry to the Court that he was

defending all defendants including IES and Sellens. On

or about December 24, 1997 Sellens learned of the exist-

ence of Marquez and called him on the phone. Seilens

refused the ASIC offer of a defense under the proposed

conditions and informed Marquez that he had not been

served. Marquez informed Sellens that service was not an

issue because Marquez had already entered the case.

Marquez also stated that he was acting under authority

granted by ASIC’s reservation of rights in the policy.

Marquez gave ASIC information obtained from Sellens

to give ASIC additiona! advantages in its controversy

with Sellens.

ASIC deceived proper authorities into believing the

policy was legitimate and their acts were lawful. ASIC

further attempted to confuse the issues by stating to

proper authorities that ASIC was agreeing to defend all

5

Parties under reservation of rights while maintaining to

Sellens that ASIC was offering a defense to only Sellens.

ASIC gave instructions to Marquez. to proceed in ways

that would be helpful to ASIC but harmfu! to Sellens and

others.

Many ASIC supervisory employees sanctioned and par-

ticipated in the violation of K.S.A. 40-2, 118 and other

fraudulent acts. On or about August 25, 1998, ASIC

filed a Petition For Declaratory Relief in the Kearny

County District Court, Case No. 98 C 13, asking the

Court to determine the status of IES. However, ASIC

failed to name Sellens as a defendant and failed to accur-

ately identify the issues that needed to be brought before

the Court.

Sellens sustained substantial financial losses as a result

of fraudulent acts committed by ASIC. He filed his own

petition requesting that ASIC be found to have violated

K.S.A. 40-2, 118 and that it be ordered to make restitu-

tion to Sellens of such violations of K.S.A. 40-2, 118

pursuant to the statute.

This statement of the case has been accurately repro-

duced from Sellens’ petition (R.O.A. Vol. 1, pgs. 3 - 7).

Kansas’ precedent cases including Bruggeman and Grind-

sted grant the petitioner’s description of events, the

status of those which occurred. Bruggeman v. Schimke,

239 Kan. 245, 247, 718 P.2d 635 (1986); (Cited in

Grinsted Products v. Kansas Corp., 937 P.2d 1 Kan.

(1997). .

On December 15, 1999, ASIC filed a motion to dismiss

case number 99 C 20 asserting that the petitioner had no

cause of action. (Vol. 1, p. 10-13). Over three years

later, the trial court ruled that the protection provided

by K.S.A. 40-2, 118 was limited to acts of fraud com-

6

mitted against insurance companies and insurance agents.

(R.O.A. Vol. I, p. 101-103).

The Kansas Appellate Court agreed. It issued an ~|

unpublished opinion that K.S.A. 40-2, 118 is intended to

criminalize fraudulent acts committed against insurers

and their agents. The Kansas Appellate Court further

agreed with the trial court that the intended statutory

victim is the insurer — not the insured. App. 6a. The

Kansas Supreme Court denied Sellens’ petition for

review. App. la.

REASONS FOR GRANTING THE WRIT

I,

BECAUSE THIS COURT IN CRUIKSHANK ARTICU-

LATED A GUARANTY AGAINST THE EXERTION OF

ARBITRARY AND TYRANNICAL POWER ON THE

PART OF THE GOVERNMENT AND LEGISLATURE

OF THE STATE, KANSAS COURTS MUST ALSO BE

DIRECTED THAT THERE IS A GUARANTY AGAINST

THE EXERTION OF ARBITRARY AND TYRANNICAL

POWER ON THE PART OF THE COURTS OF THE STATE

OF KANSAS.

This petition focuses on the Kansas Judicial System’s

interpretation of K.S.A. 40-2,118 (1), Fraudulent Insur-

ance Act, which reads in part:

“For purposes of this act a ‘fraudulent insurance

act’ means an act committed by any person who,

knowingly and with intent to defraud, presents,

causes to be presented or prepares with knowledge

or belief that it will be presented to or by an insur-

er, purported insurer, broker or any agent thereof,

any written statement as part of, or in support of,

an application for the issuance of, or the rating of

an insurance policy for personal or commercial

insurance. ...”

7

The petitioner has consistently maintained, and con-

tinues to maintain, that the statutory language in K.S.A.

40-2, 118 specifically instructs that an insured may

maintain an action against an insurer for the insurer’s

fraudulent acts. The Kansas legislature knowingly

included the language: “to or by an insurer, purported

insurer, broker or any agent thereof,” when identifying

the entities whose acts are subject to scrutiny under

standards imposed by K.S.A. 40-2, 118, Fraudulent

Insurance Act.

Precedent Kansas case Boatright instructs: “The legisla-

ture is presumed to understand the meaning of the words

it uses and the procedures it establishes.” Boatright v.

Kansas Racing Comm’n, 251 Kan. 240, 245, 834 P.2d

368 (1992).

The alteration of the insurance contract previously

issued to IES to substitute the petitioner as a named

insured is indisputably a fraudulent act committed by

ASIC et al. The petitioner indisputably suffered financial

damages as a consequence of being identified as a named

insured on the insurance contract. The onus was on the

Kansas Judicial System to offer more than dismissive

language to explain why the petitioner had no cause of

action considering the outrage of ASIC’s acts and the

contradictory language included in the statute.

On point, the U.S. Supreme Court has often defined

words to help explain the logic for its decisions. Hartford

Fire Insurance Co. et al. v. California et al. Merrett

Underwriting Agency Management Limited et al., Nos.

91-1111 and 91-1128 (1993) includes the Oxford English

Dictionary’s 468 (2d ed. 1989) definition of the word:

“boycott.” In Johnson v. United States, (99-5153), 529

U.S. 694 (2000), 181 F.3d 105, the U.S. Supreme Court

discusses the definition of: ‘“trevoke.” Bray v. Alexandria

8

Clinic, 506 U.S. 263 (1993), includes Webster’s Second

International Dictionary 1306 (1954) definition of the

word: “‘invidious.”’

The U.S. Supreme Court placed emphasis on the key

word “in” and would not violate the ordinary meaning

in Dunn v. Commodity Futures Trading Commission (95-

1181), 519 U.S. 465 (1997). The U.S. Supreme Court

identified ‘‘used” in Jones v. United States (99-5739),

529 U.S. 848 (2000). In this case, the Kansas Appellate

Court’ opinion includes:

“K.S.A, 40-2, 118 is clear in its design to criminal-

ize fraudulent acts committed against insurers and

their agents. We agree with the district court that

the intended statutory victim is the insurer — not

the insured.” (App. 6a).

Common sense and the ordinary meaning of the lang-

uage used do not support the Appellate Court’s opinion.

To position itself to arrive at its opinion, the Appellate

Court had to ignore the identifying language, “‘. . . .to or

by an insurer, purported insurer, broker or any agent

thereof. .. .” that is included in K.S.A. 40-2, 118.

The Appellate Court also had to transpose: “In addi-

tion to any other penalty, a person who violates this

statute shall be ordered to make restitution to the insurer

or any other person or entity for any financtal loss sus-

tained as a result of such violation... .” (Emphasis

added) to read: ‘**. . . Although the act enables an insurer

to seek restitution for fraudulent insurance acts, it does

not provide that an insured person can bring a civil law-

suit against an insurer to recover restitution” (sic). App.

6a-7a.

Two dictionaries identify: “by” and also ‘“‘through”’

and “‘with” and offer explanations that support the peti-

9

tioner’s interpretation of the Fraudulent Insurance Act.

They are:

“These prepositions indicate the agency or means by

which something is accomplished. By usually intro-

duces directly the agent (person) or agency (power);

named by him; struck by lightning.” Second college

Edition, The American Heritage Dictionary, Hough-

ton Mifflin Company, Boston 1892 and also the

New College Edition Heritage Illustrated Dictionary,

McGraw-Hill, New York 1975.

However, the Appellate Court trivialized the impor-

tance of the obvious construction with the dismissive

language that: ‘“‘Sellens’ argument is without merit.”

(App. 6a). The Appellate Court went on to find that;

“Sellens’ proposed construction is simply not supported

by the statutory language or the obvious legislative

intent.”” App. 6a.

The Appellate Court did not explain why it consid-

ered the petitioner’s arguments without merit. Notwith-

standing, the petitioner’s arguments are most meritorious

vis-a-vis the Appellate Courts’ opinion which would grant

insurance companies and their agents immunity from

either criminal or civil prosecution for violations of the

Fraudulent Insurance Act if only they had followed state

statutes and their own rules mandating publication of the

opinion.

The petitioner has convincingly demonstrated that the

proper construction of K.S.A. 40-2, 118, Fraudulent In-

surance Act, provides him with a cause of action against

ASIC, Equally important, in the construction most fav-

orable to ASIC, the statute is in the very least still sus-

ceptible to the construction that he has a cause of action

10

against ASIC. The petitioner cited Baker in his pleading

captioned: Petition For Review, stating:

‘When statute is susceptible to more than one con-

struction, it should be considered in its entirety

and in light of legislative intent; statute should never

be construed so as to produce uncertainty, injustice

or confusion if it is possible to construe it other-

wise.” Baker v. R.D. Andersen Const. Co., Inc.,

Kan.App., 644 P.2d 1354.

The Kansas Appellate Court’s opinion produces pro-

found uncertainty, gross injustice, and extreme confusion

by excluding the petitioner as a person offered equal pro-

tection under the statute.

Also on point and instructive, the U.S. Supreme Court

case Jones includes:

oP . the guiding principle that where a statute is

susceptible of two constructions, by one of which

grave and doubtful constitutional questions arise

and by the other of which such questions are avoid-

ed, the Court’s duty is to adopt the latter.’’ Jones

v. United States (op. cit.).

The Kansas Appellate Court’s construction of the stat-

ute clearly raises grave and doubtful constitutional ques-

tions. If K.S.A. 40-2, 118 does not provide the petitioner

with protection that is equal to ASIC et al, then the stat-

ute must be found to be unconstitutional as it would be

in violation of the equal protection clause of Amendment

XIV to the U.S. Constitution. Jones and Baker provide

instruction that the Kansas Courts’ duty was to construe

K.S.A. 40-2, 118 to provide the petitioner with a cause of

action against ASIC under the statute.

If K.S.A. 40-2, 118 is construed to deny the petitioner

with a cause of action against ASIC it could just as easily

be construed to grant the petitioner with a cause of

11

action thus be subject to findings of vagueness. In his

pleading captioned: Petition For Review, the petitioner

asserted that he has rights under both the U.S. and Kan-

sas Constitutions to equal protection under the statute.

He cited Capital Services, Inc. v. Dahlinger Pontiac-

Cadillac, 232 Kan. 419, 422, 657 P.2d 36 (1983) and

several other Kansas cases that prohibit vague laws.

In Gentile, and on point, the U.S. Supreme Court’s

opinion includes:

“‘a vague law offends the Constitution because it

fails to give fair notice to those it is intended to

deter and creates the possibility of discriminatory

enforcement.” Gentile v. State Bar of Nevada

(89-1836), 501 U.S. 1030 (1991).

Capital Services and Gentile provide instruction that

the Kansas Courts’ duty was to ensure that K.S.A. 40-2,

118 was not subject to scrutiny for vagueness.

Rewts includes instructions that when a choice must

be made between two readings of what conduct Congress

has made a crime, it is appropriate: “. . . to require that

Congress should have spoken in language that is clear and

definite.” Rewts v. United States, 401 U.S. 808, 812.

Rewts provides direction that if the Kansas legislature

had intended to exclude fraud committed by insurance

companies and their agents from the provisions of the

Fraudulent Insurance Act, then it should have spoken in

language that is clear and definite.

However, the Kansas legislature did not speak in clear

and definite language excluding insurance companies and

insurance agents from civil prosecution for violations of

the Fraudulent Insurance Act. If the Kansas Appellate

Courts truly had confidence in the validity of the opin-

ion, it would have required that the opinion be pub-

lished.

12

With all due respect, the Kansas Appellate Court

System’s refusal to publish the opinion can only lead

reasonable people to conclude that the Kansas Appellate

Courts recognize that the opinion is so legally and funda-

mentally flawed that it could not be granted the status

of precedent but was only made to dispose of the peti-

tioner’s case without regard to the rule of law.

The petitioner can offer no better support for his

position than a criminal complaint filed by the office of

the Kansas Insurance Commissioner. On October 29,

2003, Robert C. Clause, Special Assistant Attorney Gen-

eral, Kansas Insurance Department filed charges against

an insurance agent, Rhonda Wilder, charging her with

violations of K.S.A. 40-2, 118, Fraudulent Insurance Act.

In the complaint, Special Assistant Attorney General

Clause specifically cites ‘Fraudulent Insurance Act”

seven (7) times and “K.S.A. 40-2, 118” four (4) times.

If the opinion in this case were assigned the stature

of precedent, then Wilder could not be found to be in

violation of K.S.A. 40-2, 118, Fraudulent Insurance

Act. Wilder is identified as an insurance agent and the

opinion would exclude insurance agents from prosecu-

tion under the act. Furthermore, Wilder is charged with

fraud committed against private citizens Fredrick E,

Sutton and Ida Mae Sutton. If the opinion in this case

were assigned the stature of precedent, Wilder could not

be charged with the commission of any crime because

the Fraudulent Insurance Act, a special statute that takes

precedent over common law and other statutes, would

be limited to: “. . . . criminalize fraudulent acts commit-

ted against insurers and their agents.”’

Construction of the Fraudulent Insurance Act to pro-

vide the petitioner with a cause of action against ASIC

13

is necessary to produce certainty, justice and to avoid

confusion about the rights of persons who are victims of

fraud committed by insurance companies and/or their

agents.

II.

THE FINDING — THAT K.S.A. 40-2, 118, FRAUDULENT

INSURANCE ACT, IS LIMITED TO ACTS OF FRAUD

COMMITTED AGAINST INSURANCE COMPANIES AND

INSURANCE AGENTS — IS IN CONFLICT WITH THE

OBVIOUS CONTRARY LANGUAGE IN THE STATUTE,

PREVIOUS KANSAS DECISIONS, AND IS FURTHER

IN CONFLICT WITH DECISIONS OF THIS COURT,

OTHER FEDERAL COURTS OF APPEALS, AND OTHER

STATE SUPREME COURTS.

United States v. Morrison, et al., No. 99-5 (2001) in-

vites scrutiny of the Appellate Court’s opinion under the

reading that laws should be uniform throughout the na-

tion. The petitioner can not find any precedent in Kan-

sas, nor in any other state, in which an insurance com-

pany and/or its agents have been found to have been

granted privileged status, vis-a-vis their insureds. The

petitioner can cite hundreds of precedent setting Kansas

cases in which the courts have properly recognized that

insurance companies and/or their agents do not have, nor

are deserving of, privilege status. Some include:

Marshel Investments, Inc. v. Cohen, Kan. App., 634

P.2d 123 sets forth the history of well established prin-

ciple of law that an insurance agent or broker who under-

takes to procure insurance for another and thereafter

neglects or fails to do so, will be held liable for any dam-

age resulting therefrom.

In a relevant case, Marker v. Preferred Fire Ins. Co.,

211 Kan. 427, 506 P.2d 1163 (1973), the action was

14

against an insurance company and one of its agents for

loss resulting from tornado damage to real property. The

opinion includes:

. ... “In support of this position plaintiff relies

upon the well established principle of law that an

insurance agent or broker who undertakes to pra-

cure insurance for another and thereafter neglects

or fails to do so, will be held liable for any damages

resulting therefrom.”

The petitioner can also cite hundreds of precedent set-

ting cases in other jurisdicions in which the courts have

properly recognized that insurance companies and/or

their agents do not have, nor are deserving of, privilege

status. Some include the Michigan Supreme Court’s

observation that the tripartite relations among an insur-

ance company, its insured, and legal counsel employed to

defend its insured carries:

6é

.

. .. rife possibilities of conflict which unquestion-

able runs against the insured, considering that

defense counsel and the insure frequently have a

long standing, if not collegial, relations.”” Atlantic

International Insurance Co. v. Bell, 475 N.W.2d 294

(1991).

In Tank, the state of Washington Court included in its

opinion:

“The potential conflict of interest between an

insured . . . mandate an even higher standard. An

insurance company must fulfill an enhanced obli-

gation to its insured as part of its duty of good faith.

Failure to satisfy this enhanced obligation may

result in liability of the company or retained defense

counsel, or both.” Tank v. State Farm Fire & Cas-

ualty Co., 105 Wash. 2d 381, 715 P.2d 1133 (1986).

=

15

Pactfic Mutual Life Insurance Co. v. Haslip, et al.

includes the opinion that:

‘

*,... Alabama’s longstanding common-law rule that

an insurer is liable for both compensatory and

punitive damages for the intentional fraud of its

agent effected within the scope of his employment

rationally advances the State’s interest in minimiz-

ing fraud, since that rule creates a strong financial

incentive for vigilance by insurers. (89-1279), 499

U.S. 1 (1991).

More importantly than the petitioner not being able to

cite a precedent, no other entity in this litigation has cit-

ed any statute or case in which an insurance company,

and/or its agents, have been found to have been granted

privileged status, vis-a-vis their insureds. The petitioner

asserts that there is none because any statute that denies

an insured equal protection with his/her insurance com-

pany and/or agent would be under continuous challenge

for being in violation of Amendment XIV to the U.S.

Constitution.

Section 1 of Amendment XIV to the U.S. Constitution

succinctly prohibits states from denying U.S. citizens

with equal protection of its laws. It states:

eee

66

. . » » No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

An issue in deciding if there has been a violation of the

protection guaranteed by the fourteenth amendment has

often been in determining if the act can be attributed to

the State. The purpose and effect of the fourteenth

16

amendment was clearly stated by Mr. Justice Bradley in

the case of U.S. v. Crutkshank, 1 Woods 316:

“It is a guaranty of protection against the acts of

the state government itself. It is a guaranty against

the exertion of arbitrary and tyrannical power on

the part of the government and legislature of the

state....”

Other cases on point include Virginia v. Rives, 100

U.S. 313, in which is stated: “. .. . these provisions of

the fourteenth amendment have reference to state action

exclusively, and not to any action of private individ-

uals.” Lugar includes: “State action requires both an

alleged constitutional deprivation caused by acts taken

pursuant to state law and that the allegedly unconstitu-

tional conduct be fairly attributable to the State.”

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937.

Under Cruikshank, Rives and Lugar’s guideposts, this

case should be neither close nor difficult. K.S.A. 40-2,

118, Fraudulent Insurance Act, is a special statute that

has been enacted by the state of Kansas, thus it takes

precedent over common law and other statutes. ‘When

a statute conflicts with the common law, the statute

controls.”” Cited in Tatwo v. Vu, 822 P.2d 1028 (Kan.

1991), “A special statute relating to particular persons

or things takes precedence over general statute.’’ Stan-

ton v. KCC, 2 K.A.2d 228, 229, 577 P.2d 1201. If

this special statute does not provide the petitioner

equal protection with ASIC et al. it is obviously in viola-

tion of the equal protection clause of the fourteenth

amendment to the U.S. Constitution.

The petitioner does not allege that ASIC et al have

violated his fourteenth amendment rights, nor does he

allege that the Kansas legislature has passed a law that

17

would violate his fourteenth amendment rights if prop-

erly enforced. The petitioner alleges that it is the Kansas

Judicial System itself that has violated his fourteenth

amendment rights by improper enforcement. He further

alleges that the Kansas Judicial System is governed by

provisions of the fourteenth by virtue of it assuming

the legislative function of making case law and is further

included in the fourteenth amendment’s language govern-

ing state’s prohibited acts,

Additionally, the Constitution of the State of Kansas,

Bill of Rights, Section 1, speaks to the possession of

equal and inalienable natural rights. The Bill of Rights,

Section 2, further speaks to equal protection and bene-

fit. City of Shawnee, Kan. v. AT&T Corp. provides

guidance that addresses the petitioner’s claim of violation

of Equal rights under law. City of Shawnee, Kan. v.

ATST Corp. states: “Under equal protection clause, all

persons similarly situated should be treated alike.” 910

F.Supp. 1546 (D. Kan. 1995). Parties to insurance con-

tracts are similarly situated so K.S.A. 40-2, 118 must be

construed to treat the petitioner equally with ASIC and

its agents.

The unpublished opinion in this case stands alone,

not as an error of judgment by the Kansas Judicial Sys-

tem, but as a written record of the Kansas Judicial

System exerting arbitrary and tyrannical power. This

case is further a record of the Kansas Judicial System’s |

nearly incontestable ability to deprive U.S. citizens

under their jurisdiction of their constitutional rights.

Only this Court has the power to prevent the continua-

tions of the abuse.

18

Ill.

BECAUSE THE RULES ADOPTED BY THE SUPREME

COURT OF THE STATE OF KANSAS ACKNOWLEDGE

THAT THE LEGAL PROFESSION IS LARGELY SELF-

GOVERNING, THIS CASE MUST BE GRANTED A WRIT

SO THAT KANSAS COURTS CAN BE DIRECTED TO

FOLLOW STATE STATUTES AND THEIR OWN RULES.

The Appellate Court raised constitutional questions,

for the first time, when it agreed with the trial court that

the intended statutory victim is the insurer — not the

insured. The Appellate Court raised additional consti-

tutional questions, for the first time, when it issued its

opinion that the Act enables an insurer to seek restitu-

tion for fraudulent insurance acts, but that it does not

provide that an insured person can bring a civil lawsuit

against an insurer to recover restitution (sic).

The petitioner appealed, as a matter of right, from the

final decision of the Court of Appeals pursuant to Kan.

Ct.R. Anno. 8.03(e)(1) and K.S.A. 60-2101(b) asserting

that final decisions of the Appellate Court raised ques-

tions, for the first time, under the Constitutions of both

the United States and the State of Kansas. The Kansas

Supreme Court simply ignored review mandated by

Kan. Ct.R. Anno. 8.03(e)(1) and K.S.A. 60-2101(b)

and denied the petitioner the review that was his by

right. (App. la).

When the petitioner was aggravated by the Appellate

Court’s memorandum opinion, he filed a motion for its

publication. He asserted that K.S.A. 60-2106 dictates

publication of opinions that decides new questions of

law. The unpublished opinion in 03-90202-A addresses

issues of first impression by limiting the applicability

of K.S.A. 40-2, 118 to criminalize fraudulent acts com-

mitted against insurers and their agents. When the

19

Appellate Court opined that the intended statutory

victim is the insurer — not the insured, it clearly decided

new questions of law thus making the opinion deserving

of publication.

The petitioner also asserted that K.S.A. 60-2106 also

dictates publication of opinions that are valuable as pre-

cedents. The opinion is the first, and only, opinion

conceming the special statute K.S.A. 40-2, 118. As such,

it would be extremely valuable as a precedent thus clearly

met statutory grounds for publication.

The petitioner cited Kan. Ct.R. Anno. 7.04(a) that,

like K.S.A. 60-2106, dictates publication of opinions that

establishes new rules of law. The Appellate Court’s

opinion concluding that K.S.A. 40-2, 118 is a criminal

statute that enables an insurer to seek restitution for

fraudulent insurance acts but does not provide that an

insured person can bring a civil lawsuit against an insurer

to recover restitution clearly establishes new rules of law

that meets cited grounds for publication.

He also cited Kan. Ct.R. Anno. 7.04(b) that dictates

publication of opinions that involves legal issues contin-

uing public interest. The complex, tripartite relationship

among (i) statutes, case laws, and regulations obligating

purchase of liability insurance; (ii) the multibillion dollar

insurance industry itself; and (iii) the insurance industry’s

command clients, the general public; makes the unpub-

lished opinion a legal issue of profound continuing public

interest deserving of publication.

The petitioner also cited Kan. Ct.R. Anno. 7.04(c)

that dictates publication of opinions that explains exist-

ing law. The Appellate Court’s opinion explained exist-

ing law established by Noel v. Pizza Hut, Inc., 15 Kan.

App.2d 225, 231, 805 P.2d 1244 (1991), rev. denied

20

248 Kan. 996 (1991). When the appellate court denied

the petitioner’s claim for relief, not only on theories

which were espoused by the petitioner, but on any pos-

sible theory that could be “‘divined” by the court, it

effectively explained that the Noel precedent could be

discretionarily applied by the court.

The petitioner also cited Kan. Ct.R. Anno. 7.04(a)

that dictates publication of opinions that modify rules

of law. Russell instructs: “fA court looks to the sub-

stance and not to the form of a pleading and judges it by

its allegations and not by the title it bears.”” Russell v.

Bovard, 113 P.2d 1064, 153 Kansas 729 (1941). See

also: Re: Shirk Estate, 363 P.2d 461, 188 Kan. 513

(1961). The Appellate Court made modifications in

rules of law in the Russell and Shirk cases with its opin-

ion that the District Court was correct in judging the

petitioners’ pleading only by the title it bore. This mod-

ification of rules of law clearly met the standards set for

publication.

The petitioner also cited Kan. Ct.R. Anno. 7.04(d)

that dictates publication of opinions that applies an estab-

lished rule of law to a factual situation significantly dif-

ferent from that in published opinions of the courts of

Kansas. The situation of an insurance underwriter alter-

ing an insurance application and the situation of an

insurance company altering an issued insurance policy

to unilaterally substitute one named insured for another,

are obviously factual situations significantly different

from published opinions in Kansas thus deserving of

publication.

The petitioner also cited Kan. Ct.R. Anno. 7.04(e)

that dictates publication of opinions that resolve an

apparent conflict of authorities. It is quite obvious that

— - eee etl

21

Robert C, Clause, Special Assistant Attorney General,

Kansas Insurance Department, does not hold the opin-

ion that the Fraudulent Insurance act is limited to “. . .

to criminalize fraudulent acts committed against insur-

ers and their agents.” (App. 6a). The publication of

this opinion would have resolved the apparent conflict

of opinions between and among the office of the Kansas

Insurance Commission, the office of the Kansas Attorney

General, and the Kansas Judicial System.

The Kansas Supreme Court simply ignored reviewed

mandated by Kan. Ct.R. Anno. 7.04(a)(b)(c)(d) and (e)

and K.S.A. 60-2106 and summarily denied the peti-

tioner’s motion to publish. (App. 9a-10a). Reasonable

people can justifiably conclude that the Kansas Judicial

System’s blatant rejection of state statutes, case laws,

and their own rules is habitual. Only this Court can stop

these odious practices.

IV.

THIS CASE SHOULD BE NEITHER CLOSE NOR DIF-

FICULT TO DECIDE. NO FACTS ARE IN DISPUTE

BY EITHER PETITIONER OR RESPONDENT. GRANT-

ING THE WRIT WILL CREATE A VEHICLE NECESSARY

TO REINSTATE THE RULE OF LAW IN KANSAS.

The record in this case is quite small but the impact of

this Court granting the writ will be tremendous. With all

due respect, U.S. citizens under the jurisdiction of the

laws of the state of Kansas can not be expected to endure

the negative effects of dispositive opinions made without

regard to the rule of law. Faux opinions that would

decide new questions of law; be valuable as precedents;

establish new rules of law; involve legal issues contin-

uing public interest; explain existing laws; modify exist-

ing laws; apply established rules of law to a factual situa-

22

tions significantly different from that in published opin-

ions of the courts of Kansas; resolve apparent conflict

of authorities yet go unpublished should not be tolerated

in the Kansas Judicial System.

With all due respect, reasonable people can logically

conclude that the Kansas Judicial System does not

believe itself bound by principles generally accepted as

rules of law. The Kansas Judicial System’s refusal to

adhere to state statutes, numerous precedents, and the

Kansas Judicial System’s own rules can only lead reason-

able people to conclude that the Kansas Judicial System

is substituting the rule of individual notions for the rule

of law.

Reasonable people can only conclude that the Kansas

Judicial System’s disregard for its obligations under state

statutes and its own rules is systemic. This petition

should be granted so that this Court can address and

rectify the Kansas Appellate Courts’ ruling that, if per-

mitted to stand, portends a class of U.S. citizens will

never be able to avail themselves of their right to equal

protection of the laws guaranteed them by the U.S.

Constitution.

23

CONCLUSION

For the foregoing reasons, the petitioner respectfully

submits that this Petition for a Writ of Certiorari to the

Supreme Court of Kansas should be granted.

Respectfully submitted,

CHARLES J. SELLENS

Uwabu Sakae-machi 10-7

Komagane-Shi

Nagano-Ken 399-4115

Japan

Phone & Fax:

8 1-265-82-4417

Petitioner Pro Se.

-

la

APPENDIX A

[Filed May 26, 2004]

IN THE SUPREME COURT

OF THE STATE OF KANSAS

SUPREME COURT ORDER

DISTRICT CASE NO. 99C20 KE

CHARLES J. SELLENS PRO SE

UWABU SAKAE-MACHI 10-7

KOMAGANE-SHI NAGANO-KEN

399-4115

JAPAN

_ Case No. 03-90202-A

CHARLES J. SELLENS,

Appellant,

AMERICAN STATES INSURANCE COMPANY,

Appellee.

You are hereby notified of the following action

taken by the Court:

Petition for Review by Charles J. Sellens.

Considered by the Court and denied.

2a

DATE: 05/26/2004.

CAROL G. GREEN

CLERK

3a

APPENDIX B

[NOT DESIGNATED FOR PUBLICATION]

No. 90,202

IN THE COURT OF APPEALS

OF THE STATE OF KANSAS,

CHARLES J. SELLENS,

Appellant,

V.

AMERICAN STATES INSURANCE COMPANY,

Appellee.

MEMORANDUM OPINION

Appeal from Kearny District Court; THOMAS F.

RICHARDSON, judge.

Opinion filed March 5, 2004. Affirmed.

Charles J. Sellens, appellant pro se.

Arthur S. Chalmers, of Hite, Fanning & Honeyman, LLP.,

of Wichita, for appellee.

Before GREENE, P.J., ELLIOT, J., and KNUDSON,

S.J.

Per Curiam: Charles J. Sellens sought a declaratory

judgment that American States Insurance Company

(ASIC) violated provisions of the Fraudulent Insurance

Act, K.S.A. 40-2, 118 et seg. Sellens appeals from the

4a

district court’s decision to grant ASIC’s motion to dis-

miss for failure to state a claim upon which relief can

be granted.

We affirm.

Factual and Procedural Overview

Sellens is a U.S. citizen but has resided and worked in

Japan since 1992. On October 15, 1999, Sellens filed his

pro se petition for declaratory relief against ASIC, claim-

ing that ASIC had altered an application for general lia-

bility insurance made in August 1996 by International

Education Services, Inc. (IES), a construction company

for which Sellens was president. The petition claimed

that IES was the sole applicant for the insurance and that

ASIC altered the application by listing Sellens individ-

ually as the insured, without the knowledge or permis-

sion of IES or Sellens. Upon receipt of the policy on

December 11, 1996, Sellens confronted his agent regard-

ing the error and requested cancellation of the policy on

the ground that it was “not issued as requested.”” The

policy was canceled and the unused premium was re-

turned.

On November 10, 1996, Brian Groth allegedly suf-

fered an injury while working for IES and Sellens, and

on November 25, 1997, Groth brought a suit against

both IES and Sellens, among others. Sellens made de-

mand for ASIC to defend and indemnify, but advised

ASIC that he had not been served. ASIC retained an

attorney who entered an appearance on behalf of all

defendant, including Sellens. As a result of these ac-

tions, Sellens claims that he was damaged by being made

a party when he had not and probably would not have

been served. Moreover, ASIC ultimately refused to

defend or indemnify IES. Finally, the suit resulted in a

lis pendens on Sellens’ model home in Kansas.

5a

Sellens’ petition for declaratory relief claimed that

ASIC violated K.S.A. 40-2,118 and requested restitution

and reimbursement of his legal costs. ASIC responded

to the suit with a motion to dismiss for failure to state

a claim, suggestion that the statue was not intended to

protect insureds and did not create a private cause of

action in any event.

On December 26, 2002, the district court filed its

memorandum decision dismissing the action for failure

to state a claim upon which relief could be granted,

reasoning in part:

“K.S.A. 40-2,118 is a part of the Fraudulent Insur-

ance Act. This Act is intended to criminalize fraud

against an insurer and to extend immunity to those

who report the fraud. It deals with fraud in appli-

cations for insurance, brought in connection with

premium ratings, and fraudulent claims. The

intended victim in the statutes is the insurer and its

agents. The Act further provides for criminal penal-

ties to be assessed to one who perpetrates such fraud

against an insurer or an agent. It also provides for

restitution for financial losses sustained by the

insurer or any other person as a result of fraud

against an insurance company. The Act is criminal

in nature rather than civil. This Act does not create

a private cause of action in favor of the Plaintiff.”

Sellens perfected this appeal.

Did the District court Properly Construe K.S.A. 40-2,

118?

Sellens claims that the court erred in construing K.S.A.

40-2, 118 as supporting no private cause of action for an

insured under these circumstance. ‘In reviewing the dis-

trict court’s construction of the statute, our review is

ee ee ee a

6a

unlimited. See Williamson v. City of Hays, 275 Kan. 300,

305, 64 P.3d 364 (2003).

Sellens claims that the following statutory language

allows him to maintain his private cause of action under

the statute:

“For purposes of this act a ‘fraudulent insurance

act’ means an act committed by any person who,

knowingly and with intent to defraud, presents,

causes to be presented or prepares with knowledge

or belief that it will be presented to or by an insur-

er, purported insurer, broker or any agent thereof,

any written statement as part of, or in support of,

an application for the issuance of, or the rating of

an insurance policy for personal or commercial

insurance ... .” (Emphasis added.) K.S.A. 40-

2, 118(a).

Sellens alleges that the “‘to or by an insurer” language

specifically contemplates that an insured may maintain

an action against an insurer for an insurer’s fraudulent

acts in altering an application for insurance. Sellens’

argument is without merit.

K.S.A. 40-2, 118 is clear in its design to criminalize

fraudulent acts committed against insurers and their

agents. We agree with the district court that the intend-

ed statutory victim is the insurer — not the insured.

We decline to construe the act as proscribing fraudu-

lent acts of an insurer; Sellens’ proposed construction is

simply not supported by the statutory language or the

obvious legislative intent.

We also agree with the district court in concluding that

K.S.A. 40-2, 118 is a criminal statute. Although the act

enables an insurer to seek restitution for fraudulent

insurance acts, it does not provide that an insured per-

son can bring a civil lawsuit against an insurer to recover

;

7a

restitution. We reject Sellens’ claims of error by the

district court in construing K.S.A. 40-2, 118 and we

affirm the district court in this regard.

Did the District Court Err in its Failure to Determine

Whether Facts stated in the Petition Would Support a

Claim under Any Other Possible Theory?

Sellens next claims that the district court erred in

failing to determine whether the facts stated in his

petition would entitle him to relief under any other

possible legal theory, citing Keith v. Schiefen-Stockham

Insurance Agency, Inc., 209 Kan. 537, 540, 498 P.2d

265 (1972). Sellens claims that the facts pled and

reasonable inferences therefrom would support relief

under both tort and contract theories.

We acknowledge at the outset that in considering

a motion to dismiss for failure to state a claim, the dis-

trict court has a duty to determine whether facts pled

by a plaintiff state a claim for relief, not only on the

theory which may be espoused by plaintiff, but on any

possible theory that can be “divined” by the court.

Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805

P.2d 1244 (1991), rev. denied 248 Kan. 996 (1991).

We decline to apply this rule here because: (i) Sellens’

initial petition was entitled “Petition for Declaratory

Relief”? and sought the exclusive remedy of declaratory

relief, together with restitution “pursuant to [K.S.A.

40-2, 118]” and legal costs; accordingly, we decline to

impose a duty on the court to divine other theories

that might support entirely different relief (damages)

that were never alleged or requested in plaintiff's peti-

tion; (ii) in his response to the motion to dismiss, Sellens

stated that “the could have failed petitions against Amer-

8a

ican States and the several individual and entities identi-

fied in this brief alleging tort damages”’ but he did not do

so because he “wanted to limit litigation”; accordingly,

we decline to impose a duty on the court to divine theo-

ries that were intentionally omitted by the plaintiff for

some perceived strategic advantage; (iii) at the hearing

of the motion, Sellens advised the court that he had filed

a separate action against ASIC alleging tort and contract

claims and seeking damages; although the court suggested

that the actions should probably be “‘combined,”’ Sellens

ultimately concurred with the court’s suggestion that the

motion to dismiss the declaratory judgment action should

be decided first; we decline to apply the Noel duty where

the plaintiff has already split his cause of action, and

other theories that might be ‘‘divined” by the court are

presumably pending in the second action. See Shelton

v. DeWitte, 271 Kan. 831, 836-37, 26 P.3d 650 (2001).

For these reasons, the district court did not err in fail-

ing to determine whether Sellens’ petition might state a

claim for relief under other theories.

Did the District Court Commit Other Procedural Error?

Sellens’ brief on appeal attempts to frame other issues,

including some that are simply incomprehensible. Most if

not all of the remaining claims relate to minor procedural

error. We have examined all such claims of error and

conclude that no material procedural error was commit-

ted and that Sellens suffered no legal prejudice as a result

of these claims of error. We note in conclusion, however,

that we share Sellens’ consternation over the delays en-

countered in achieving resolution of this litigation.

Affirmed.

9a

APPENDIX C

[ Filed Mar 30 2004]

IN THE SUPREME COURT

OF THE STATE OF KANSAS

SUPREME COURT ORDER 99C20 KE

District Case No.

CHARLES J. SELLENS PRO SE

UWABU SAKAE-MACHI 10-7

KOMAGANE-SHI NAGANO-KEN

399-4115

JAPAN

CASE NO. 03-90202-AS

CHARLES J. SELLENS,

Appellant,

AMERICAN STATES INSURANCE COMPANY,

Appellee.

You are hereby notified of the following action taken

by the Court:

Motion to publish opinion by Charles J. Sellens Pro Se.

Considered by the Court and denied.

10a

Memorandum in Support noted.

Date: 3/30/2004.

CAROL G. GREEN

CLERK