United States District Court, D. Connecticut
ORDER CERTIFYING QUESTION TO THE CONNECTICUT SUPREME
and Gail Karas sued their insurer, Liberty Insurance Corp.
(“Liberty”), for denying coverage under their
homeowners' insurance policy for a loss to their basement
walls. The Karases allege that Liberty (1) breached its
insurance contract with the Karases; (2) breached the implied
covenant of good faith and fair dealing; and (3) committed
unfair and deceptive practices proscribed by the Connecticut
Unfair Insurance Practices Act (“CUIPA”) and the
Connecticut Unfair Trade Practices Act (“CUTPA”).
Liberty moved for summary judgment on September 5, 2017. Doc.
No. 57. At a hearing held on December 14, 2017, Doc. No. 69,
I denied Liberty's motion with respect to the breach of
contract claim and granted it with respect to the bad faith
and CUTPA/CUIPA claim, substantially for the reasons stated
in my decision in Roberts v. Liberty Mutual Insurance
Co., 264 F.Supp.3d 394 (D. Conn. 2017).
December 20, 2017, Liberty moved to certify questions to the
Connecticut Supreme Court. Doc. No. 70. The Karases initially
opposed certification, but changed their position upon
learning that my colleague United States District Judge
Robert N. Chatigny was likely to certify questions in another
concrete collapse case, Vera v. Liberty Mutual Fire
Insurance Co., 3:16-cv-00072 (RNC). All parties to both
cases now support certification. Furthermore, the question
presented by this case and by Vera-whether the
definition of “collapse” given in Beach v.
Middlesex Mutual Assurance Co., 205 Conn. 246 (1987),
requires coverage in the present circumstances-has the
potential to resolve a large number of lawsuits pending
throughout the state. Therefore, I grant Liberty's motion to
certify questions to the Connecticut Supreme Court.
Standard of Review
Connecticut law, “[t]he Supreme Court may answer a
question of law certified to it by a court of the United
States . . . if the answer may be determinative of an issue
in pending litigation in the certifying court and if there is
no controlling appellate decision, constitutional provision
or statute of this state.” Conn. Gen. Stat. §
51-199b(d). When deciding whether to certify a question to
the Connecticut Supreme Court, a court should consider, among
other factors, “(1) the absence of authoritative state
court decisions; (2) the importance of the issue to the
state; and (3) the capacity of certification to resolve the
litigation.” O'Mara v. Town of Wappinger,
485 F.3d 693, 698 (2d Cir. 2007). “Where a question . .
. implicates the weighing of policy concerns, principles of
comity and federalism strongly support certification.”
Parrot v. Guardian Life Ins. Co. of Am., 338 F.3d
140, 144 (2d Cir. 2003).
Karases' house is among many in northeastern Connecticut
built with concrete supplied by the J.J. Mottes Concrete Co.
(“Mottes”). The stone aggregate used in Mottes
concrete contains significant amounts of pyrrhotite (Fe1-xS),
a ferrous mineral that reacts with water, oxygen, and
concrete paste to form expansive secondary minerals such as
gypsum, ettringite, and thaumasite. The expanding minerals
crack and destabilize the concrete, “lead[ing] to [its]
premature deterioration.” See generally Conn.
Dep't of Consumer Prot., Report on Deteriorating
Concrete in Residential Foundations, App'x D, at 52
October 2013, the Karases discovered that their basement
walls were cracking, crumbling, and deteriorating in the
manner typical of Mottes concrete. On November 15, 2013, the
Karases reported a claim under their homeowners'
insurance policy to Liberty. Liberty denied the Karases'
claim the same day, asserting that the loss described was
“deterioration” and was therefore not covered
under the policy.
December 11, 2013, the Karases filed suit against Liberty,
contending that the loss was a “collapse” under
the construction given in Beach v. Middlesex Mutual
Assurance Co. The Karases' policy covers
“collapse” as follows:
Collapse. We insure for direct physical loss to
covered property involving collapse of a building or any part
of a building caused only by one or more of the following:
b. Hidden decay; c. Hidden insect or vermin damage; d. Weight
of contents, equipment, animals or people; e. Weight of rain
which collects on a roof; or f. Use of defective material or
methods in construction, remodeling or renovation.
Loss to an awning, fence, patio, pavement, swimming pool,
underground pipe, flue, drain, cesspool, septic tank,
foundation, retaining wall, bulkhead, pier, wharf or dock is
not included . . . unless the loss is a direct result of the
collapse of a building.
Collapse does not include settling, cracking, shrinking,
bulging or expansion.
Beach v. Middlesex Mutual Assurance Co., the
Connecticut Supreme Court held that the term
“collapse” in a homeowners' insurance policy,
when otherwise undefined, was “sufficiently ambiguous
to include coverage for any substantial impairment of the
structural integrity of a building.” 205 Conn. at 252.
The Beach Court specifically rejected the
insurer's contention that “‘collapse' . .
. unambiguously contemplates a sudden and complete falling in
of a structure, ” but did not further define the
standard of “substantial impairment of  structural
integrity.” Id. at 250, 252. In the present
case-as in many others pending in this district-the parties
essentially dispute whether the damage constitutes a
“collapse” under Beach.