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Roy v. Liberty Mutual Fire Insurance Co.

Superior Court of Connecticut, Judicial District of Tolland

February 22, 2017

DAVID R. ROY
v.
LIBERTY MUTUAL FIRE INSURANCE CO.

          MEMORANDUM OF DECISION: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#126)

          Cobb, J.

         This is 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.[1] 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 arguments.

         The 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 material fact.

         The 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.

         Having 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 counts.

         The court finds that the following material facts are undisputed:

         The 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.

         The plaintiff insured the home with the defendant from 1998 to August 29, 2014; afterwards, the home was insured by the Covenant Insurance Company.[2] 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.

         For 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:

         We 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 Coverage 8;
2. Caused by:
. . . .
(6) Settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings; . . . .

         The 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.

         Collapse does not include settling, cracking, shrinking, bulging or expansion.

         The terms " collapse, " " foundation, " and " retaining wall" are not defined in the policy.

         The 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.

         When 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 that's deteriorating."

         The 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 ...


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