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Oliveira v. Safeco Ins. Co. of Am.

United States District Court, D. Connecticut

August 29, 2019

JOSE AND MARIA OLIVEIRA, Plaintiffs,
v.
SAFECO INS. CO. OF AM. & CAMBRIDGE MUT. FIRE INS. CO., Defendants.

          RULING ON MOTION TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Jose and Maria Oliveira (“Plaintiffs” or “the Oliveiras”) filed this lawsuit against Safeco Insurance Company of America (“Safeco”) and Cambridge Mutual Fire Insurance Company (“Cambridge, ” and together with Safeco, “Defendants”) in Connecticut Superior Court, Judicial District of Tolland. Compl., ECF No. 1-2. Safeco immediately removed the case to this Court. Notice of Removal, ECF No. 1.

         The Oliveiras then moved to amend their Complaint. Pls.' Mot. for Leave to Amend Compl., ECF No. 18. The next day, the Court granted the motion. Order, ECF No. 20.

         The Amended Complaint, First Am. Compl., ECF No. 18-1, alleges that Safeco breached its contract with the Oliveiras, Am. Compl. ¶¶ 6-24, and violated the Connecticut Unfair Insurance Practices Act, Conn. Gen. Stat. § 38a-816, et seq. (“CUIPA”), and Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a, et seq. (“CUTPA”), id. ¶¶ 6-41.[1" name="FN1" id= "FN1">1]

         Safeco now has moved to dismiss the Oliveiras' Amended Complaint. Mot. to Dismiss, ECF No. 27.

         For the reasons that follow, the Court DENIES Safeco's motion to dismiss.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations[2]

         In 1993, the Oliveiras allegedly purchased their home in South Windsor, Connecticut, which was allegedly built in 1986. Am. Compl. ¶ 7.

         From 1993 to 2012, Safeco allegedly insured the property. Id. ¶ 8. Since 2012, Cambridge has allegedly insured the property. Id. ¶ 44.

         Sometime in February of 2017, the Oliveiras allegedly noticed that the basement walls of their home had a series of horizontal and vertical cracks. Id. ¶ 10. They allegedly “consult[ed] with area professionals” about the cracking, id. ¶ 10, and “learned that the form of ‘pattern cracking' found in the basement walls of their home was due to a chemical compound found in certain concrete walls constructed in the late 1980s and the early 1990s with concrete most likely from the J.J. Mottes Concrete Company, ” id. ¶ 12.

         They also allegedly learned that “[t]he aggregate used by the J.J. Mottes Concrete Company in manufacturing the concrete in that particular time period contained a chemical compound which, with its mixture with the water, sand and cement necessary to form the concrete, began to oxidize (rust) and expand, breaking the bonds of the concrete internally and reducing it to rubble.” Id.13.

         The basement walls of the Oliveiras home have allegedly “suffered a substantial impairment to their structural integrity.” Id. ¶ 15.

         On May 31, 2017, the Oliveiras allegedly notified Safeco of the cracking in their basement. Id. ¶ 18.

         On July 28, 2017, Safeco allegedly denied their claim. Id. ¶ 20.

         Safeco has allegedly denied at least three similar claims. Id. ¶ 38.

         B. Procedural History

         On February 26, 2018, the Oliveiras sued Defendants in state court. Compl., ECF No. 1-2. That day, Safeco removed the case to this Court. Notice of Removal, ECF No. 1.

         On April 11, 2018, the parties filed their joint 26(f) report. Joint Report of Rule 26(f) Planning Meeting, ECF No. 16.

         On April 16, 2018, the Oliveiras moved to amend their Complaint. Pls.' Mot. for Leave to Amend Compl., ECF No. 18. The next day, the Court granted that motion. Order, ECF No. 20.

         On April 23, 2018, the Court convened a telephonic scheduling conference. Min. Entry, ECF No. 22. The next day, the Court issued a scheduling order. Scheduling Order, ECF No. 23.

         On May 23, 2018, Cambridge answered the Amended Complaint. Answer, ECF No. 25.

         On October 11, 2018, Safeco moved to dismiss the Oliveiras' Amended Complaint. Mot. to Dismiss, ECF No. 27.

         On November 1, 2018, the Oliveiras opposed Safeco's motion to ...


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