United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO DISMISS
A. Bolden United States District Judge
Rosenberger and Margit Rosenberger (the
“Rosenbergers” or “Plaintiffs”) sued
Amica Mutual Insurance Co. (“Amica” or
“Defendant”) after the insurance company denied
coverage for cracking in the concrete in the basement of
their South Windsor home. After moving to amend their
Complaint, the Rosenbergers assert three claims: breach of
contract; breach of the covenant of good faith and fair
dealing; and violations of the Connecticut Unfair Trade
Practices Act (“CUTPA”), Conn. Gen. Stat. §
42-100a et seq., and the Connecticut Unfair
Insurance Practices Act (“CUIPA”), Conn. Gen.
Stat. § 38a-815 et. seq.
now moves to dismiss the Amended Complaint under Federal Rule
of Civil Procedure 12(b)(6). See Def. Mot, ECF No.
following reasons, the motion is GRANTED in
part and DENIED in part.
FACTUAL AND PROCEDURAL BACKGROUND
Rosenbergers live and own a home in South Windsor,
Connecticut. Am. Compl. ¶ 1, ECF No. 47. Amica, an
insurance company, is incorporated under the laws of the
State of Rhode Island and licensed to provide homeowners
insurance coverage in Connecticut. Id. ¶ 2.
Rosenbergers have insured their home with Amica since 1989,
and have made all required payments. Id. ¶ 3.
According to both parties, the policy language changed
several times over the course of the Rosenbergers'
relationship with Amica. Id. ¶ 14-15; Def. Mem.
at 9-11.The relevant portions of these policies may
be grouped into three distinct time periods: the policy
language before December 18, 2006; the policy language
amended on December 18, 2006, and in effect between December
18, 2006, and December 18, 2012; and the policy language as
amended on December 18, 2012, and in effect until at least
December 18, 2017. See Def. Mem. at 4, 9, 12.
The Policy Language Before December 18, 2006
the policy language in effect place between December 18,
2005, and December 18, 2006, Amica “insure[d] for
direct physical loss to covered property involving collapse
of a building, ” but only if “caused . . . by one
or more of the following:”
a. Perils lnsured Against in COVERAGE C-PERSONAL PROPERTY.
These perils apply to covered buildings and personal property
for loss insured by this additional coverage;
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 if the collapse occurs during the
course of the 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 under items b., c., d., e., and f., unless the
loss is a direct result of the collapse of a building.
Collapse does not include settling, cracking, shrinking,
bulging or expansion.
This coverage does not increase the liability applying to the
Policy (“Dec. 2006 Policy”) at 5, Def. Mot. to
Dismiss, Ex. 3, ECF No. 36-4. The policy also excluded
coverage for collapse stemming from “wear and tear,
marring, deterioration, ” “inherent vice, latent
defect, mechanical breakdown, ” smog or smoke,
discharge of pollutants and “[s]ettling, shrinking,
bulging or expansion, including resultant cracking, of
pavements, patios, foundations, walls, floors, roofs or
ceilings[.]” Id. at 7-8.
2006 policy appears not to include any provisions explicitly
excluding coverage for a chemical reaction. Compare
with Am. Compl. ¶ 10 (“Pursuant to coverage
of the aforementioned homeowner's insurance policy,
losses due to chemical reaction are not excluded from policy
coverage.”). The policy did exclude “inherent
vice, latent defect, mechanical breakdown” and
“smug rust or other corrosion . . . .” Dec. 2006
Policy at 8.
policy provided that “[i]n the event that covered
property is damaged by an applicable Peril Insured Against,
we will pay the reasonable cost incurred by you for necessary
measures taken solely to protect against further
damage.” Id. at 4. Finally, the 2006 policy
stated that “[n]o action can be brought unless the
policy provisions have been complied with and the action is
started within one year after the date of loss.”
Id. at 12.
The Policy Language Between to December 18, 2006, and
December 18, 2012
post-2006 policy insured “against risks of direct
physical loss to property described in Coverages A and
B.” See, e.g., Homeowners Policy (“Dec.
2009 Policy”) at 8, Def. Mot. to Dismiss, Ex. 7, ECF
No. 36-8. Those risks included collapse, but under a
significantly modified definition. The new policy language
stated that “[c]ollapse applies only to an abrupt
collapse.” Id. at 7. Furthermore, collapse is
defined 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
intended purpose.” Id. at 7. The provision
includes several exclusions, id.:
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; or
(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.
policy also modified the “hidden decay” section
included in the 2006 policy, stating that it covered
collapse, if caused by “[d]ecay, 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.” Id. at 7.
The Policy Language Between to December 18, 2012 and December
recent policies still require a collapse to be
“abrupt.” For instance, the policy issued to the
Rosenbergers in December, 2016, defines collapse as applying
“only to an abrupt collapse” and meaning
“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