Superior Court of Connecticut, Judicial District of Tolland
DAVID R. ROY
LIBERTY MUTUAL FIRE INSURANCE CO.
MEMORANDUM OF DECISION: DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (#126)
one of many cases in Tolland County involving claims of
extensive pattern cracking to basement walls caused by a
chemical compound in the concrete provided by the J.J. Mottes
Concrete Company that was used to construct the basement
walls of numerous homes, including the
plaintiff's. This case arises out of an insurance
policy coverage dispute between the plaintiff homeowner,
David R. Roy, and the defendant insurer, Liberty Mutual Fire
Insurance Company, regarding whether the plaintiff's 2014
insurance policy, issued by the defendant, provides coverage
for damage to the plaintiff's basement walls that he
claims resulted in a covered loss - that is a "
collapse." The defendant claims that the policy does not
cover the plaintiff's loss because he has not sustained a
covered " collapse" under the policy, among other
plaintiff's complaint is in two counts; breach of
contract, and violation of the Connecticut Unfair Insurance
Practice Act (CUIPA) and the Connecticut Unfair Trade
Practices Act (CUTPA). The defendant has moved for summary
judgment on both counts of the complaint claiming, as to
count one, the breach of contract claim, that the
plaintiff's loss is not covered under the policy, and,
therefore, there is no breach of contract. Furthermore, the
defendant contends that, as to count two, the CUTPA/CUIPA
claim, the plaintiff has failed to plead and prove that it
relied on other similar crumbling foundation claims to deny
the plaintiff's claim as part of a general business
practice, and, therefore, there is no genuine issue of
plaintiff opposes the defendant's motion for summary
judgment arguing that his home has sustained a covered loss
under the policy and that the record establishes that the
defendant wrongfully denied his claim as part of a general
business practice to wrongfully deny similar claims. The
plaintiff argues that both claims involve disputed issues of
material fact that must be determined by the jury.
considered the parties written submissions and oral
arguments, the court concludes that as to count one, disputed
issues of material fact exist that must be determined by the
jury. As to count two, the defendant has not established that
the plaintiff's allegations are insufficient and has not
met its burden to establish that it is entitled to summary
judgment. Accordingly, summary judgment is denied as to both
court finds that the following material facts are undisputed:
plaintiff built his home at 18 Gulf Road in Stafford Springs
in 1998. The concrete used to construct the basement walls
was supplied by the J.J. Mottes Company.
plaintiff insured the home with the defendant from 1998 to
August 29, 2014; afterwards, the home was insured by the
Covenant Insurance Company. The 2014 policy, provided
by the defendant and at issue here, is an "
occurrence" policy and provided coverage for covered
losses up to $476, 200.
purposes of this motion, the defendant relies on two sections
of the policy. Section I of the policy, entitled "
PERILS INSURED AGAINST, " in " COVERAGE A --
DWELLING and COVERAGE B -- OTHER STRUCTURES, " provides
in pertinent part:
insure against risk of direct loss to property described in
Coverages A and B only if that loss is a physical loss to
property. We do not insure, however, for loss:
1. Involving collapse, other than as provided in Additional
2. Caused by:
. . . .
(6) Settling, shrinking, bulging or expansion, including
resultant cracking, of pavements, patios, foundations, walls,
floors, roofs or ceilings; . . . .
second section relied upon by the defendant is contained in
the section entitled " ADDITIONAL COVERAGE, "
identified above, and provides in pertinent part:
8. Collapse. We ensure for direct physical loss to covered
property involving collapse of a building or any part of a
building caused only by one or more of the following: . . .
b. Hidden decay; ...
f. Use of defective material or methods in construction,
remodeling or renovation if the collapse occurs during the
course of the construction, remodeling or renovation;
Loss to an awning, fence, patio, pavement, swimming pool,
underground pipe, flue, drain, cesspool, septic tank,
foundation, retaining wall, bulkhead, pier, wharf or dock is
not included under items b., c., d., e., and f. unless the
loss is a direct result of the collapse of a building.
does not include settling, cracking, shrinking, bulging or
terms " collapse, " " foundation, " and
" retaining wall" are not defined in the policy.
plaintiff discovered the damage to his basement walls when he
was moving Tupperware bins in the unfinished storage area of
his basement, which had been there for some time and had
obscured the view of the walls. The plaintiff observed
horizontal and vertical cracks in the concrete walls of the
basement, which were jagged, in a spider web pattern.
Concerned about these cracks, the plaintiff consulted with
his brothers, who had helped him build the home and were
familiar with persons in Tolland County who had similar
problems with their basement walls. Although the plaintiff
reported the claim to the defendant on September 22, 2014, it
is disputed whether the plaintiff discovered the pattern of
cracking in his home in August or September of 2014.
the plaintiff reported his claim to the defendant he said:
" I've got cracks, " " my basement wall
collapsed, " and it was caused by " bad concrete
defendant investigated the plaintiff's claim by sending a
structural engineer to evaluate the plaintiff's basement
walls. In his report, the defendant's engineer stated
that the damage to the plaintiff's basement walls was the
result of " shrinkage and settlement cracks" that
are typical, not structural, or " lateral earth
pressures." As a result of its expert report, the
defendant denied the plaintiff's claim; asserting in the
denial letter that the loss was not covered due ...