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Makufka v. CSAA Fire & Casualty Ins. Co.

United States District Court, D. Connecticut

January 18, 2018

HOWARD & DONNA MAKUFKA Plaintiffs,
v.
CSAA FIRE & CASUALTY INS. CO, Defendant.

          MEMORANDUM OF DECISION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Hon. Vanessa L. Bryant United States District Judge.

         I. Introduction

         Before the Court is Defendant CSAA Fire & Casualty Insurance Company's (“CSAA” or “Defendant”) Motion FOR Summary Judgment as to all counts of the Complaint, which allege breach of contract (Count One), breach of the duty of good faith and fair dealing (Count Two), and violation of the Connecticut Unfair Trade Practices Act and the Connecticut Unfair Insurance Practices Act (Count Three) [Dkt. 34.] Plaintiffs Howard and Donna Makufka (“Plaintiffs”) oppose the Motion. [Dkt. No. 39.]. For the reasons discussed below, Defendant's Motion is GRANTED.

         II. Factual Background

         Plaintiffs purchased a home located at 23 Sandy Beach Road, Ellington, Connecticut (the “Premises”) in 1991. [Dkt. 35-6 (D. Makufka Dep. at 8.] The Premises was built in 1985. Id. Defendant provided Plaintiffs a homeowner's insurance policy for the Premises on September 18, 2015 (the “Policy”). [Dkt. 35-4 (Policy) at 1]. The Policy excludes coverage for losses caused by “wear and tear, marring, deterioration . . . [m]echanical breakdown, latent defect, inherent vice, or any quality in property that causes it to damage or destroy itself . . . settling, shrinking, bulging or expansion, including resultant cracking, of . . . foundations [or] walls.” Policy at 21-23. The Policy also excludes coverage for “loss to property . . . caused by . . . [f]aulty, inadequate or defective . . . [m]aterials used in . . . construction.” Id.

         In addition, the Policy deletes a section providing coverage for “collapse” and replaces it with language defining collapse as “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 current intended purpose.” Id. The Policy explains that “[a] building or any part of a building that is in danger of falling down or caving in is not considered to be in a state of collapse, [a] part of a building that is standing is not considered to be in a state of collapse even if it has separated from another part of the building, [and a] building or any part of a building that is standing is not considered to be in a state of collapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion.” Id.

         The Policy insures for “direct physical loss” caused by certain “perils insured against, ” including “[d]ecay that is hidden from view, unless the presence of such decay is known to an ‘insured' prior to collapse . . . or [u]se of defective material or methods [i]n construction.” Id. However, loss to a “foundation [due to a peril insured against] is not [covered] unless the loss is a direct result of the collapse of a building or any part of a building.” Policy at Ex. B, HW01060210 p.1 of 3.

         The Policy also states Defendant will pay the “reasonable cost incurred by [the insured] for the necessary measures taken solely to protect covered property that is damaged by a Peril Insured Against from further damage.” Id. at 15.

         Finally, the Policy “applies only to loss which occurs during the policy period” and an insured may only sue under the policy if “there has been full compliance with all of the terms under Section I of this policy and the action is started within two years after the date of loss.” Id. at 35, 37.

         Plaintiffs first noticed cracks in the Premises' basement walls around 2000. [Dkt. 35-5 (H. Makufka Dep.) at 26-27; D. Makufka Dep. at 17.] Plaintiff Howard Makufka first noticed the cracks expanding and “thought [they] had an issue” in 2014. H. Makufka Dep. at 34. Before that date, Mr. Makufka thought the “small cracks” were “just normal concrete cracking.” Id. Mr. Makufka did not realize the cracks posed a “serious issue” until October of 2015 after consulting with a concrete mason. Id.

         The concrete which forms the basement walls was made with “defective materials” which made the breakdown of the concrete “inevitable.” [Dkt. 35-7 (Neal Dep.) at 48-49; Dkt. 35-10 (Centurelli Expert Report) (stating the cracks are the result of a defect in the concrete which has been present since the initial placement of the concrete).] Plaintiffs submitted a claim to Defendant for the damage to their foundation listing the date of loss as October 1, 2015. [Dkt. 35-8 (McMillan Aff.) at 5.]

         On December 8, 2015, Defendant denied Plaintiffs' claim, stating “settling or cracking of foundation walls or ceilings is specifically exclude[d] in your policy.” Id. The letter refers to language in the Policy excluding coverage for “loss caused by settling, shrinking, bulging or expansion, including resultant cracking of . . . foundations [or] walls.” Id. The letter also indicates that Defendant “expects that [Plaintiffs] will undertake all necessary repairs so as to protect the property from future damage.” Id. Should Plaintiffs fail to do so, the letter warns that Defendant “cannot be held liable for any further damage to the dwelling.” Id.

         On February 22, 2016, William Neal, P.E., a consulting engineer, conducted a “visual examination” of the Premises' concrete foundation. [Dkt. 39-1 (Rule 56(a)(2) Statement), Ex. AA (Neal Letter) at 1.] He noted that the cracks in the concrete had “rapidly worsened in size and number in the last three months” and the foundation walls were “bowing inward” by half an inch. Id. Neal opined that “the most likely cause of the foundation distress is a chemical reaction resulting from incompatible materials used in the concrete mix.” Id. He opined that there is “no way to arrest the process” of deterioration and concluded that the basement walls were “structurally unsound” and needed to be replaced. Id.

         The Premises is still standing, is not in imminent danger of falling down, and Plaintiffs still live in the home. H. Makufka Dep. at 44-46; Neal Dep. at 37-38 (stating the house is still standing and while he cannot state the current condition of the house since he has not visited the Premises recently, in February 2016 it was not in danger of caving in and was fit for human ...


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