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Mazzarella v. Amica Mutual Insurance Co.

United States District Court, D. Connecticut

February 8, 2018



          Stefan R. Underhill United States District Judge.

         In the 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.[1]

         I. Standard of Review

         A 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)).

         When 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).

         Under 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).

         II. Background

         The 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 17, 2016.

         On 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.

         Approximately 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.

         On 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.

         On 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.

         III. Discussion

         A. Count One: Breach of Contract

         The 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.

         1. Direct Physical Loss

         The 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 ...

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