United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO DISMISS
Michael P. Shea, United States District Judge.
Lawrence and Karen Cockill (collectively, “the
Cockills”) filed this action in state court against
their homeowner's insurance provider, Nationwide Property
& Casualty Insurance Company (“Nationwide”),
seeking damages for its failure to provide coverage for
damage to the basement walls of a residence they own. ECF No.
1-1. Nationwide removed the case to this court on February 9,
2018. ECF No. 1. On April 2, 2018, Nationwide moved to
dismiss the case, arguing that the alleged loss was not
covered by the insurance policy. ECF No. 14. For the reasons
set forth below, the motion is GRANTED.
to the allegations in the complaint, the Cockills own a
property located at 68 Webster Road, Union, Connecticut
(“the property”). ECF No. 1-1 ¶ 1.
Nationwide has insured the property at all relevant times.
Id. ¶ 3. The Cockills made all required
insurance payments. Id. ¶ 4.
unspecified date, the Cockills “observed visible
cracking in the concrete of their home.” Id.
¶ 5. On January 20, 2016, a structural engineer
inspected the basement of the property. Id. ¶
6. The results of this inspection “indicated that there
was a chemical reaction in the concrete and that the concrete
would have to be replaced.” Id. ¶ 7. The
Cockills made a timely claim for coverage under their
homeowner's insurance policy. Id. ¶ 9. On
November 2, 2016, Nationwide denied coverage. Id.
Cockills allege that the chemical reaction
“substantially impairs the structural integrity of the
dwelling, ” Id. ¶ 8, and “losses
due to chemical reaction are not excluded from policy
coverage, ” Id. ¶10. They further allege
that they are “covered for ‘Collapse' of the
basement walls, ” Id. ¶ 11, “for
any ensuing loss as caused by the condition of the premises,
” Id. ¶ 12, and “for reasonable
repairs as caused by the condition of the premises, ”
Id. ¶ 13. Finally, the Cockills allege that the
“Defendant has breached its agreement with the
Plaintiffs” by failing to provide coverage under the
policy. Id. ¶ 15.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), I take the plaintiffs' factual allegations in
the complaint “to be true and [draw] all reasonable
inferences in” their favor. Harris v. Mills,
572 F.3d 66, 71 (2d Cir. 2009). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal citation and quotation marks
omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A court need
not accept legal conclusions as true and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
deciding a Rule 12(b)(6) motion, I may consider documents
attached to, integral to, or incorporated by reference in the
complaint. See Fed. R. Civ. P. 10(c); Chambers
v. Time Warner, 282 F.3d 147, 153 (2d Cir. 2002)
(“Even where a document is not incorporated by
reference, the court may nevertheless consider it where the
complaint relies heavily upon its terms and effect, which
renders the document integral to the complaint.”)
(internal quotation marks omitted). Here, I consider the
insurance policy, which is attached to Nationwide's
motion to dismiss. ECF No. 15-2.
Cockills claim they are entitled to coverage under the
collapse provision of their insurance policy. ECF No. 1-1
¶ 11. The policy defines collapse as the “abrupt
falling down or caving in” of any structure “with
the result that it cannot be occupied for its intended
purpose.” ECF No. 15-2 at 18. It further states that a
structure is not in a state of collapse if it is still
standing, even if it is “in danger of falling down or
caving in, ” or “shows signs of . . .
cracking.” Ibid. And finally, the policy
requires the collapse to be “sudden and
Cockills rely on the Second Circuit's decision in
Dalton v. Harleysville Worcester Mutual, 557 F.3d.
88 (2nd Cir. 2009), to argue that the “term collapse is
ambiguous in light of the qualifiers made by the provisions
in the policy.” ECF No. 20 at 3. However, their
reliance on Dalton is misplaced. As this Court has
noted, the policy at issue in Dalton “did not
define ‘collapse' to have any temporally abrupt
quality, and the Court had to look to unsettled New York law
to determine the meaning of ‘collapse.'”
England v. Amica Mut. Ins. Co., 2017 WL 3996394, at
*5 (D. Conn. Sept. 11, 2017). In this case, by contrast, the
insurance policy expressly defines collapse as the
“abrupt falling down or caving in” of a
structure, and later reiterates that the collapse must be
“sudden and accidental.” ECF No. 15-2 at 18.
Indeed, the Dalton court itself noted that a policy
with such “express definitional terms” would
present a different issue altogether. Dalton, 557
F.3d 88, 92 n.1 (explaining that a policy defining collapse
as “an abrupt falling down or caving in” and
excluding coverage for standing structures that show
“evidence of cracking” provides “a
definition of collapse agreed to by the parties, which
addresses the ambiguity”). Because the language in the
Cockills' policy is unambiguous, unlike the language in
Dalton, it “must be accorded its natural and
ordinary meaning.” Connecticut Med. Ins. Co. v.
Kulikowski, 942 A.2d 334, 338 (Conn. 2008).
ordinary meaning of the word ‘abrupt' is
‘characterized by or involving action or change without
preparation or warning.'” England, 2017 WL
3996394, at *5 (quoting Merriam Webster's Collegiate
Dictionary (10th ed. 1994)). And the term
‘sudden' has “a temporal quality, ”
which requires the event in question to occur
“quickly” or “abruptly.” Adams v.
Allstate Ins. Co., 276 F.Supp.3d 1, 4 (D. Conn. 2017)
(quoting Buell Indus., Inc. v. Greater New York Mut. Ins.
Co., 791 A.2d 489 (Conn. 2002)). I construe the
allegations in the complaint in the light most favorable to
the Cockills-as I must at the motion to dismiss stage-and
find that they do not allege an “abrupt” or
“sudden” collapse. Rather, the Cockills point to
a “chemical reaction in the concrete” that
“substantially impairs the structural integrity of the
building.” ECF No. 1-1 ¶¶ 7-8. In their
opposition to Nationwide's motion to dismiss, the
Cockills further allege that “one of the after effects
of the ongoing chemical ...