Dino v. Safeco Insurance Co. of America
| Decision Date | 12 June 2018 |
| Docket Number | CV166010428S |
| Court | Connecticut Superior Court |
| Parties | Richard N. DINO, et al. v. SAFECO INSURANCE COMPANY OF AMERICA, et al. |
UNPUBLISHED OPINION
The plaintiffs, Richard and Melanie Dino, have brought this action against five insurance companies that insured their home from March 2000 through October 2015. Their claim arises out of the deteriorating condition of their basement walls caused by aggregate material used in the concrete that causes the oxidization and expansion of the concrete. The plaintiffs allege that this process is irreversible and will ultimately reduce the concrete to rubble with the result that the entire home will fall into the basement. The court has before it the defendant insurers’ motions for summary judgment. As explained below, the court concludes that the admissible evidence in the record all suggests the plaintiffs’ loss occurred in 2015 when they discovered the damage. There is no admissible evidence in the record sufficient to suggest otherwise. Under the manifestation trigger of coverage theory adopted by the court, only the Liberty policies are potentially triggered. As to Liberty, the court also concludes that questions of fact preclude the entry of summary judgment on its other coverage positions.
The plaintiffs’ home in Tolland was built in 1985 and they purchased it in 1995. An inspection of the home was conducted around the time of purchase and, to the extent it revealed any cracking in the basement walls, the cracks were typical of concrete basement walls and not a matter of concern. Soon thereafter, the plaintiffs finished the basement such that the concrete walls were no longer visible except in the furnace room, where the view of the walls was obscured by stored items, and in two other out-of-the-way places. The plaintiffs observed no cracking in their basement walls until July or August of 2015. At that time, media coverage of the widespread problem of deteriorating concrete walls in the area prompted the plaintiffs to inspect the walls in their furnace room. They consulted with the original builder, the local building inspector and a contractor and discovered that their basement walls appear to be afflicted with the same condition impacting the basement walls of many other area homeowners. Upon removing drywall to expose the concrete walls in the finished area of the basement, the plaintiffs discovered that the cracking was severe and the walls were "visibly bowing."
The plaintiffs had their home inspected on September 11, 2015 by a structural engineer, David Grandpre, who states that at the time of his inspection "the structural integrity of the concrete basement walls was substantially impaired by the cracking condition." He has also offered the opinion that the walls reached a point of substantial impairment of structural integrity ten years prior to his inspection. The defendants have challenged the admissibility of both of these opinions pursuant to State v. Porter, 241 Conn. 57 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct 1384, 140 L.Ed.2d 645 (1998).[1] By the time Grandpre inspected the walls in September 2015, they exhibited bulging and bowing, "evidence that the original concrete basement walls had begun to move inward due to the lateral pressure exerted by the exterior soil." Because the deteriorating condition of the concrete was irreversible and the walls would ultimately fail completely, Mr. Grandpre opines that the "only effective method for remedying the condition was the complete removal and replacement of the concrete portion of the original basement walls." In September 2015 work began to remove the original walls and replace them, with most of the work completed by December 2015.
The defendants and the periods during which they provided coverage to the plaintiffs are: Safeco Insurance Company of America ("Safeco") (March 2000 to April 2004); Twin City Fire Insurance Company ("Twin City")(April 2004 to October 2005); Middlesex Mutual Insurance Company ("Middlesex Mutual") (October 2005 to October 2007); [2] Sentinel Insurance Company ("Sentinel") (October 2007 to October 2013); and Liberty Mutual Insurance Company ("Liberty") (October 2013 through the commencement of suit in March 2016). All of the defendants denied the plaintiffs’ claims for coverage. The provisions of the defendants’ policies differ in material respects on some of the terms and conditions that are relevant to the plaintiffs’ claims for coverage. In one respect, however, they are substantially the same. Each policy covers only first party property losses that occur during the policy period.[3] This fact is dispositive of all of the pending motions, except Liberty’s.
Liberty’s policies covered the plaintiffs’ home at the time they discovered the damage to their basement walls. The plaintiffs claim coverage under the Liberty policies pursuant to the "Additional Coverage" for "Collapse." The collapse coverage provides as follows:
8. Collapse . We insure for direct physical loss to covered property involving collapse of a building or any part of a building caused only by one or more of the following:
The plaintiffs claim the damage to their basement walls constitutes a "collapse" under this language, whereas Liberty maintains the damage is outside this coverage, which "does not include settling, cracking, shrinking, bulging or expansion." Liberty also argues that the plaintiffs are claiming a loss to a "foundation" or "retaining wall," also excluded from the collapse coverage. Liberty further maintains the plaintiffs have not complied with the policy’s suit limitation provision, which states as follows:
Suit Against Us . No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.[4] Relying on the plaintiffs’ offer of Mr. Grandpre’s opinion that there were significant cracks in the walls ten years before he inspected them, Liberty argues that the plaintiffs not only cannot establish that the loss occurred during its policy periods, but that even if it is assumed the loss occurred on the first day of Liberty’s coverage, October 17, 2013, the plaintiffs commenced suit almost three years later and thus did not comply with the suit limitation provision.
The plaintiffs have asserted breach of contract claims against each of the defendants based upon their denials of coverage. As to each defendant they have also asserted a claim that their denial of coverage constitutes an unfair insurance practice under the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., because the defendants are engaged in a general business practice and a conspiracy orchestrated through the Insurance Services Office (ISO) to unreasonably refuse to provide coverage for claims involving crumbling concrete basement walls. They assert causes of action against the defendants based on the alleged unfair insurance practice pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants have moved for summary judgment on both the breach of contract and CUTPA/CUIPA claims.
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821.
"To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
An insurance contract...
To continue reading
Request your trial