United States District Court, D. Connecticut
KENNETH E. ANDREW and SHEILA M. ANDREW, Plaintiffs,
ALLSTATE INSURANCE COMPANY Defendant.
RULING ON MOTION TO DISMISS
Michael P. Shea, U.S.D.J.
Kenneth E. Andrew and Sheila M. Andrew (collectively,
“Plaintiffs”) filed this action in state court
against their homeowner's insurance provider, Allstate
Insurance Company (“Allstate”), for failure to
pay for damages to the basement walls of their home caused by
cracking concrete. (ECF No. 1.) Allstate removed the case to
this court on July 18, 2017. (ECF No. 1.) Plaintiffs bring
claims of breach of contract (Count One) and unfair and
deceptive practices in violation of the Connecticut Unfair
Insurance Practices Act, Conn. Gen. Stat. § 38a-816 et
seq. (“CUIPA”) and the Connecticut Unfair Trade
Practices Act, Conn. Gen. Stat. § 42-110a et seq.
(“CUTPA”) (Count Two). Allstate has moved to
dismiss both claims on the grounds that the insurance policy
at issue did not cover the alleged damage, and the
CUIPA/CUTPA claim on the additional ground that
Allstate's denial of coverage was not in bad faith. (ECF
No. 22.) For the reasons set forth below, the motion to
dismiss is GRANTED.
to the allegations in the amended complaint, Plaintiffs have
owned their home in Willington, Connecticut, since 2002. (ECF
No. 20 ¶ 4.) Allstate has insured the home at all
relevant times. (Id. ¶ 5.) Plaintiffs have made
all required insurance payments. (Id. ¶ 6.)
December 2016, while attempting to sell their home,
Plaintiffs were notified that the basement walls had a series
of horizontal and vertical cracks. (Id. ¶ 7.)
Plaintiffs began to investigate this “pattern
cracking” by consulting area professionals and learned
that the condition of their basement walls was due to a
“chemical compound found in certain basement
walls” that were constructed between the early 1980s
and late 1990s using concrete “most likely from the
J.J. Mottes Concrete Company.” (Id.
¶¶ 8-9.) Plaintiffs learned that the aggregate used
in manufacturing the concrete during that time period
contained a chemical compound which, “with its mixture
with the water, sand and cement necessary to form the
concrete, began to oxidize (rust) and expand, breaking the
bonds of the concrete internally and reducing it to
rubble.” (Id. ¶ 10.)
allege that “[a]t some point between the date on which
the basement walls were poured and late December of 2016, the
basement walls suffered a substantial impairment to their
structural integrity.” (Id. ¶ 12.) As a
result, Plaintiffs claim that “[i]t is only a question
of time until the basement walls of [their] home will fall in
due to the exterior pressure from the surrounding
soil.” (Id. ¶ 13.) Plaintiffs notified
Allstate of the condition and their claim for coverage on
February 3, 2017. (Id. ¶¶ 18-19.) Allstate
denied their claim for coverage, claiming that the
homeowners' policies issued to the Plaintiffs do not
afford coverage for the condition affecting the basement
walls. (Id. ¶ 20.) As a result of the denial,
Plaintiffs expect that replacing their basement walls, along
with related restoration of their deck, landscaping,
driveway, and walks, will cost at least $250, 000.
(Id. ¶ 24.)
Homeowner's Policy (“Policy”) has three
“Sections.” (ECF No. 22-2 at 24.)The provisions at
issue in this case appear in “Section I - Your
Property, ” which addresses property coverage and
contains the following subsections: “Coverage A
Dwelling Protection, ” “Coverage B Other
Structures Protection, ” “Coverage C Personal
Property Protection, ” “Additional Protection,
” and “Section I-Conditions.”
“Section I - Your Property, ” the Policy states:
Losses We Cover Under Coverages A and B: We will cover sudden
and accidental direct physical loss to property described in
Coverage A-Dwelling Protection and Coverage B-Other
Structures Protection except as limited or excluded in this
Losses We Do Not Cover Under Coverages A and B: We do not
cover loss to the property described in Coverage A-Dwelling
Protection or Coverage B-Other Structures Protection
consisting of or caused by: . . . .
12. Collapse, except as specifically provided in Section
I-Additional Protection, under item 11,
“Collapse.” . . .
In addition, we do not cover loss consisting of or caused by
any of the following: 15. a) wear and tear, aging, marring,
scratching, deterioration, inherent vice, or latent defect; .
d) rust or other corrosion, mold, wet or dry rot; . . .
g) settling, cracking, shrinking, bulging or expansion of
pavements, patios, foundations, walls, floors, roofs or
ceilings; . . . .
22. Planning, Construction or Maintenance, meaning faulty,
inadequate or defective:
. . .
c) materials used on repair, construction, renovation or
remodeling . . . .
(Id. at 29-31.)
“Additional Protection” portion of ...