United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
W. EGINTON SENIOR U.S. DISTRICT JUDGE
action, plaintiffs Robert and Ann Marie Houlihan challenge
the defendants Safeco Insurance Company of America and
American Commerce Insurance Co.'s failure to provide
coverage for the damage to basement walls of their home.
Plaintiffs allege breach of contract and violation of the
Connecticut Unfair Trade Practices Act (“CUTPA”)
against each defendant. Defendant American Commerce Insurance
has filed a motion to dismiss relative to counts three and
four. For the following reasons, the Court will grant the
motion to dismiss.
purposes of ruling on this motion to dismiss, the Court
assumes that all of the factual allegations in the complaint
are true. The Court also includes facts concerning the
insurance policies that plaintiff did not attach but that are
integral to the complaint.
own and occupy a home in South Windsor, Connecticut that was
built in 1985. Between 1994 and 2013, plaintiffs insured the
home with a policy issued by Safeco and its predecessor in
interest. Since 2013, plaintiffs have insured the property
with defendant American Commerce Insurance.
January 2017, plaintiffs hired a professional engineer who
inspected the basement walls of their home. He discovered
that their home was constructed with defective concrete and
that the basement walls had “pattern cracking”
caused by a chemical compound used in the late 1980s and
1990s. Plaintiffs allege that the concrete basement walls of
the home are in a state of collapse. However, they also
allege that they are currently occupying the home. They do
not allege that their home or any part of it has fallen down
or caved in.
requested coverage from American Commerce Insurance for the
damage caused by the condition of the basement walls. By
letter dated December 11, 2017, defendant American Commerce
Insurance denied the coverage request from plaintiffs.
Commerce Insurance Policy
American Commerce Insurance policy was issued to plaintiffs
for their home commencing June 4, 2013. The policy has been
renewed annually since that time.
policy insured against risk of direct physical loss but
excluded loss “[i]nvolving collapse” (except as
provided for in the Additional Coverages provision) caused by
“[f]reezing, thawing, pressure or weight of water or
ice, … to a … footing, foundation, bulkhead,
wall, or any other structure or device that supports all or
part of a building, or other structure.” It also
excluded loss from wear and tear, deterioration, latent
defect, and “[s]ettling, shrinking, bulging or
expansion, including resultant cracking, of …
footings, foundations, floors, roofs or ceilings.”
additional coverage provision, the policy defines
“collapse” as “an abrupt falling down or
caving in of a building or any part of a building with the
result that the building or part of the building cannot be
occupied for its current intended purpose.” It
specifies further that a “building or any part of a
building that is in danger of falling down or caving in is
not considered to be in a state of collapse[;]” that a
“part of a building that is standing is not considered
to be in a state of collapse even if it has separated from
another part of the building[;]” and that a
“building or any part of a building that is standing is
not considered to be in a state of collapse even if it shows
evidence of cracking, bulging, sagging, bending, leaning,
settling, shrinkage or expansion.”
function of a motion to dismiss is “merely to assess
the legal feasibility of the complaint, not to assay the
weight of the evidence which might be offered in support
thereof.” Ryder Energy Distrib. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984).
When deciding a motion to dismiss, the Court must accept all
well-pleaded allegations as true and draw all reasonable
inferences in favor of the pleader. Hishon v. King,
467 U.S. 69, 73 (1984). The complaint must contain the
grounds upon which the claim rests through factual
allegations sufficient “to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A plaintiff is
obliged to amplify a claim with some factual allegations to
allow the court to draw the reasonable inference that the
defendant is liable for the alleged conduct. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
maintain that the policy provides coverage for a state of
collapse and that defendant American Commerce Insurance has
breached its contract. Plaintiffs argue that the words
“abrupt, ” “collapse” and phrase