United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO DISMISS
Bond Arterton, U.S.D.J.
Patricia Clark brings this action against Defendant Arnica
Mutual Insurance Co. ("Arnica"), Plaintiffs
homeowner's insurance company, alleging breach of
contract (Count Two), breach of the implied covenant of good
faith and fair dealing (Count Three), unfair and deceptive
trade practices in violation of the Connecticut Unfair
Insurance Practice Act ("CUIPA") and the
Connecticut Unfair Trade Practices Act ("CUTPA")
(Count Four), and seeking a declaratory judgment (Count
One). Defendant now moves [Doc. # 37] to dismiss
all of Plaintiff s claims. For the reasons that follow,
Defendant's Motion is granted as to Counts One and Three
and denied as to Counts Two and Four.
Plaintiff purchased a residential property located at 380
Felt Road, South Windsor, Connecticut, which was built in
1984. (Am. Compl. ¶ 5.) In October of 2015, Plaintiff
noticed a series of horizontal and vertical cracks in the
basement walls of her home. (Id. ¶ 9.) In late
Fall 2015 and Winter 2015/2016 she undertook an investigation
of the damage, its cause, and methods of repair by consulting
with contractors and engineers. (Id. ¶ 10.) She
learned that the "pattern cracking" she observed
was due to a chemical compound found in concrete walls
constructed in the late 1980s and early 1990s with concrete
likely supplied by the J.J. Mottes Concrete Company.
(Id. ¶ 11.) In February of 2016, a local
engineer familiar with the condition of Plaintiff s basement
walls informed her of the substantial impairment to the
structural integrity of her basement walls. (Id. f
promptly notified Defendant of this condition of her basement
walls. (Id.) She reads the terms of her
homeowner's insurance policies that Defendant issued as
providing coverage for the collapse of a building or any part
of a building caused by hidden decay or the use of defective
materials or methods in construction. (Id. ¶
19.) Since her basement walls are in a state of collapse, and
that the collapse was the result of a covered cause,
Plaintiff claims the damage to her basement walls should be a
covered loss under the terms of one or more homeowner's
policies issued by Defendant during the years that it covered
Plaintiffs home. (Id. 5 21.) However, Defendant
denied coverage for this claim by letter dated May 26, 2017
and postmarked June 9, 2017. (Id.
Breach of Contract a. The Contract
"Additional Coverages" Section of the relevant
insurance policies, located in the Section captioned
"Property Coverages" includes the following
8. 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
b. Hidden decay; ...
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 under items b. [...] 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.
(Ex. 3 (Pre-October 2006 Insurance Policy) to Def.'s Mot.
to Dismiss at 5.) The policy further states under
"Perils Insured Against" that Defendant does not
insure for loss caused by "settling, shrinking, bulging
or expansion, including resultant cracking of pavements,
patios, foundations, walls, floors, roofs or ceilings."
(Id. at 8.)
separate Section called "Conditions, " the policy
again references the term "foundation, " this time
with respect to "Loss Settlement." (Id. at
It provides that To determine the amount of insurance
required to equal 80% of the full replacement cost of the
building immediately before the loss, do not include the
(a) Excavations, foundations, piers, or supports which are
below the undersurface of the lowest basement floor;
(b) Those supports described in (a) above which are below the
surface of the ground inside the foundation walls, if there
is no basement.
to Defendant, the policies issued to Plaintiff that were
operative prior to October 24, 2006 make clear that (1) they
do not provide coverage for a collapse to a "foundation,
" (2) a "foundation" exists above the
"lowest basement floor, " and that (3) ...