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England v. Amica Mutual Ins. Co.

United States District Court, D. Connecticut

September 11, 2017

CECILY I. ENGLAND Plaintiff,
v.
AMICA MUTUAL INS. CO. Defendant.

          RULING ON MOTION TO DISMISS

          MICHAEL P. SHEA, U.S.D.J.

         Plaintiff Cecily I. England filed this action in state court against her homeowner's insurance provider, Amica Mutual Insurance Company (“Amica”), seeking damages for its failure to provide coverage for damage to the basement walls of a residence she owns. (ECF No. 1-1.) Amica removed the case to this court on November 29, 2016. (ECF No. 1.) On December 6, 2016, Amica moved to dismiss the case, arguing that the alleged loss was not covered by any of the policies issued to Ms. England and that Ms. England's claim was untimely. (ECF No. 10.) For the reasons set forth below, the motion is GRANTED.

         I. Factual Allegations

         According to the allegations in the complaint, Ms. England owns a property located at 1 Fernwood Drive, Bolton, Connecticut (“the Property”). (ECF No. 1-1 ¶ 1.) Amica has insured the Property at all relevant times. (Id. ¶ 3.) Ms. England has made all required insurance payments. (Id. ¶ 4.)

         “While moving items” on an unspecified date, Ms. England “observed visible cracking patterns in the basement walls” of the Property. (Id. ¶ 5.) On October 30, 2014, a structural engineer inspected the basement of the Property. (Id. ¶ 6.) In a report dated November 3, 2014, the engineer concluded that “the concrete deterioration and cracking was caused by a chemical reaction occurring in the concrete, ” and recommended that the basement walls be replaced (Id. ¶ 7.) At the time Ms. England filed the complaint, the cost of repair was expected to be approximately $60, 000. (ECF No. 1-1 ¶ 7.)[1]

         At an unspecified date, Ms. England made a claim for coverage under her homeowner's policy. (Id. ¶ 8.) At the time Ms. England filed the complaint, Amica had not made a decision on her claim. (Id. ¶ 12.) In her opposition brief, Ms. England represented that she still had not received a decision from Amica. (ECF No. 20 at 1-2.)[2] Ms. England alleges that the concrete in her home “continues to deteriorate, ” causing damage to the basement walls. (ECF No. 1-1 ¶ 14.)

         Ms. England alleges in the complaint that under “Section I, ‘Perils Insured Against, '” the homeowner's policy covers “‘direct physical loss to the property'; in this case, the chemical reaction that occurred in the concrete.” (Id. ¶ 9.) Ms. England further alleges that under the policy, “losses due to chemical reaction are not excluded from policy coverage.” (Id. ¶ 10.) Ms. England also alleges that “under Section I, ‘Property Coverage', ” the policy covers “‘Collapse' of the basement walls consistent with the progressive deterioration of the concrete caused by the chemical reaction.” (Id. ¶ 11.) Ms. England did not attach to her complaint the policy she relies on.

         Amica attached to its motion to dismiss five policies issued to insure the Property, one for each year dating from April 7, 2010, through April 7, 2015 (collectively, “the Policies”).[3] Each of the Policies includes a section titled “Section I - Property Coverages, ” which contains portions titled “Coverage A - Dwelling, ” “Coverage B - Other Structures, ” “Coverage C - Personal Property, ” “Coverage D - Loss of Use, ” and “Additional Coverages.” (See ECF Nos. 10-2 - 10-6.)

         In the policies dating from April 7, 2012, through April 7, 2015 (collectively, “the 2012 - 2015 Policies”), the portion titled “Additional Coverages, ” as amended by an endorsement titled “Special Provisions - Connecticut, ” specifies:

8. Collapse
. . .
b. The coverage provided under this Additional Coverage - Collapse applies only to an abrupt collapse.
c. For the purpose of this Additional Coverage - Collapse, abrupt collapse means 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 purposes.
d. This Additional Coverage - Collapse does not apply to:
(1) A building or any part of a building that is in danger of falling down or caving in;
(2) A part of a building that is standing, even if it has separated from another part of the building; or
(3) A building or any part of a building that is standing, even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion.
e. We insure for direct physical loss to covered property involving abrupt collapse of a building or any part of a building if such collapse was caused by one or more of the following:
(1) The Perils Insured Against;
(2) Decay, of a building or any part of a building, that is hidden from view, unless the presence of such decay is known to an insured prior to collapse;
. . .
(6) Use of defective material or methods in construction, remodeling or renovation.
f. Loss to a[] . . . foundation . . . 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.

(See, e.g., ECF No. 10-6 at 42-43.)

         Under “Section I - Perils Insured Against, ” the 2012 - 2015 Policies specify with respect to “Coverage A - Dwelling And Coverage B - Other Structures”:

1. We insure against direct physical loss to property described in Coverages A and B.
2. We do not insure, however, for loss: a. Excluded under Section I - Exclusions;
b. Involving collapse, including any of the following conditions of property or any ...

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