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Vera v. Liberty Mutual Fire Insurance Co.

United States District Court, D. Connecticut

June 15, 2018

STEVEN L. VERA and KIM E. VERA, Plaintiffs,


          Robert N. Chatigny United States District Judge.

         Defendant Liberty Mutual Fire Insurance Company insures the home of plaintiffs Steven and Kim Vera. After defendant denied insurance coverage for damages to the basement walls of the home, plaintiffs brought this action for breach of contract.[1] The parties jointly seek to certify several questions to the Connecticut Supreme Court. For reasons that follow, certification is granted with regard to one of the jointly proposed questions.[2]

         I. Background

         The facts bearing on certification are essentially undisputed. Plaintiffs' home in Willington was built in 1993 with concrete supplied by the J.J. Mottes Concrete Co. Many basements built with Mottes concrete in northeastern Connecticut exhibit cracking and other signs of premature deterioration. See generally Roberts v. Liberty Mut. Fire Ins. Co., 264 F.Supp.3d 394, 400 (D. Conn. 2017) (describing “crumbling foundation” problem). In August 2015, after hearing that some neighbors were experiencing issues with their basements, plaintiffs inspected the unfinished areas of their basement and noticed some cracking.

         Plaintiffs retained an engineer, William Neal, who inspected the basement walls and found internal “spider web cracking” and several vertical external cracks. See Neal Report, at 1 (ECF No. 46-3).[3] Mr. Neal's inspection report states that the cracks are caused by Alkali-Silica-Reaction (“ASR”), a chemical reaction between alkaline cement paste and silica contained in concrete aggregates. Id. At the time of his inspection, there were no visible signs of bowing and the home was not in imminent danger of falling down, but the walls were “beginning to lose their structural integrity.” Id. The report states that it is “not possible to predict how quickly the foundation will deteriorate to the point it is structurally dangerous.” Id. However, there “is no way to arrest the process and there is no way to repair the existing damage.” Id. In his report, Mr. Neal recommended replacing the basement walls. Id. To date, the walls have not been replaced.

         After receiving Mr. Neal's report, plaintiffs filed an insurance claim with defendant on September 4, 2015. Defendant sent an inspector to the home. Following the inspection, defendant denied the claim. The denial letter stated that the policy does “not afford coverage for the cracking to the foundation due to faulty, inadequate or defective materials along with settling.” Plaintiffs then filed this suit.

         Defendant has retained experts who disagree with Mr. Neal about both the cause of the cracking and the extent of the structural impairment. Engineering experts Carl and Paul Cianci state that the cracking is likely caused by oxidation of the mineral pyrrhotite, not ASR. See Cianci Report, at 4 (ECF No. 46-12). Pyrrhotite oxidizes in the presence of water and oxygen to form expansive secondary minerals. See generally Roberts, 264 F.Supp.3d at 400. According to the Ciancis, the cracking does not present a “substantial impairment to the structural integrity of a building, as [the walls are] adequately supporting the structure with no immediate concern of imminent collapse.” Cianci Report, at 5. Concrete expert Nick Scaglione, who conducted a petrographic analysis of the concrete, has concluded that the cracking is caused by the presence of pyrrhotite. See Scaglione Report, at 8 (ECF No. 46-11). He states that “the progress of the distress can be arrested by cutting off the source of exterior water to the concrete.” Id. at 10.

         Mr. Scaglione's identification of pyrrotite as the cause of the cracking is consistent with a December 2016 report on Mottes concrete issued by the State of Connecticut. See Conn. Dep't of Consumer Protection, Report on Deteriorating Concrete in Residential Foundations (Dec. 30, 2016) (ECF No. 46-25) (“CDCP Report”). The report was released after Mr. Neal's inspection of plaintiffs' home, and he has since stated at depositions in other Mottes concrete cases that pyrrhotite, ASR, or both may be the cause of the cracking problem. See Neal Depo., Aug. 17, 2017, at 37 (ECF No. 46-10), Gladysz v. Liberty Mutual Ins. Co., 16-cv-917 (VLB) (D. Conn.).

         In relevant part, the insurance policy at issue (ECF No. 46-1) provides the following:

COVERAGE A - Dwelling
We cover:
(1) The dwelling on the “residence premises” . . . including structures attached to the dwelling . . .
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 ...

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