United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Vanessa L. Bryant United States District Judge.
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
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.
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.”
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.
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.
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.
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.
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.]
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.
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.
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 ...