United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
WARREN W. EGINTON SENIOR U.S. DISTRICT JUDGE
In this action, plaintiffs Dennis Roberge and Kristi Roberge challenge the defendant Amica Mutual Insurance’s failure to provide coverage for the damage to basement walls of their home. For the following reasons, the motion to dismiss will be denied.
For purposes of ruling on this motion to dismiss, the Court assumes that all of the factual allegations in the complaint are true.
Plaintiffs assert that the basement walls of their home have collapsed due to pattern cracking caused by a chemical compound found in certain basement walls constructed in the late 1980s and early 1990s.
Defendant issued an insurance policy on their home. In its Section 1, the policy stated that it does not insure, for loss “involving collapse” except as provided further in Section E.8. According to Section E.8., coverage applies to an “abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose.” E.8.e. states that the policy insures for “physical loss to covered property involving abrupt collapse ... if such collapse was caused by ... use of defective material or methods in construction, remodeling or renovation.” Section E.8.f. provides: “Loss to an awning, fence, patio, deck, pavement, swimming pool, underground pipe, flue, cesspool, septic tank, foundation, retaining wall, bulkhead, pier, wharf or dock is not included under e. (2) through (6) above unless the loss is a direct result of the collapse of a building or any part of a building.”
Plaintiffs allege that a substantial collapse has occurred due to materials used to construct the basement walls of their home.
The function of a motion to dismiss is “merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff maintains that the policy provides coverage for a collapse caused by hidden decay or defective materials used in the construction of the building. Defendant asserts that the basement walls are part of the “foundation” and thereby excepted from coverage under E.8.f. relevant to collapse coverage. Defendant maintains further the plaintiffs have not alleged a plausible claim that satisfies the policy’s coverage for abrupt collapse or that their home cannot be occupied for its intended purpose. Finally, defendant argues that plaintiffs have failed to allege that the damage occurred during a period applicable to defendant’s policy coverage.
“If an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.” Moore v. Continental Cas. Co., 252 Conn. 405, 409 (2000). Insurance policy words must be accorded their ordinary and natural meaning, and any ambiguity in the terms of the policy must be construed in favor of the insured. Hansen v. Ohio Cas. Ins. Co., 239 Conn. 537, 542 (1996). "The determinative question is the intent of the parties, " as disclosed by the policy terms viewed in their entirety. Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399 (2000). A policy should be taken as a whole and all of its relevant provisions considered in connection with each other. A.M. Larson Co. v. Lawlor Ins. Agency, 153 Conn. 618, 622 (1966).
1. Exclusion for Loss to Foundation
As defendant recognizes, this Court has held as ambiguous similar language in other policies excluding loss to a “foundation.” See Metsack v. Liberty Mutual Fire Insurance Co., 2015 WL 5797016, *6 (D. Conn. Sept. 30, 2015) (citing cases). These cases have found that the term foundation could be reasonably construed to refer to the “footings” of a structure or the lowest load-bearing part of the building rather than a “stone or concrete structure” that supports a building, which definition could encompass basement walls. Id. Here, defendant points out that the policy refers to both footings and foundations in other provisions and that the policy thereby contemplates that footings are distinct structures from the foundation. In Metsack, this Court considered and rejected an analogous argument because a house may or may not have a separate “footing” and “foundation” depending upon its construction:
At the time the subject premises were constructed it was a customary building practice in Connecticut to construct a home by first excavating the site, then erecting footings consisting of a concrete footprint of the house, erecting a basement or foundation consisting of a horizontal base or floor and vertical walls on top of the footings which serves as the home's basement, and erect the above-ground floors and walls of the home on top of the basement. Employing that method of construction, the footings beneath the basement could constitute a separate structural component serving as the structural support beneath the basement for the house. In such circumstances, a reasonable trier of fact could conclude the “footings” to be the “foundation.” This interpretation would not render either term superfluous, because, there may be circumstances in which a house has foundational walls, supported by footings, without any ...