United States District Court, D. Connecticut
MARIANNE GILMORE and THOMAS J. GILMORE, Plaintiffs,
TEACHERS INSURANCE COMPANY, Defendant.
RULING GRANTING DEFENDANT'S MOTION TO
BOND ARTERTON, U.S.D.J.
one of the many "so-called 'crumbling concrete
cases'" brought by Connecticut residents, whose
homes were allegedly built with tainted concrete and whose
insurers declined to cover the resulting structural damage.
Valls v. Allstate Ins. Co., 919 F.3d 739, 741 (2d
Marianne and Thomas Gilmore ("Plaintiffs") contend
that Teachers Insurance Company ("Defendant")
wrongfully denied a property damage claim concerning the
deterioration of their home's foundation. Plaintiffs
allege that Defendant breached the contract between them,
breached the implied covenant of good faith and fair dealing,
and violated the Connecticut Unfair Insurance Practices Act
("CUIPA") and the Connecticut Unfair Trade
Practices Act ("CUTPA"). Defendant now moves to
dismiss all claims.
reasons that follow, Defendant's Motion to Dismiss is
following facts are drawn from Plaintiffs' First Amended
Complaint and from the insurance policies attached and
incorporated by reference.
own a home in Tolland, Connecticut. (First Am. Compl. [Doc. #
15] ¶ 3.) They purchased it on June 22, 2012 and
obtained a homeowner's insurance policy from Defendant on
that same day. (Id. ¶¶ 3, 4.) Defendant
has continually insured Plaintiffs' home "[a]t all
times relevant and material to this claim."
(Id. ¶ 5.)
original insurance policy ("2012 Policy") with
Defendant did not include property collapse in its section on
"incidental property coverages." (Ex. 1 (2012
Policy) to Def.'s Mot. Summ. J. [Doc. # 18-1] at 11-12.)
Rather, the 2012 Policy disclaimed any loss "caused by
the settling, cracking, shrinking, bulging or expanding of a
building structure," (id. at 13), and
"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 17).
2013, Defendant updated the terms of its homeowner's
insurance coverage and added new language referring to
property collapse. (Ex. 2 (2013 Policy) to Def.'s Mot.
Summ. }. [Doc. # 18-2] at 14-15.) The revised policy
("Revised Policy") explicitly provided for the
coverage of the "collapse of a building" if caused
by decay where "no 'insured' knew of or could
reasonably be expected to suspect the presence of such decay
prior to collapse," (id. at 14), or if caused
by "the use of defective materials or methods in
construction ... if the collapse occurs during the course of
construction," (id. at 15). The Revised Policy
defined "collapse" as 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.) But the Revised Policy
specifically excluded "bending, bowing, bulging,
cracking, ... sagging, settling, or shrinkage" from this
definition. (Id.) This language has remained
in effect through the present. (See Ex. 7 (2018
Policy) to Def.'s Mot. Summ. J. [Doc. # 18-7] at 14-15.)
2017, Plaintiffs brought in a contractor to inspect the
foundation of their home and analyze the concrete used.
(First Am. Compl. ¶¶ 6-10.) A petrographic test
showed that the foundation contained pyrrhotite, a mineral
contaminant that can cause concrete to expand and crack.
(Id. ¶ 10.) Pyrrhotite-contaminated concrete
"deteriorate[s] over time, but will not abruptly
collapse." (Id. ¶ 24.) Plaintiffs observed
that this was consistent with the damage to their home, where
the "concrete walls had suffered from a substantial
impairment," (id. ¶ 15), but were
"unable to abruptly collapse because they are anchored
at the top with bolts to the house and at the bottom by the
basement floor and are compressed" by the house's
weight, (id. ¶ 23).
this time and prior to the completion of the petrographic
test, Plaintiffs filed an insurance claim with Defendant for
coverage of the foundation damage. (Id. ¶ 8.)
Defendant sent an insurance adjuster to Plaintiffs' home
and then denied the claim on the grounds that "the
cracks were caused by settlement and therefore the claim was
excluded under the Settling, Cracking, Shrinking, Bulging or
Expansion exception" ("Settlement Exception").
(Id. ¶ 12.)
October 28, 2018, Plaintiffs filed a complaint in Connecticut
superior court, claiming that Defendant had wrongfully denied
their insurance claim. (Notice of Removal [Doc. # 15]
¶l.) That suit was then removed to the United States
District Court for Connecticut on the basis of diversity.
(Id.) Plaintiffs' suit contains three counts.
First, Plaintiffs assert breach of contract, on the basis
that Defendant improperly invoked the Settlement Exception
when "settlement was not the cause of the foundation
cracks." (First Am. Compl. ¶ 12.) Second, they
claim that Defendant breached the implied covenant of good
faith and fair dealing. Third, Plaintiffs allege that
Defendant violated CUIPA and CUTPA.
moves to dismiss all lliree counts under Fed.R.Civ.P.
12(b)(6) for failure to state a claim on which relief can be