United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
R. Underhill United States District Judge.
present insurance dispute, Amica Mutual Insurance Co.
(“Amica”) has moved to dismiss the claims brought
against it by Joseph and Wendy Mazzarella. The Mazzarellas
complaint alleges that (1) Amica breached its contract with
the Mazzarellas by denying coverage under their
homeowner's policy for damage to their basement walls and
various other parts of their house; (2) Amica breached the
implied covenant of good faith and fair dealing by denying
coverage; and (3) Amica committed unfair and deceptive
practices proscribed by the Connecticut Unfair Insurance
Practices Act (“CUIPA”), as enforced through the
Connecticut Unfair Trade Practices Act (“CUTPA”).
Because the Mazzarellas have failed to show their policy with
Amica covered the alleged “direct physical loss”
damage to their home, I grant the motion and dismiss the
complaint in its entirety.
Standard of Review
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) is designed “merely to assess the legal
feasibility of a complaint, not to assay the weight of
evidence which might be offered in support thereof.”
Ryder Energy Distribution Corp. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)
(quoting Geisler v. Petrocelli, 616 F.2d 636, 639
(2d Cir. 1980)).
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must accept the material facts alleged in the complaint
as true, draw all reasonable inferences in favor of the
plaintiffs, and decide whether it is plausible that
plaintiffs have a valid claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Twombly, “[f]actual allegations must be enough
to raise a right to relief above the speculative level,
” and assert a cause of action with enough heft to show
entitlement to relief and “enough facts to state a
claim to relief that is plausible on its face.” 550
U.S. at 555, 570; see also Iqbal, 556 U.S. at 679
(“While legal conclusions can provide the framework of
a complaint, they must be supported by factual
allegations.”). The plausibility standard set forth in
Twombly and Iqbal obligates the plaintiff
to “provide the grounds of his entitlement to
relief” through more than “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555
(quotation marks omitted). Plausibility at the pleading stage
is nonetheless distinct from probability, and “a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the claims] is improbable, and .
. . recovery is very remote and unlikely.” Id.
at 556 (quotation marks omitted).
Mazzarellas have resided at their home in Tolland,
Connecticut since their house was constructed in 1992. Each
year since 1992, the Mazzarellas have purchased primary
homeowners insurance coverage from Amica. The relevant policy
at issue in the instant case is Homeowners Policy No.
661106-22ZV (“the Policy”), which insured the
Mazzarellas' home from November 17, 2015 through November
February 16, 2016, the Mazzarellas notified Amica of property
damage to their residence. The damage included, inter alia,
damage to the basement walls, upper walls, floors, tiles,
windows, doors, and chimneys. 2nd Am. Compl., Doc. No. 37, at
¶ 15. On March 7, 2016, Amica responded and stated that
it had insufficient information to determine the existence of
coverage and informed the Mazzarellas that it would undertake
an investigation of the damage. Id. at ¶ 16. On
March 22, 2016, an investigation was conducted by Cianci
Engineering, LLC (“Cianci”), A.E. Oberhaus, Inc.
(“Oberhaus”), and GeoDesign, Inc.
(“GeoDesign”). Id. at ¶ 17. Cianci
issued an “Investigation of Damages” report to
Amica on April 6, 2016 in which it determined that the
claimed damage was the result, at least in part, of
“ongoing exposure to water and oxygen.”
Id. at ¶ 18. GeoDesign issued an
“Engineering Report” on July 12, 2016 in which it
determined that the concrete in the residence contained a
“‘high and unusual' content of pyrrhotite[,
]” which “oxidizes and reacts with the
paste.” Id. at ¶ 19. Within the
Engineering Report, GeoDesign also issued a “Report of
Petrographic Evaluation” in which it concluded that
“oxidation of pyrrhotite due to exposure to water and
oxygen infiltration damaged the Residence's cement
basement walls.” Id. at ¶ 20.
ten months after the Mazzarellas notified Amica of their
property damage, and after three attempts by the Mazzarellas
to obtain Amica's coverage position, Amica notified them
that the claimed damage was not covered under the Policy.
Id. at ¶¶ 22, 23. In denying coverage,
Amica asserted that the residence's damage did not
qualify for “collapse” coverage. Id. at
¶ 24. Moreover, Amica asserted “numerous
exclusions and conditions in the Policy, ” the exact
nature of which were unspecified in the operative complaint.
March 16, 2017, the Mazzarellas filed the instant suit in
Connecticut Superior Court. Amica removed the case to this
Court on April 12, 2017 and filed its first Motion to
Dismiss. Docs. # 10, 11. The Mazzarellas filed an Amended
Complaint on May 10, 2017 in which they alleged that Amica
breached its policy by not covering the damage and cited two
policy provisions under either of which Amica should have
provided coverage: (1) direct physical loss; or (2) collapse.
Doc. # 16. On May 24, 2017, Amica filed its Second Motion to
Dismiss. Doc. # 21. At a hearing on the motion, I stated that
the Mazzarellas' claimed loss did not qualify as a
“collapse” due to the lack of abrupt falling down
or caving in, and did not yet qualify as a “direct
physical loss” because the Mazzarellas had failed to
provide enough detail to remove the damage from the policy
exclusions that likely applied. Accordingly, I orally granted
Amica's Second Motion to Dismiss without prejudice on
July 12, 2017. Doc. # 33.
August 16, 2017, the Mazzarellas filed the operative Second
Amended Complaint. Doc. # 37. In Count One, they allege that
Amica breached the Policy by failing to cover the damage done
to their home, and seek coverage under only the “direct
physical loss” policy provision. In Count Two, the
Mazzarellas allege that Amica's failure to cover the
damage breached the implied covenant of good faith and fair
dealing. In Count Three, the Mazzarellas allege that Amica
violated the Connecticut Unfair Trade Practices Act
(“CUTPA”), Conn. Gen. Stat. § 42-110a,
et seq., and the Connecticut Unfair Insurance
Practices Act (“CUIPA”), Conn. Gen. Stat. §
38a-815, et seq., by failing to cover their claimed
damage and for engaging in a business practice of denying
coverage for claims involving the oxidation of concrete.
Amica filed its Third Motion to Dismiss on September 6, 2017,
alleging that the Policy explicitly excluded the claimed
direct physical loss to the Mazzarellas' home, and,
therefore, the Second Amended Complaint, in its entirety,
should be dismissed. Doc. # 38. I heard oral argument on the
motion on November 20, 2017 and took it under advisement.
Doc. # 46.
Count One: Breach of Contract
Mazzarellas claim in Count One of their Second Amended
Complaint that Amica breached its policy by failing to cover
the damage to their home, which should have been covered
under the “Direct Physical Loss” provision of the
Policy. The extent of their allegations is that there was
“property damage” to their house including
“damage to concrete basement walls, interior walls,
floor tiles, subfloors and wood floors, interior doors and
windows, and the chimney, as well as damage from
rainwater.” 2nd Am. Compl., Doc. No. 37, at ¶ 12.
They further assert that the “damage” was as a
result of the “infiltration of water and oxygen into
pyrrhotite, an iron sulfide mineral found in the
concrete.” Id. at ¶ 13. Further, they
allege that the “infiltration of water and oxygen
caused oxidation, which led to the formation of sulfur acids,
called an internal ‘sulfate attack, ' which damaged
the concrete basement walls” of their home.
Id. at ¶ 14. The Mazzarellas, however, failed
to satisfy their initial burden of showing that they
sustained a direct physical loss, and, in the alternative,
any such damage was expressly excluded from the coverage
Policy. They further failed to show that their damage should
have been covered under a theory of “efficient
cause.” Accordingly, Count One is dismissed.
Direct Physical Loss
burden is first on the Mazzarellas to “demonstrate that
the loss suffered falls within the terms of the
policy.” Yale Univ. v. Cigna Ins. Co., 224
F.Supp.2d 402, 424 (D. Conn. 2002). The Mazzarellas cite to
the Policy's “Section I - Perils Insured
Against” which states that Amica “insure[s]
against direct physical loss to property . . . .” 2nd
Am. Compl., Doc. No. 37, at ¶ 35. See also
Policy § I(A)(1) at pg. 9 (Doc. # 38-3). “Direct
loss” is defined as “[a] loss that results
immediately and proximately from an event.” England
v. Amica Mutual Ins. Co., 2017 WL ...