United States District Court, D. Connecticut
CHRISTOPHER D. LESTER, et al., Plaintiffs,
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Jeffrey Alker Meyer United States District Judge.
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.
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.
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
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.”
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.
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.
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.
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.”
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.
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
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 ...