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Clark v. Amica Mutual Insurance Co.

United States District Court, D. Connecticut

June 6, 2018

PATRICIA CLARK, Plaintiff,
v.
AMICA MUTUAL INSURANCE CO., Defendant.

          RULING ON DEFENDANT'S MOTION TO DISMISS

          Janet Bond Arterton, U.S.D.J.

         Plaintiff 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).[1] 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.

         I. Facts Alleged

         In 1997 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 17.)

         Plaintiff 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. 22.)

         II. Discussion[2]

         A. Breach of Contract a. The Contract Language

         The "Additional Coverages" Section of the relevant insurance policies, located in the Section captioned "Property Coverages" includes the following language:

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 following: ...
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.)

         Under a separate Section called "Conditions, " the policy again references the term "foundation, " this time with respect to "Loss Settlement." (Id. at ll.)[3] 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 value of:

(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.

(Id.)

         According 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) ...


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