United States District Court, D. Connecticut
STEVEN L. VERA and KIM E. VERA, Plaintiffs,
LIBERTY MUTUAL FIRE INSURANCE CO., Defendant.
RULING AND ORDER
N. Chatigny United States District Judge.
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. 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.
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
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). 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.
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.
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.
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.).
relevant part, the insurance policy at issue (ECF No. 46-1)
provides the following:
SECTION I - PROPERTY COVERAGES
COVERAGE A - Dwelling
(1) The dwelling on the “residence premises” . .
. including structures attached to the dwelling . . .
ADDITIONAL COVERAGES . . .
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 ...