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Chernosky v. Amica Mutual Ins. Co.

United States District Court, D. Connecticut

January 24, 2018

GAIL M. CHERNOSKY Plaintiff,
v.
AMICA MUTUAL INS. CO, Defendant.

          MEMORANDUM OF DECISION GRANTING DEFENDANT'S MOTION TO DISMISS

          HON. VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Before the Court is Defendant Amica Mutual Insurance Company's (Defendant) Motion to Dismiss Plaintiff's Complaint. [Dkt. 12 (Motion).] Plaintiff Gail Chernosky (Plaintiff) has opposed the Motion. [Dkt. 15 (Opposition).] For the reasons discussed below, Defendant's Motion is GRANTED.

         II. Factual Background

         The facts alleged in the Amended Complaint [Dkt. 1 (Complaint)] are taken as true and construed in the light most favorable to Plaintiff for the purpose of a motion to dismiss. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

         Plaintiff owns and resides at 372 Bebbington Road, Ashford, Connecticut (the Property). Complaint at ¶ 1. Defendant is incorporated and has a primary place of business in Rhode Island. Id. at ¶ 2. Plaintiff made all required payments for a homeowner's insurance policy covering the Property from 2006 forward (the Policy). Id. at ¶¶ 3-4.

         Plaintiff first observed visible cracking patterns in the Property's concrete on an unspecified date, and had her basement inspected by a structural engineer on January 6, 2016. Id. at ¶¶ 5-6. The engineer indicated a chemical reaction was occurring within the concrete which would cause the structure to eventually fall. Id. at ¶ 7. Plaintiff submitted a claim for coverage under the Policy on an unspecified date. Id. at ¶ 9. Plaintiff asserts the Policy covers the Property's concrete condition under the provision covering “collapse, ” since losses due to chemical reactions are not listed among Policy exclusions. Id. at ¶¶ 10-11. The iterations of the Policy in effect from September 6, 2012 through September 6, 2017 contain the following language:[1]

         SECTION I - PROPERTY COVERAGES

         E. Additional Coverages . . .

8. Collapse . . .
b. 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 purpose.
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;
(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 collapse of a building or any part of a building if the collapse was caused by one of 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;
(3) Insect or vermin damage, to a building or any part of a building, that is hidden from view, unless the presence of such damage is ...

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