United States District Court, D. Connecticut
CECILY I. ENGLAND Plaintiff,
AMICA MUTUAL INS. CO. Defendant.
RULING ON MOTION TO DISMISS
MICHAEL P. SHEA, U.S.D.J.
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.
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.)
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.)
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.) Ms. England alleges that the concrete in
her home “continues to deteriorate, ” causing
damage to the basement walls. (ECF No. 1-1 ¶ 14.)
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
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”). 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.)
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:
. . .
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
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
(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.)
“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 ...