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Dumas v. USAA General Indemnity Co.

United States District Court, D. Connecticut

August 6, 2019

ALEXANDER J. DUMAS et al., Plaintiffs,
v.
USAA GENERAL INDEMNITY CO., Defendant.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE

         Alexander 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.

         Background

         Plaintiffs 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.

         In 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.

         At his 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.

         What 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.” Ibid.

         Plaintiffs 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.

         Plaintiffs 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.

         Plaintiffs 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.

         USAA 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.

         DISCUSSION

         The 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).

         Count One - ...


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