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Cockill v. Nationwide Property & Casualty Ins. Co.

United States District Court, D. Connecticut

November 27, 2018



          Michael P. Shea, United States District Judge.

         Plaintiffs 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.

         I. Factual Allegations

         According 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.

         On an 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. ¶ 14.

         The 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.

         II. Legal Standards

         On a 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.” Id.

         In 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.

         III. Discussion

         A. Collapse Coverage

         The 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 accidental.” Ibid.

         The 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).

         “The 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 ...

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