Lees et al v. Allstate Insurance Company
Filing
52
ORDER granting 39 Motion for Summary Judgment. Defendant's motion for summary judgment is granted, and this case is dismissed. The Clerk of the Court is directed to close this case. Signed by Judge Victor A. Bolden on 11/30/17. (McDonough, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALAN D. LEES
and ROMELA J. LEES,
Plaintiffs,
No. 3:15-cv-1050 (VAB)
v.
ALLSTATE INSURANCE CO.,
Defendant.
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Alan and Romela Lees (“The Leeses” or “Plaintiffs”) sued Allstate Insurance Co.
(“Allstate” or “Defendant”) after Allstate denied coverage for crumbling concrete in the Leeses’
finished basement, claiming breach of contract, breach of the covenant of good faith and fair
dealing, and unfair and deceptive practices.
Allstate moves for summary judgment, arguing that the insurance policy at issue
unambiguously covers only sudden and accidental collapses—not, according to Allstate, the
gradual deterioration damaging the Leeses’ basement. Allstate argues that it properly denied
coverage and did not breach its contract. Allstate also argues that it cannot have breached the
covenant of good faith and fair dealing or engaged in unfair and deceptive practices because it
did not breach its contract with the Leeses, and even if the Court concludes that Allstate did
breach its contract, it did not do so with malicious intent.
For the reasons discussed below, Allstate’s motion for summary judgment is
GRANTED.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On August 6, 2014, Alan and Romela Lees purchased a house, believing it had only
minor defects. Compl. ¶ 4. Before buying the house, they worked with an inspector, who spotted
cracks in the basement walls but recommended only that the Leeses fill the cracks to prevent
water leaks, and monitor them. Stmt. Material Facts (“SMF”) at 7, ECF No. 45. The Leeses also
purchased an annually renewing homeowner’s insurance policy from Allstate. Id. at 2.
The insurance policy covers “sudden and accidental direct physical loss to property . . .
except as limited or excluded in this policy.” Compl., Ex. A at 8, ECF 1-1. Exclusions include:
Earth movement of any type, including, but not limited to
earthquake, volcanic eruption, lava flow, landslide, subsidence,
mudflow, pressure, sinkhole, erosion, or the sinking, rising, shifting,
creeping, expanding, bulging, cracking, settling or contracting of the
earth. This exclusion applies whether or not the earth movement is
combined with water.
Id. The policy does cover “sudden and accidental direct loss caused by fire, explosion, theft or
breakage of glass or safety glazing materials resulting from earth movement.” Id. But it does not
cover loss resulting from:
a) wear and tear, aging, marring, scratching, deterioration, inherent
vice, or latent defect;
b) mechanical breakdown;
c) growth of trees, shrubs, plants or lawns whether or not such
growth is above or below the surface of the ground;
d) rust or other corrosion, mold, wet or dry rot;
e) contamination, including, but not limited to the presence of toxic,
noxious or hazardous gasses, chemicals, liquids, solids or other
substances at the residence premises or in the air, land or water
serving the residence premises;
f) smog, smoke from the manufacturing of any controlled substance,
agricultural smudging and industrial operations;
g) settling, cracking, shrinking, bulging or expansion of pavements,
patios, foundations, walls, floors, roofs or ceilings;
h) insects, rodents, birds or domestic animals. We do cover the
breakage of glass or safety glazing materials caused by birds; or
i) seizure by government authority.
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Id. at 9-10.
The “Collapse” provision of the policy covers “(a) the entire collapse of a covered
building structure; (b) the entire collapse of part of a covered building structure; and (c) direct
physical loss to covered property caused by (a) or (b) above.” Id. at 17. The collapse “must be a
sudden and accidental direct physical loss” and must be caused by:
a) a loss [Allstate] cover[s] under Section I, Coverage C—Personal
Property Protection;
b) hidden decay of the building structure;
c) hidden damage to the building structure caused by insects or
vermin;
d) weight of persons, animals, equipment or contents;
e) weight of rain or snow which collects on a roof;
f) defective methods or materials used in construction, repair,
remodeling or renovation.
Id. Finally, “[c]ollapse does not include settling, cracking, shrinking, bulging or expansion.” Id.
About two months after moving in, the Leeses discovered a water leak in their basement.
SMF at 2; Compl. ¶ 2. They called a contractor to repair the problem, and he told them that he
suspected that they “had the J.J. Mottes concrete problem.” SMF at 2. In December 2014, an
engineer identified “pattern cracking,” a problem showing up in houses built in the 1980s and
early 1990s with concrete from the J.J. Mottes Concrete Company. Compl. ¶¶ 8-9. Evidently, the
crushed stone in the concrete rusts and expands, which eventually reduces the concrete to rubble.
Id. ¶¶ 10-11. The Leeses allege that, at some point before November 2014, “the basement walls
suffered a substantial impairment to their structural integrity,” and predict that eventually the
basement walls will “fall in due to the exterior pressure from the surrounding soil.” Id. ¶ 12.
The Leeses told Allstate about the damage to their basement walls on June 26, 2015.
SMF at 3. Allstate investigated the claim and, on July 6, 2015, denied coverage for the “long
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term cracking” of the foundation walls. Compl., Ex. B at 2, ECF No. 1-2. Allstate cited the
following language from the policy to explain its decision:
Losses We Do Not Cover . . . 5. Earth movement of any type,
including, but not limited to earthquake, volcanic eruption, lava
flow, landslide, subsidence, mudflow, pressure, sinkhole, erosion,
or the sinking, rising, shifting, creeping, expanding, bulging,
cracking, settling or contracting of the earth. This exclusion applies
whether or not the earth movement is combined with water.
We do cover sudden and accidental direct physical loss caused by
fire, explosion, theft or breakage of glass or safety glazing materials
resulting from earth movement.
15. a) wear and tear, aging, marring, scratching, deterioration,
inherent vice, or latent defect;
b) mechanical breakdown;
c) growth of trees, shrubs, plants or lawns whether or not such
growth is above or below the surface of the ground;
d) rust or other corrosion, mold, wet or dry rot;
e) contamination, including, but not limited to the presence of toxic,
noxious or hazardous gasses, chemicals, liquids, solids or other
substances at the residence premises or in the air, land or water
serving the residence premises;
f) smog, smoke from the manufacturing of any controlled substance,
agricultural smudging and industrial operations;
g) settling, cracking, shrinking, bulging or expansion of pavements,
patios, foundations, walls, floors, roofs or ceilings;
h) insects, rodents, birds or domestic animals. We do cover the
breakage of glass or safety glazing materials caused by birds; or
i) seizure by government authority.
Id. at 2-3; Compl., Ex. B, ECF No. 1-2.
After Allstate denied the claim, two expert engineering witnesses looked at the property:
David Grandpré for the Leeses and Leonard Morse-Fortier for Allstate. SMF at 6. Both experts
agree that long-term deterioration caused the cracking conditions. Id. Mr. Grandpré, however,
concludes that the long-term deterioration was the result of a series of acute, sudden events
causing cracking in the concrete over time. Id. Mr. Morse-Fortier determines that the cracking
was not a sudden event. Id. The experts found no imminent danger of the walls caving. Id. at 6-7.
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The Leeses sued Allstate for breach of contract (Count I), breach of the implied covenant
of good faith and fair dealing (Count II), and unfair and deceptive practices in violation of the
Connecticut Unfair Insurance Practice Act (CUIPA) and the Connecticut Unfair Trade Practices
Act (CUTPA) (Count III). Compl. at 2-9.
Allstate now moves for summary judgment, arguing that “losses for both cracking of
walls and faulty or defective construction materials are specifically excluded under the Allstate
Policies,” and “the ‘collapse’ exception to the Policy exclusions does not apply because there
was no ‘sudden and accidental’ ‘entire collapse’ during the Allstate policy period.” Mot. Summ.
J. at 1, ECF No. 39. Allstate argues that the loss was “cracking caused by expansion of reactive
materials in the concrete aggregate,” not a collapse. Id. Allstate also argues that the damage to
the walls occurred gradually over more than thirty years, and was not a sudden event. Id. at 2.
Allstate seeks summary judgment on Counts II and III if the Court grants summary judgment on
Count I because “whenever an insurer is found to have no obligation to pay under an insurance
policy, it cannot be liable for bad faith or violation of CUTPA and CUIPA.” Id.
Allstate also seeks summary judgment on Counts II and III independent of the Court’s
decision on Count I. Id. Allstate argues first that the Leeses have not “offered any evidence to
support their claim that Allstate denied their claim as part of an improper business practice of
wrongfully denying claims for similar losses.” Id. Second, Allstate asserts that here, there is “at
minimum a good faith dispute as to coverage,” meaning that “there can be no liability under
CUIPA for alleged wrongful denials of coverage.” Id. at 3. Allstate contends that the Leeses have
failed to establish Allstate’s bad faith or a pattern of unfair business practices, and therefore
summary judgment must be granted in Allstate’s favor on Counts II and III.
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II.
STANDARD OF REVIEW
The Court will grant a motion for summary judgment if the record shows no genuine
issue as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). The moving party bears the initial burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The non-moving
party may defeat the motion by producing sufficient specific facts to establish that there is a
genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Id. at 247-48.
The Court must view any inferences drawn from the facts in the light most favorable to
the party opposing the summary judgment motion. Dufort v. City of New York, 874 F.3d 338,
343 (2d Cir. 2017). The Court will not draw an inference of a genuine dispute of material fact
from conclusory allegations or denials, Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.
2011), and will grant summary judgment only “if, under the governing law, there can be but one
reasonable conclusion as to the verdict,” Anderson, 477 U.S. at 250.
III.
DISCUSSION
This case, like a number of other recent decisions in the District of Connecticut, requires
the Court to examine the provisions of an insurance policy after homeowners have discovered
that the concrete supporting the walls of their house is deteriorating. See, e.g., Valls v. Allstate
Ins. Co., No. 3:16-cv-1310 (VAB), 2017 WL 4286301 (D. Conn. Sept. 27, 2017); Metsack v.
Liberty Mut. Fire Ins. Co., 3:14-cv-1150 (VLB), 2017 WL 706599 (D. Conn. Feb. 21, 2017).
The critical issue is whether the cracking concrete falls within a provision of the plaintiff’s
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homeowner’s insurance policy that covers collapses. Compl., Ex. A at 17, ECF 1-1. Because the
Leeses’ policy covers only “sudden and accidental direct physical loss to property,” Compl.,
Exh. A at 8, and not the gradual deterioration of property over time, this Court finds that
Allstate’s policy excludes coverage for the damage to the Leeses’ basement, and grants Allstate’s
motion for summary judgment on all three counts.
A.
Breach of Contract
Under Connecticut law, “the terms of an insurance policy are to be construed according
to the general rules of contract construction”; that is, the Court must discern the intent of the
parties as articulated in the provisions of the policy. Liberty Mut. Ins. Co. v. Lone Star Indus.,
Inc., 290 Conn. 767, 795 (2009). The Court reads the words of the policy with “their natural and
ordinary meaning,” and resolves any ambiguity in favor of the insured. Wentland v. American
Equity Ins. Co., 267 Conn. 592, 600-01 (2004). The Court must construe the contract language in
favor of the insured unless the Court “has ‘a high degree of certainty’ that the policy language
clearly and unambiguously excludes the claim.” Lone Star Indus., 290 Conn. at 796 (quoting
Kelly v. Figueiredo, 223 Conn. 31, 37 (1992)).
“[T]he insured bears the burden of showing that an insurance coverage covers the loss,
but the insurer bears the burden of showing that an exclusion applies to exempt it from covering
a claim.” MBIA Inc. v. Fed. Ins. Co., 652 F.3d 152, 158 (2d Cir. 2011). The Court resolves any
doubts in favor of the insured. Id. Whether a contract is unambiguous is a question of law for the
Court, appropriately decided at the summary judgment stage. Continental Ins. Co. v. Atlantic
Cas. Ins. Co., 603 F.3d 169, 180 (2d Cir. 2010). If the Court finds that the contract is
unambiguous, “the plain meaning of its terms control.” MBIA Inc., 652 F.3d at 158.
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Allstate argues that there is no ambiguity in this contract: the policy covers only sudden
and accidental direct physical loss of property, and excludes expansion or cracking of walls,
defective construction materials, and collapse, other than sudden and accidental collapse that
results in an entire collapse. Memo. in Support of Mot. Summ. J. at 8, ECF 40. Allstate also
argues that the policy unambiguously does not cover losses caused by rust or other corrosion. Id.
at 11.
The Leeses respond that their policy does cover losses resulting from the collapse of a
building, as long as the collapse is the result of an enumerated peril. Opp. Mot. Summ. J. at 7.
They argue that their cracking walls are the result of hidden decay and defective materials, both
covered under the policy. Id. at 8-9. The Leeses admit that “there was not the kind of
catastrophic ‘tumbling down’ or ‘falling down’ that one often associates with the word
‘collapse,’” but argue that the walls suffered substantial impairment of their structural integrity,
amounting to a “catastrophic ‘falling down’” under Beach v. Middlesex Mutual Assurance
Company, 205 Conn. 246, 252 (1987). Id. at 9.
Under Connecticut law, the substantial impairment of a wall’s structural integrity is
sometimes considered a collapse. See Beach, 205 Conn. at 252 (“[T]he term ‘collapse’ is
sufficiently ambiguous to include coverage for any substantial impairment of the structural
integrity of a building.”); Belz v. Peerless Ins. Co., 46 F. Supp. 3d 157, 163 (D. Conn. 2014)
(finding that collapse provision applied where the plaintiffs had “alleged that the cracks in the
basement walls are a substantial impairment to [the] walls’ structural integrity”). In Beach, the
Connecticut Supreme Court considered whether a policy that excluded coverage for damage
unless the “collapse of a building . . . not otherwise excluded ensues.” Beach, 205 Conn. at 250.
The court observed that the policy, which contained no terms to qualify “collapse,” did not
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“unambiguously limit its liability to a ‘collapse’ of a sudden and catastrophic nature.” Id. at 25152 (“If the defendant wished to rely on a single facial meaning of the term ‘collapse’ as used in
its policy, it had the opportunity expressly to define the term to provide for the limited usage it
now claims to have intended.”). The term “collapse,” therefore, was, in that policy, “sufficiently
ambiguous to include coverage for any substantial impairment of the structural integrity of a
building.” Id. at 252.
Here, the contract’s language, unlike the language in Beach, includes the phrase
“sudden,” and not the word “ensue.” This case hinges on whether “sudden and accidental,”
attached to “collapse,” “expressly . . . define the term to provide for the limited usage.” See
Beach, 205 Conn. at 250. The Leeses acknowledge that the chemical reaction that resulted in the
deterioration of the concrete was “gradual in nature,” but suggest that “the gradual reaction can
cause sudden events throughout the course of the deterioration”; in other words, an ongoing,
gradual chemical reaction eating away at the concrete does not preclude acute, sudden “release
events” that resulted in “the widespread map cracking condition.” Opp. Mot. Summ. J. at 12
(citing Grandpré Testimony, Exh. FF ¶¶ 17-20). The Leeses therefore argue that a reasonable
jury could find that the loss was the result of “a series of sudden events, though ultimately driven
by a long-term chemical reaction.” Id. at 13.
The Connecticut Supreme Court held in an environmental contamination case that the
modifiers “sudden and accidental” in a pollution context signal “a temporal quality, which
requires that the onset of the release in question occurs quickly or happens abruptly.” Buell
Indus., Inc. v. Greater New York Mut. Ins. Co., 259 Conn. 527, 536, 540-41 (2002). Courts in
this District have applied Buell’s reasoning in the cracking concrete context. In Metsack, for
example, the court considered whether an insurance policy that covered “sudden and accidental
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direct physical loss,” covered cracking concrete. 2017 WL 706599, at *3. The court explained
that, “[w]hile Beach and the numerous JJ Mottes concrete cases that have been heard in this
district have held that a collapse need not be ‘sudden’ to be covered, none of the policies
evaluated included the word ‘sudden’ within their ‘collapse’ provisions.” Id. at *7 (declining to
follow conclusion in Kelly v. Balboa Ins. Co., 897 F. Supp. 2d 1262, 1268 (M.D. Fla. 2012), that
“the inclusion of [the term] ‘sudden’ in the definition of LOSS for a policy that covers insect
damage creates an ambiguous policy provision”). The court noted that the parties had both
acknowledged that the basement walls deteriorated over many years, and concluded that the
limiting term “sudden” unambiguously excluded coverage for long-term deterioration of
concrete. Id. at *8.
Other decisions in this District considering similar language have found that when an
insurer added “sudden and accidental”—temporal, limiting language—to the term “collapse,” the
phrase was unambiguous. See Adams v. Allstate Insurance Co., No. 3:16-cv-1360, 2017 WL
3763837, slip op. at 5 (JBA) (D. Conn. Aug. 29, 2017) (granting Allstate’s motion to dismiss
claims for coverage of cracking concrete damages, which plaintiff admitted was a progressive
deterioration over time, under policy that covered “sudden and accidental direct physical loss to
property”); Valls, No. 3:16-cv-1310 (VAB) (D. Conn. Sept. 27, 2017) (granting Allstate’s
motion to dismiss because, under collapse provision that that provided coverage for accidental
and sudden collapse, the plaintiffs alleged “progressive deterioration” and not suddenness);
Manseau v. Allstate Ins. Co., No. 3:16-cv-1231 (MPS), 2017 WL 3821791, at *5 (D. Conn. Aug.
31, 2017) (“[T]he term ‘sudden,’ used in the context of the phrase ‘sudden and accidental’ is
unambiguous, and must be accorded a temporal quality.”); Agosti v. Merrimack Mut. Fire Ins.
Co. et al., No. 3:16-cv-1686 (SRU) (D. Conn. Aug. 28, 2017) (noting policy contained “a
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number of qualifiers, . . . which operate to reduce the scope of coverage” and finding that
plaintiffs had not shown that their basement walls had undergone an “entire collapse”); Clough v.
Allstate Ins. Co. et al., No. 3:17-cv-140 (JBA) (D. Conn. Aug. 29, 2017) (finding that the
plaintiffs had alleged “progressive deterioration that may in the future be punctuated with sudden
breaks or collapses,” but that “[w]ithout any allegation of suddenness, and with allegations that
explicitly contradict the possibility that any sudden loss has already occurred, Plaintiff’s claim is
not plausibly covered by the plain language of the policy unless it falls under the limited
exception for certain kinds of collapses”); Metsack v. Liberty Mut. Fire Ins. Co., 2017 WL
706599 (D. Conn. 2017) (finding sudden collapse unambiguous); Lajeunesse v. Allstate Ins. Co.,
3:16-cv-937 (AVC) (D. Conn. Aug. 31, 2017) (“By any reasonable interpretation, a contract
provision requiring a ‘sudden’ collapse in order to trigger coverage, would not include a barely
perceivable chemical reaction that slowly reduces the structural integrity of concrete over a
period of years.”); Carlson v. Allstate Ins. Co., 3:15-cv-1045 (MPS) (D. Conn. Sept. 27, 2017)
(“Because the term ‘sudden,’ as used in the collapse coverage provision, means temporally
abrupt, the Carlsons must point to evidence that the loss for which they seek coverage occurred
abruptly, and not merely unexpectedly, for it to be a covered collapse.”); Carney v. Allstate Ins.
Co., 3:16-cv-592 (VLB) (D. Conn. Feb. 14, 2017) (finding no bad faith when Allstate denied
coverage for cracking concrete where the “impairment to the property is caused by a gradual
chemical reaction and the property retains its structural integrity”).
This Court sees no reason to depart from the analyses in these cases, which find that a
sudden and accidental loss must occur abruptly, not gradually over time. The insurance policy at
issue here unambiguously covers only sudden and accidental losses, and Allstate did not breach
its contract with the Leeses by denying coverage for the concrete crumbling in their basement
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walls. Allstate is entitled to summary judgment on Count I as a matter of law. See Continental
Ins. Co., 603 F.3d at 180 (summary judgment is appropriate when a contract’s terms are
unambiguous). Summary judgment on Count One therefore is granted.
B.
Breach of the Implied Covenant of Good Faith and Fair Dealing
Allstate has also moved for summary judgment on Count II, which claims that Allstate
breached the implied covenant of good faith and fair dealing. In Connecticut, “[e]very contract
imposes upon each party a duty of good faith and fair dealing in its performance and its
enforcement.” See Warner v. Konover, 210 Conn. 150, 154 (1989); Central New Haven
Development Corporation v. La Crepe, Inc., 177 Conn. 212, 217 (1979). Generally, establishing
bad faith requires “both actual or constructive fraud, or a design to mislead or deceive another, or
a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an
honest mistake as to one’s rights or duties, but by some interested or sinister motive.” Habetz v.
Condon, 224 Conn. 231, 237 (1992).
The Leeses allege that Allstate did not “conduct a proper and otherwise sufficient
investigation of the insured residence following the claim for coverage of the loss.” Compl. at 5.
They argue that Allstate acted in bad faith because “Allstate ignored the coverage provided for
collapse and denied the Lees’ claim based upon other policy provisions clearly inapplicable and
wholly immaterial to the Lees’ claim for coverage.” Id. The Leeses also argue that Allstate acted
in bad faith by “intentionally cit[ing] portions of the policy wholly inapplicable to the Lees’
claim for coverage knowing full well that the Lees, like most insureds, are unsophisticated with
respect to the complex language contained in insurance policies.” Id.
Allstate responds that this question boils down to a coverage dispute, and that the Leeses
lack evidence that Allstate had any malicious intent, and therefore the claim does not support an
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argument that Allstate breached the covenant of good faith and fair dealing. Mot. Summ. J. at 20
(citing McCulloch v. Hartford life & Acc. Ins. Co., 363 F. Supp. 2d 169, 177 (D. Conn. 2005)
(“Allegations of a mere coverage dispute or a negligent investigation by an insurer will not state
a claim for bad faith . . . . Thus, a plaintiff cannot recover for bad faith if the insurer denies a
claim that is ‘fairly debatable,’ i.e., if the insurer had some arguably justifiable reason for
refusing to pay or terminating the claim.”)). The Court agrees.
Denying coverage in itself does not constitute bad faith where the insured’s right to
coverage is disputed. American National Fire Ins. Co. v. Kenealy, 72 F.3d 264, 271 (“[I]t is not
bad faith for an insurer to fight liability when policy coverage is unclear.”); Ingersoll, 829 F.2d
at 309-10. In light of other decisions in this District dismissing the underlying contract claim,
even if the Court had determined that whether the Leeses’ home endured a sudden catastrophic
event or an ongoing, gradual deterioration (or both) was a disputed question, it was not
unreasonable and does not imply fraud or a design to mislead the Leeses for Allstate to conclude
that the Leeses lacked coverage for their claim. Indeed, the issue would have been “fairly
debatable.” See McCulloch, 363 F. Supp. 2d at 177. Summary judgment on this Count therefore
is granted.
C.
Violation of CUIPA/CUTPA
The Leeses also claim that Allstate engaged in an unfair business practice in violation of
CUIPA and CUTPA. The Leeses allege that Allstate knew of many crumbling concrete claims in
Connecticut and participated in an “industry wide practice of denying coverage for concrete
decay claims,” even for those claims that reasonably should have been covered. Compl. 8.
Allstate responds that it had a good faith basis for denying coverage and therefore cannot
be in violation of CUIPA and CUTPA. Mot. Summ. J. at 22. Allstate argues that, even if this
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Court concludes that there are disputed facts over whether the Lees’s claim should have been
covered, the analysis was “fairly debatable,” and Allstate’s liability was not “reasonably clear.”
Id. at 23. Allstate further argues that the Lees “have not cited to any other claims or cases to
support their bald assertion that Allstate has engaged in [a] general business practice of wrongful
denials, and have therefore failed to establish that Allstate does not fairly settle claims ‘in which
liability has become reasonably clear,’ in violation of CUIPA.” Mot. for Summ. J. at 25.
Under the CUIPA, the Leeses would need to show that Allstate engaged in “unfair
settlement practices” with “sufficient frequency to indicate a general business practice.” Conn.
Gen. Stat. 38a-816(6); Conn. Gen. Stat. § 42-110a, et seq.; Belz, 204 F. Supp. 3d 457 (D. Conn.
2016) (denying insurance company’s motion for summary judgment on CUIPA claim because
the plaintiffs cited three other matters where insurance company unfairly settled disputes with
similar facts, and insurance the company did not provide evidence to contradict the plaintiffs’
claim); Metsack, 2017 WL 706599, at *9 (finding a genuine issue of material fact as to whether
the insurance company engaged in unfair business practice because “[i]n addition to offering
evidence that Liberty Mutual did not sufficiently investigate their claim, Plaintiffs have offered
evidence that Liberty Mutual and its affiliates have been involved in 19 separate lawsuits
(including the instant case) involving the denial of claims arising from defective JJ Mottes
concrete”).
The Leeses cite ten cases in their opposition to Defendant’s motion to dismiss that deal
with similar issues. Opp. Mot. Summ. J. at 28. But, when the insurer’s decision on whether to
cover a claim is “fairly debatable,” the plaintiff does not have a claim under CUTPA and
CUIPA. McCulloch, 363 F. Supp. 2d at 177. Defendant’s motion for summary judgment on this
Count therefore is granted.
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IV.
CONCLUSION
For all of the foregoing reasons, Defendant’s motion for summary judgment is
GRANTED.
SO ORDERED at Bridgeport, Connecticut, this 30th day of November, 2017.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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