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Lester v. Liberty Mutual Fire Insurance Co.

United States District Court, D. Connecticut

July 31, 2018

CHRISTOPHER D. LESTER, et al., Plaintiffs,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          Jeffrey Alker Meyer United States District Judge.

         Christopher and Monica Lester have filed this lawsuit against their home insurance company, Liberty Mutual Fire Insurance Company. The Lesters dispute Liberty Mutual's failure to cover damage from allegedly defective concrete that was used to build their home. The Lesters' claim is one of many such “crumbling foundation” claims that have been filed in this Court by homeowners in northeastern Connecticut. See also Lisa W. Foderaro and Kristin Hussey, Financial Relief Eludes Connecticut Homeowners with Crumbling Foundations, New York Times, Nov. 14, 2016. Although I regret that the Lesters must live under a shadow of great uncertainty about the stability and value of their home, I conclude that they have not established grounds for coverage under their insurance policy. Accordingly, I will grant Liberty Mutual's motion for summary judgment.

         Background

         The Lesters own a home in Willington, Connecticut. Their home was built in 1998, and they bought it in 2005. Liberty Mutual has insured the home since June 2007.

         The Lesters first noticed cracks in their foundation not earlier than September of 2015 after neighbors told them about foundation problems in the area. They hired a structural engineer, William Neal, to conduct an inspection on October 5, 2015.[1]

         According to Neal's inspection report, he saw several vertical hairline cracks in the exterior of the foundation as well as hairline spider-web cracking in the interior of the foundation. Neal stated that “[b]ased solely on my visual observations, the most likely cause of the foundation distress is Alkali-Silica-Reaction (ASR), ” that “ASR is a chemical reaction between alkaline Portland cement and silica in the concrete mix, ” and that “[i]t typically causes this type of distress to be visible 15 to 20 years after the foundation is poured, and I believe the cracks are the first visible signs of this condition.” Doc. #19-3 at 1. According to Neal, “[t]he ASR will continue to deteriorate the concrete until it may structurally fail, ” but “[i]t is not possible to predict how quickly the foundation will deteriorate to the point it is structurally dangerous.” Ibid.

         At Neal's deposition, he noted that the cracks at the time of his inspection “were quite small” and he agreed that these small cracks suggested that the basement walls were in the “infancy period” of deterioration. Doc. #19-7 at 19, 22. He agreed that there was no bowing of the walls, id. at 22, and “in this particular case” he was not certain that the foundation would ever structurally fail, id. at 24.

         Neal said he could not testify with a reasonable degree of engineering probability that the foundation walls would deteriorate to the point that they would be structurally dangerous within the next one thousand years. Id. at 28. He explained that there “had been no movement in the concrete foundation, ” and that the walls were neither “structurally unsound” nor “structurally dangerous” at the time of his inspection. Id. at 31.

         Soon after Neal's inspection, the Lesters filed an insurance claim. Liberty Mutual opted to hire its own engineer, Paul Cianci, who conducted a site inspection on November 19, 2015. Cianci's report states that the cracking in the concrete was evidence of “early stages of an expansive reaction in the concrete resulting from a material defect” in the concrete. Doc. #19-4 at 2. Cianci did not provide a definitive view of the chemical cause of the decay, but noted that the presence of pyrrhotite “has been thought to be the cause of the map cracking observed” in Connecticut homes and that this reaction is dependent on exposure to oxygen and water. Id. at 5.

         Cianci concluded in his report that “[t]he insured's foundation is not in imminent danger of collapse, or in a state of collapse.” Id. at 6. He wrote that “[t]he observed condition of the subject foundation is not a substantial impairment to the structural integrity of a building, as it is adequately supporting the structure with no immediate concern of imminent collapse.” Ibid.

         There is no evidence of any worsening of the cracking in the house foundation since Neal's inspection in October 2015. When he was deposed about two years later in September 2017, Neal said he had not returned to the property and did not know if the cracks had gotten any worse since his inspection in 2015. Doc. #19-7 at 16, 21. Likewise, when the Lesters were deposed in September 2017, they were asked if the cracks in their foundation had gotten worse since 2015, and they both responded that they did not know and avoided looking at them. Docs. #19-6 at 37-38; #19-9 at 17.

         On April 12, 2016, Liberty Mutual denied the Lesters' claim. Doc. #19-5. The Lesters followed with this lawsuit alleging claims for breach of contract, breach of the duty of good faith and fair dealing, and violations of the Connecticut Unfair Trade Practices Act (CUTPA) and Connecticut Unfair Insurance Practices Act (CUIPA). Liberty Mutual now moves for summary judgment.

         Discussion

         The principles governing the Court's review of a motion for summary judgment are well established. Summary judgment may be granted only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). I must view the facts in the light most favorable to the party who opposes the motion for summary judgment and then decide if those facts would be enough-if eventually proved at trial-to allow a reasonable jury to decide the case in favor of the opposing party. My role at summary judgment is not to judge the credibility of witnesses or to resolve close contested issues but solely to decide if there are enough ...


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