United States District Court, D. Connecticut
DENNIS M. MOURA & ERICA R. MOURA, Plaintiffs,
HARLEYSVILLE PREFERRED INSURANCE COMPANY & LIBERTY INSURANCE CORPORATION, Defendants.
RULING AND ORDER ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
and Erica Moura (“the Mouras” or
“Plaintiffs”) originally brought this lawsuit
against Harleysville Preferred Insurance Company and Liberty
Insurance Corporation (collectively,
“Defendants”) in Connecticut Superior Court.
Harleysville Preferred Insurance Company
(“Harleysville”) then removed this lawsuit to the
District of Connecticut.
Mouras' Amended Complaint brings breach of contract
claims and claims under the Connecticut Unfair Insurance
Practices Act (“CUIPA”) and the Connecticut
Unfair Trade Practices Act (“CUTPA”) against both
moved to dismiss the counts against Harleysville alone-Counts
One, Two, and Three of the Amended Complaint-on March 20,
2019. That motion is now before the Court.
following reasons, the motion to dismiss is
GRANTED in part and DENIED
in part. Count One, seeking declaratory
relief, is dismissed from the case, but the claims brought
under Counts Two and Three, for breach of contract and under
CUTPA, will remain.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Allegations 
case is one of many “crumbling concrete” cases in
of 2009, the Mouras purchased their home in South Windsor,
Connecticut, a home built in 1998. Am. Compl. ¶ 7.
2009 until 2012, the Mouras allegedly insured their home
through a homeowner's policy issued by Harleysville.
Id. ¶ 8.
2012, the Mouras have allegedly insured their home through a
homeowner's policy issued by Liberty Insurance
Corporation (“Liberty”). Id. ¶ 48.
March of 2017, the Mouras “noticed that the basement
walls of their home had a series of horizontal and vertical
cracks throughout after seeing local news coverage concerning
the deterioration of basement walls in Tolland County.”
Id. ¶ 10. The Mouras allegedly immediately
began investigating the “pattern cracking, ”
consulting with “various contractors and
professionals.” Id. ¶ 11.
Mouras allegedly learned through their investigation that the
form of “pattern cracking” found in the basement
walls of their home was due to a chemical compound found in
certain basement walls constructed in the late 1980s and the
early 1990s with concrete most likely from the J.J. Mottes
Concrete Company, ” id. ¶ 12, and that
this chemical compound would, when mixed “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.
Mouras allege that “[a]t some point between the date on
which the basement walls were poured and March of 2017 the
basement walls suffered a substantial impairment to their
structural integrity.” Id. ¶ 15.
Plaintiffs allege that “[i]t is only a question of time
until the basement walls of the plaintiffs' home will
fall in due to the exterior pressure from the surrounding
soil, ” id. ¶ 16, and that “[w]ith
the falling in of the basement walls, the entire home will
fall into the basement, ” id. ¶ 17.
Mouras allege that, “[p]ursuant to the terms of the
homeowner's policies issued to the plaintiffs,
Harleysville agreed to provide coverage for the collapse of a
building or any part of a building caused by hidden decay or
the use of defective materials or methods in construction,
” id. ¶ 20, and that “[t]he damage
suffered to the basement walls of the plaintiffs' home is
a coverage loss under the terms of one or more of the
homeowner's policies issued by Harleysville during the
years that it covered their home, ” id. ¶
about April 17, 2017, the Mouras allegedly notified
Harleysville of the condition of their basement walls.
Id. ¶ 18.
letter dated February 23, 2018, Harleysville allegedly denied
coverage. Id. ¶ 22. The Mouras claim that the
“grounds offered by Harleysville for the denial of
coverage are contrary to the express provisions of the
homeowner's insurance policies it issued to the
[P]laintiffs.” Id. ¶ 23.
Mouras further allege that Harleysville
participates in the Insurance Services Office, Inc.,
(“ISO”) which is a cooperative organization
formed and controlled by its participants for the purpose,
among others, of collecting data on the type of claims made,
the policy provisions cited for the basis of each claim, the
geographic areas in which the claimed damage has occurred,
and the actions taken by insurers in response to such claims.
Id. ¶ 32. The ISO is allegedly
“instrumental in drafting policy provisions, ”
and it allegedly “prepares interpretations or advice as
to the meaning of these provisions.” Id.
the ISO, Harleysville allegedly “has knowledge that
most, if not all, insurers responding to concrete decay
claims in residential structures in northeastern Connecticut
have attempted to deny coverage on the grounds that the
condition is the result of one or more excluded causes,
” id. ¶ 36, and “has knowledge of
cases . . . where the plaintiffs were awarded judgment
against the insurer on a concrete decay claim based on policy
language nearly identical to that in the [P]laintiffs'
policy, ” id. ¶ 37.
February 8, 2018, the Mouras sued Harleysville and Liberty
Insurance Company in Connecticut Superior Court. Notice of
Removal Ex. A, ECF No. 1-1 at 7 (Mar. 9, 2018) (Complaint,
Moura v. Harleysville Preferred Ins. Co.,
TTD-cv18-6014177-S (Feb. 8, 2018)).
March 9, 2018, Harleysville removed the case to this Court.
Notice of Removal, ECF No. 1 (Mar. 9, 2018).
April 18, 2018, the Mouras filed a motion to amend or correct
their Complaint. Mot. to Amend/Correct Compl., ECF No. 19
(Apr. 18, 2018). Liberty Insurance Company objected to the
motion to amend or correct on May 9, 2018. Obj. to Pls.'
Mot. for Leave to Amend Compl., ECF No. 25 (May 9, 2018).
February 26, 2019, the Court granted in part and denied in
part Plaintiffs' motion to amend or correct. Order
Granting in Part and Denying in Part Mot. to Amend/Correct
Compl., ECF No. 31 (Feb. 26, 2019).
March 8, 2019, Plaintiffs submitted an Amended Complaint. Am.
Compl., ECF No. 32 (Mar. 8, 2019). The Amended Complaint
seeks a declaratory judgment, stating that Harleysville
denied coverage to Plaintiffs in violation of the terms of
the Plaintiffs' insurance policy; brings a breach of
contract claim against Defendants for denying claims for
crumbling concrete coverage (Counts Two and Four); and brings
claims under CUIPA and CUTPA (Counts Three and Five).
March 20, 2019, Harleysville moved to dismiss all claims
against Harleysville- Counts One, Two, and Three of the
Amended Complaint. Mot. to Dismiss, ECF No. 33 (Mar. 20,
2019); Mem. Sup. Mot. to Dismiss (“Def.'s
Mem.”), ECF No. 34 (Mar. 20, 2019).
April 10, 2019, Plaintiffs filed a memorandum in opposition
to Harleysville's motion to dismiss. Mem. Opp. Mot. to
Dismiss (“Pls.' Mem.”), ECF No. 35 (Apr. 10,
April 23, 2019, Harleysville replied to Plaintiffs'
response to Harleysville's motion to dismiss. Reply to
Response to Mot. to Dismiss (“Def.'s Reply”),
ECF No. 36 (Apr. 23, 2019).
October 16, 2019, the Court held a hearing on
Harleysville's motion to dismiss. Minute ...