United States District Court, D. Connecticut
FRANK V. HUSCHLE et al., Plaintiffs,
ALLSTATE INSURANCE COMPANY et al., Defendants.
ORDER GRANTING MOTIONS TO DISMISS
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE
Frank and Cynthia Huschle have filed this lawsuit against
their three home insurance companies: Allstate Insurance
Company, 21st Century Premier Insurance Company f/k/a AIG
Insurance Company, and Teachers Insurance Company. Plaintiffs
allege that their insurers have failed to pay for damage to
their home's basement walls caused by cracking and
deteriorating concrete. Plaintiffs allege that this
constitutes a breach of the insurers' policies, and also
that 21st Century and Teachers have violated the Connecticut
Unfair Insurance Practices Act (CUIPA) and the Connecticut
Unfair Trade Practices Act (CUTPA). Defendants Allstate and
Teachers have moved to dismiss plaintiffs' claims against
them. For the reasons stated below, I will grant their
motions to dismiss.
following facts are taken from plaintiffs' amended
complaint and defendants' insurance policies which are
integral to the complaint. Plaintiffs purchased their home in
Tolland, Connecticut in 1998, the year it was built. Doc. #33
at 2 (¶ 7). In January 2017, they noticed that the
basement walls of their home had a series of horizontal and
vertical cracks throughout. Id. at 3 (¶ 10).
They immediately investigated the “pattern
cracking” condition, its cause, and the methods of
repair by consulting with local professionals. Ibid.
(¶ 11). They learned that the “pattern
cracking” came from a chemical compound in certain
walls constructed in the 1980s and 1990s with concrete from
the J.J. Mottes Concrete Company. Ibid. (¶ 12).
The Mottes concrete was made from an aggregate that included
a chemical compound which started to rust and expand,
breaking the concrete's internal bonds and reducing it to
rubble. Ibid. (¶ 13). Plaintiffs allege that
concrete made with “good and sufficient
materials” should instead last for centuries rather
than for decades. Id. at 13 (¶¶ 84-85).
also allege that it is “only a question of time”
until their basement walls will fall in from exterior soil
pressure. Id. at 3 (¶ 14). Plaintiffs allege
that, while the process of decay occurs over the course of
years, “it may cause sudden events throughout the
course of decay, ” such as “events where the
walls bulge and shift in some increment or pieces of concrete
become dislodged and fall to the floor.” Id.
at 3-4 (¶¶ 15-16).
insured their home under an Allstate policy from 1998 to
2001. Id. at 3 (¶ 8). The Allstate policy
covered “sudden and accidental direct physical
loss” to insured buildings and structures. Doc. #32-1
at 16. The policy placed several limits on that coverage. The
policy generally did not cover losses caused by
“faulty, inadequate or defective . . . materials used
in repair, construction, renovation or remodeling.”
Id. at 17-18. The policy only covered collapses as
defined in the “Additional Protection” section.
Id. at 16-17. That section covered “the entire
collapse” of all or part of a covered building,
provided the collapse is “a sudden and accidental
direct physical loss.” Id. at 25. The policy
covered collapses caused by defective construction materials,
but noted that a collapse “does not include settling,
cracking, shrinking, bulging or expansion.”
Ibid. When plaintiffs learned about the cracks in
their basement walls, they sent a letter to Allstate about
the cracks and claimed coverage. Doc. #33 at 4 (¶ 17).
Allstate denied the claim. Ibid. (¶ 22).
insured their home with 21st Century from 2001 to 2009.
Id. at 5 (¶ 31). They notified 21st Century
about the cracks in January 2017, and 21st Century denied
their claim. Id. at 7 (¶¶ 41, 46). 21st
Century has not moved to dismiss plaintiffs' claims
have insured their home with Teachers Insurance Company since
2009. Id. at 11 (¶ 72). One Teachers policy
covered plaintiffs' home from 2009 to 2013, and another
Teachers policy has covered plaintiffs' home from 2013 to
the present. The 2009 policy did not say anything about
collapse. Doc. #39-1 at 57-58. The 2009 policy did, however,
state that Teachers would not pay for loss “caused by
the settling, cracking, shrinking, bulging or expanding of a
building structure.” Id. at 58. The policy
also excluded coverage for any loss “which results from
. . . a defect, a weakness, an inadequacy, a fault or
unsoundness in materials used in construction or
repair” of the insured property. Id. at 62.
The 2013 policy explicitly covers collapse, including
collapses caused by decay or by the use of defective
construction materials. Id. at 14-15. The policy
provides that “collapse” means an “abrupt
caving in, falling in, falling down, or giving way that
prevents the building or the part of the building from being
occupied for the purpose for which it was intended just
before” the collapse. Id. at 15. The policy
further provides that collapse does not include a building
“in danger of caving in, falling in, falling down, or
giving way.” Ibid.
notified Teachers about the basement wall cracks on January
16, 2017, and Teachers denied their claim on February 1,
2017. Doc. #33 at 13-14 (¶¶ 92-94). Plaintiffs also
allege that the Teachers has knowingly engaged in a practice
of falsely denying coverage and unfairly failing to settle
claims. Id. at 16-17 (¶¶ 109-116).
have sued Allstate (Counts I and II) and 21st Century (Counts
III and IV) for breach of contract and for declaratory
judgments that their policies cover the cracking.
Id. at 2-8 (¶¶ 7-54). Plaintiffs have also
asserted a claim for a violation of CUIPA and CUTPA against
21st Century (Count V). Id. at 8-11 (¶¶
55-70). Lastly, plaintiffs have sued Teachers for breach of
contract and for violating CUIPA and CUTPA (Counts VI and
VII). Id. at 11-18 (¶¶ 71-118). Allstate
and Teachers have moved to dismiss all the counts against
them under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim on which relief can be granted. Doc.
#37; Doc. #38.
purposes of a motion to dismiss for failure to state a claim,
the Court must accept as true all factual matters alleged in
a complaint, although a complaint may not survive unless the
facts it recites are enough to state plausible grounds for
relief. See, e.g., Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); Mastafa v. Chevron Corp., 770
F.3d 170, 177 (2d Cir. 2014). This “plausibility”
requirement is “not akin to a probability requirement,
” but it “asks for more than a sheer possibility
that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678. Because the focus must be on what facts a
complaint alleges, a court is “not bound to accept as
true a legal conclusion couched as a factual
allegation” or “to accept as true allegations
that are wholly conclusory.” Krys v. Pigott,
749 F.3d 117, 128 (2d Cir. 2014). In short, my role in
reviewing a motion to dismiss under Rule 12(b)(6) is to
determine if the complaint-apart from any of its conclusory
allegations-alleges enough facts to state a plausible claim
must interpret the terms of an insurance policy as it would a
contract to determine if the text of the policy makes the
parties' intent unambiguously clear. Only if the text of
the policy is ambiguous does a court look to other evidence
of the parties' intent and in light of the rule that any
ambiguity or exclusion in the policy must be construed in
favor of the insured. See, e.g., Conn. Ins.
Gaur. Ass'n v. Drown, 314 Conn. 161, 187-88 (2014).