United States District Court, D. Connecticut
RAYMOND G. GABRIEL, KIMBERLY A. GABRIEL Plaintiffs,
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.
RULING ON DEFENDANT'S MOTION FOR SUMMARY
A. BOLDEN UNITED STATES DISTRICT JUDGE
and Kimberly Gabriel sued Liberty Mutual Fire Insurance
Company after Liberty Mutual denied coverage for crumbling
basement walls in the Gabriel's Ellington Home. The
lawsuit alleged breach of contract, breach of the covenant of
good faith and fair dealing, and unfair and deceptive trade
practices. Liberty Mutual now moves for summary judgment on
reasons discussed below, Liberty Mutual's motion for
summary judgment is GRANTED in part and
DENIED in part.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
2006, Raymond and Kimberly Gabriel (“Plaintiffs”
or the “Gabriels”) bought a home at 4 Grant Road
in Ellington, Connecticut, Def. Stmt. Material Facts
(“Def. SMF”) ¶ 2, ECF No. 51, and have lived
there ever since. Raymond Gabriel Dep. at 32, Def. SMF, Ex. J
(“Raymond Gabriel Dep.”). When the Gabriels
bought the property, built in 1984, they hired a home
inspector. Raymond Gabriel Dep. at 9:1-10. The home inspector
addressed several cracks in the basement walls and suggested
that the Gabriels consult with an engineer about them.
Raymond Gabriel Dep. at 9-17; Kimberly Gabriel Dep.
(“Kimberly Gabriel Dep.”) at 11:9-17, Pls. Stmt.
Material Facts, Ex. AA, ECF No. 55-1. According to the
Gabriels, “[w]e consulted with a local contractor who
told us that there was nothing to worry about and the
condition was normal.” Interrogatories at 9, Def. SMF,
Gabriels obtained homeowners' insurance from Liberty
Mutual (“Liberty” or “Defendant”).
Their coverage began shortly after they purchased the
property in 2006 and continued until after they filed the
Complaint. Pls. Stmt of Material Fact (“Pl. SMF”)
¶ 7-8, ECF No. 55; see generally LibertyGuard
Deluxe Homeowners Policy (“Policy”), Def. SMF,
Ex. A. The operative policy in this case extended from
October 18, 2013 until October 18, 2014, and covered the
“risk of direct loss” to the dwelling, other
structures, and personal property owned by the Gabriels.
Id. at § 1.
policy also included a number of exclusions. First, the
policy excluded coverage for damages caused by
“freezing, thawing, pressure, or weight of water or ice
[to a] foundation, retaining wall, or bulkhead.”
Second, it excluded coverage for “inherent vice, latent
defect, mechanical breakdown;” and “settling,
shrinking, bulging or expansion, including resultant
cracking, of pavements, patios, foundations, walls, floors,
roofs, or ceilings.” Id. at 6.
general matter, the policy also excluded coverage involving
collapse. Id. at 1. The policy did, however, contain
a carve-out for certain types of collapse under a separate
section, Id. at 6:
We insure 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:
a. Perils Insured Against in COVERAGE C - PERSONAL PROPERTY.
These perils apply to covered buildings and personal property
for loss insured by this additional coverage;
b. Hidden decay;
c. Hidden insect or vermin damage;
d. Weight of contents, equipment, animals or people;
e. Weight of rain which collects on a roof; or
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. This coverage does not increase the
limit of liability applying to the damaged covered property.
Id. at § 8.
2014, the Gabriels began having problems with one of the
doors in the first floor. Raymond Gabriel Dep. at 20:1-5.
Several of the doors and windows on the first floor had
trouble closing, and the floors were uneven in several
different places. Id. at 31-32. As a result, Mr.
Gabriel examined the floor joists in the basement.
Id. at 20:1-5. He noticed “there seemed to be
more cracks and they seemed to be different than what I
recalled.” Id. The Gabriels then consulted
with several contractors about the cracks; the contractors
informed them that their basement might be constructed with
defective concrete from the JJ Mottes Concrete Company.
Id. at 31:1-9.
these contractors, William Neal, an engineer, wrote that
“the most likely cause of the foundation
distress” was a “chemical reaction between alkali
aggregate and silica in the concrete mix. It typically causes
this type of distress 15 to 20 years after the foundation is
poured. The [reaction] will continue to deteriorate the
concrete and the basement walls will continue to bulge inward
until they structurally fail.” Neal Report at 1, Def.
SMF, Ex. G.
Gabriels then filed a claim with Liberty Mutual in early
July, 2014. Def. SMF ¶ 8. On July 22, 2014, five days
after a special investigator from Liberty Mutual visited the
property and documented the damage to the basement, Liberty
Mutual denied coverage for the claim. Def. SMF ¶¶
10-11. In its denial letter, the company cited the insurance
policy's collapse provision, as well as several other
exclusions related to water damage, earth movement, and
construction defects. Id.
October 14, 2014, the Gabriels filed the Complaint in this
case. Count I alleges breach of contract, Count II alleges
breach of the implied covenant of good faith and fair
dealing, and Count III alleges violations of the Connecticut
Unfair Insurance Practices Act, Conn. Gen. Stat. §
38a-815, et seq. (“CUIPA”) and the Connecticut
Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a,
et seq. (“CUTPA”). Id.
Mutual moved under Federal Rule of Civil Procedure 12(b)(6)
to dismiss the Complaint in its entirety for failure to state
a claim. See Def. Mot. to Dismiss, ECF No. 13. The
Court denied the Motion on September 28, 2015, finding that
the Gabriels had plausibly alleged all three counts. See
Gabriel v. Liberty Mut. Fire Ins. Co., No.
3:14-cv-01435-VAB, 2015 WL 5684063 (D. Conn. Sept. 28, 2015).
The Court also denied certifying the question of what
constituted a substantial impairment to the Connecticut
Supreme Court, and instead found that Plaintiffs had
adequately alleged a collapse. The Court further determined
that the terms “foundation” and “retaining
wall, ” as used in the policy, were ambiguous and