Wegner v. Milwaukee Mutual Ins. Co.,

479 N.W.2d 38 (1991)

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Nature of the Case

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Facts

The police were staking out some narcotics dealers. Before arrests could be made, the suspects spotted the police and fled in their car at a high rate of speed with the police in pursuit. The suspects abandoned their vehicle, separated and fled on foot. The police exchanged gunfire with one suspect as he fled. This suspect entered the house of P and hid in the front closet. P's granddaughter, who was living at the house, and her fiancé then fled the premises and notified the police. The house was surrounded. The police SWAT team was called in. The police tried to establish contact with the suspect until around 10:00 p.m. They then fired at least 25 rounds of chemical munitions or 'tear gas' into the house in an attempt to expel the suspect. They broke virtually every window in the process. They also threw in three concussion or 'flash-bang' grenades into the house to confuse the suspect. The police then entered the home and apprehended the suspect crawling out of a basement window. There was extensive damage to P's house. A pink film from the tear gas covered the walls and furniture; some walls were dented from the impact of the tear gas canisters; one tear gas canister went through one of the upstairs walls. PP claimed damages of $71,000. The City denied relief. P's insurance Milwaukee Mutual paid $26,595.88 for structural damage, $1,410.06 for emergency board and glass repair and denied coverage for the rest of the claim. Milwaukee Mutual is subrogated to the claims of P against D to the extent of its payments under the policy. P sued D and Milwaukee Mutual (D1) to recover the remaining damages. P sued D for trespass and a compensable taking under Minn. Const. art. I, § 13. D1cross-claimed against D for its subrogation interest and any additional amounts the insurer may be found liable for in the future. The district court granted partial summary judgment in favor of D on the 'taking' issue, holding that 'Eminent domain is not intended as a limitation on [the] police power.' P and D1 appealed the trial court's determination. The court of appeals affirmed.