United States District Court, D. Connecticut
ALEXANDER J. DUMAS et al., Plaintiffs,
USAA GENERAL INDEMNITY CO., Defendant.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE
J. Dumas and Margaret A. Dumas have filed this lawsuit
against their home insurance company, USAA General Indemnity
Company (USAA). Plaintiffs dispute the company's failure
to pay for damage to the foundation of their home caused by
cracking and deteriorating concrete. Their claim is one of
many such “crumbling foundation” claims that have
been filed in this Court by homeowners in Connecticut.
Although I regret that plaintiffs must live under a shadow of
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
defendant's motion for summary judgment.
Alexander and Margaret Dumas bought their house in Bolton,
Connecticut in 1990. Doc. #42-1 at 1. They were the first
owners. Before purchasing the house, Mr. Dumas noted small
cracks on the first floor of the northwest corner. He and his
wife commissioned a home inspection report in connection with
their purchase. The report noted cracks in the basement
walls, among other issues. The inspectors instructed
plaintiffs to watch the cracks and pay immediate attention if
they grew. Id. at 2.
2010, plaintiffs purchased homeowners' insurance from
USAA. Although plaintiffs did not report the cracking
concrete problem to USAA until 2015, they admit that they
noticed a problem at least by 2011. During the spring and
summer of 2012, Mr. Dumas tried repairing some of the cracks
on his own. He noticed the patched cracks worsening within
six months. Doc. #42-1 at 2.
deposition, Mr. Dumas was asked why he did not call the
insurance company in 2012, when he was concerned enough about
the cracks to try to repair them on his own. He stated,
“I honestly don't know. I guess I was just a bit in
denial about it.” Id. at 3; Doc. #36-2 at 20.
prompted him to contact the insurance company was a visit
from his neighbor, who had come to help him brainstorm ideas
for basement renovations and suggested that he should deal
with the crumbling concrete problem before attempting to
renovate. Doc. #36-2 at 16. When asked at his deposition if
it surprised him when his neighbor said the cracks were a
problem, Mr. Dumas responded, “sort of, yes it did,
” and elaborated that, though he had been monitoring
the cracks since 2012, “I guess I was denying it. You
know, I guess I didn't want to hear that.”
filed a claim with USAA on or about June 25, 2015. Doc. #42-1
at 3. An engineer hired by USAA inspected the house a month
later. He issued a report stating that the cracking arose in
part from defective concrete, that the problem was already
present when plaintiffs bought the home, and that the
resulting damage had occurred over time. Ibid.
hired their own expert who opined that the cracking was
caused in part by high levels of pyrrhotite in the concrete,
which causes swelling and cracking when exposed to oxygen and
water. Doc. #42-3 at 2-3. He said that a house with
pyrrhotite will eventually collapse, although he could not
say that would happen in less than 25 years, and that the
concrete would need to be replaced in two to three years.
Ibid.; Doc. #42-1 at 6, 10; Doc. #36-9 at 45-46,
106. He also said that the damage to the house had not
occurred suddenly (with “sudden” defined by him
as “a break that happens almost immediately”) and
that there had been no “falling-in” or
“caving-in” of the foundation walls or the house
as a whole or an imminent peril that the walls or house would
do so. Doc. #42-1 at 6; Doc. #36-9 at 103-104.
continue living in their house. At his deposition, Mr. Dumas
testified that he would characterize the problem as a gradual
condition that has gotten progressively worse over time. He
said he has noticed the cracks getting bigger since he
started paying attention to them in 2012, and that the
basement walls are “slowly crumbling; they are slowly
falling apart.” Doc. #42-1 at 4; Doc. #36-2 at 21.
Plaintiffs allege that it will cost $193, 320 to fix their
property. Doc. #42-1 at 10.
denied coverage on August 18, 2015. Plaintiffs 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 the
Connecticut Unfair Insurance Practices Act (CUIPA). USAA now
moves for summary judgment. Docs. #35, #36.
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 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 facts that remain in dispute to warrant a trial.
See generally Tolan v. Cotton, 572 U.S. 650, 656-57
(2014) (per curiam); Pollard v. N.Y. Methodist
Hosp., 861 F.3d 374, 378 (2d Cir. 2017).
One - ...