Alexander et al v. General Insurance Company Of America

Filing 32

ORDER denying 23 Motion for Reconsideration. Signed by Judge Stefan R. Underhill on 1/17/2017. (Landman, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

APRIL ALEXANDER and JOSEPH
WALKER,
Plaintiffs,

No. 3:16-cv-59 (SRU)

v.
GENERAL INSURANCE COMPANY OF
AMERICA,
Defendant.
ORDER
On January 14, 2016, April Alexander and Joseph Walker (“plaintiffs”) filed an action
against their homeowner’s insurance company, General Insurance Company of America
(“General Insurance”), alleging various state law claims arising out of an insurance coverage
dispute between the parties. Plaintiffs’ allegations stem from the fact that General Insurance
failed to provide coverage for the deterioration of the basement walls of plaintiffs’ home. On
July 7, 2016, I granted General Insurance’s motion to dismiss (doc. # 21), and plaintiffs filed a
motion for reconsideration (doc. # 23) on July 21, 2016.
For the reasons set forth below, I deny the motion for reconsideration.
I.

Background
April M. Alexander and Joseph Walker own and occupy the residential property at 23

Muddy Brook Road, Ellington, Connecticut. The residence was constructed in 1984 and has
been insured by General Insurance since Alexander purchased the property in July 2013.
In May of 2015, plaintiffs discovered—through their realtor—a series of horizontal and
vertical cracks in their basement walls. Upon further inquiry, plaintiffs discovered that the form
of “pattern cracking” found in the basement walls of their home was caused by a chemical

compound found in walls constructed in the late 1980s and the early 1990s with concrete most
likely from the J.J. Mottes Concrete Company. The result of the condition is that the home’s
walls are in danger of falling in, which would then cause the entire home to fall into the
basement.
In June 2015, plaintiffs notified General Insurance of the defect in their basement walls
and made a claim for coverage in accordance with the terms of their insurance policy. That same
month, General Insurance denied plaintiffs’ claim for coverage.
The parties agree that the policy would only cover the condition if it put the home in a
state of “collapse,” as defined by the policy. Under the policy’s definition, a “collapse” is “an
abrupt falling down or caving in of a building or any part of a building . . . .” Exhibit A at 14
(doc. # 1-1). Furthermore, the policy states 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.” Id.
On July 7, 2016, I granted General Insurance’s motion to dismiss on the ground that the
policy’s language expressly excludes coverage for cracking in the basement walls. I held that the
policy’s definition of “collapse” was unambiguous and expressly did not cover the alleged
“cracking” and/or “bulging” of the plaintiffs’ basement walls. On July 21, 2016, plaintiffs’ filed
a motion for reconsideration in which they set forth substantially the same arguments they raised
at oral argument on the motion to dismiss.
II.

Standard of Review
The standard for granting motions for reconsideration is strict; motions for

reconsideration “will generally be denied unless the moving party can point to controlling
decisions or data that the court overlooked—matters, in other words, that might reasonably be
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expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995). Motions for reconsideration will not be granted where the party merely
seeks to relitigate an issue that has already been decided. Id. The three major grounds for
granting a motion for reconsideration in the Second Circuit are: (1) an intervening change of
controlling law, (2) the availability of new evidence, or (3) the need to correct a clear error or
prevent manifest injustice. Virgin Atlantic Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (citing 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice & Procedure § 4478).
The primary function of a motion for reconsideration “is to present the court with an
opportunity to correct manifest errors of law or fact or to consider newly discovered evidence.”
LoSacco v. City of Middletown, 822 F. Supp. 870, 876 (D. Conn. 1993), aff’d, 33 F.3d 50 (2d
Cir. 1994). A court is permitted to reconsider its ruling if such ruling overlooked controlling
data or law that, had it been considered, would have altered the court’s conclusion. Shrader, 70
F.3d at 257.
III.

Discussion
Plaintiffs have failed to meet the high bar that would justify reconsideration of my prior

ruling. Plaintiffs have not identified any controlling decision that I overlooked, any new
evidence that would affect my prior ruling, or any clear error or manifest injustice in need of
correction. Rather, plaintiffs’ motion merely attempts to relitigate arguments that were
considered and rejected on oral argument on the motion to dismiss. To the extent that plaintiffs
raise new arguments, such arguments are without merit and not supported by controlling
authority. Accordingly, the motion for reconsideration must be denied.

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Plaintiffs’ motion for reconsideration raises four issues. For the purposes of the motion
for reconsideration, however, I will only address the first issue: whether a “collapse,” as defined
by the policy, occurred. I need not address plaintiffs’ additional arguments because they do not
alter the conclusion—which I decline to reconsider—that General Insurance is not bound to
cover the alleged damage to plaintiffs’ home because no “collapse” occurred.
Plaintiffs seek to have me reconsider my ruling that the policy’s definition of “collapse”
is ambiguous. In support of their argument, plaintiffs cite noncontrolling case law—most of
which I have already considered and rejected as either not on point or unpersuasive. See
7/7/2016 Motion Hr’g Tr. (“Tr”) at 8-10, 16 (doc. # 22).
Plaintiffs’ additional cited cases do not point to controlling authority nor do they identify
any cause for me to reconsider my prior ruling because they do not add to plaintiffs’ arguments I
considered at oral argument. Tr. at 11-18. At oral argument, plaintiffs’ attempted to argue that
the disjunctive use of the terms “falling down” and “caving in” established that there must be
something less than a complete falling down. Tr. at 3. I noted that I did not disagree with that
proposition. Id. Rather, I held that plaintiffs’ failed to allege that either a falling down or caving
in had occurred. Tr. at 17-18. At one point, plaintiffs’ counsel even admitted that the policy had
been written to expressly exclude what had occurred. Tr. at 15.
Plaintiffs cannot avoid the fact that their basement walls are still standing. The only
allegations of impairment to the structural integrity of the walls are allegations that the walls are
“cracking” or—alleged at oral argument—that they are “bulging.” Both conditions are expressly
excluded under the definition of the policy and it is clear that no collapse has occurred. See
Sports Domain, LLC v. Max Specialty Ins. Co., 2011 WL 6989864, at *2 (Conn. Super. Ct. Dec.
19, 2011) (sagging roof not “collapse” because “sagging” was explicitly excluded in definition of

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collapse); Squairs v. Safeco Nat. Ins. Co., 136 A.D.3d 1393, 1394 (N.Y. App. Div.), leave to
appeal denied, 27 N.Y.3d 907 (2016) (no collapse occurred if no abrupt falling down or caving
in occurred; state of “imminent collapse” is not “collapse”); Miller v. First Liberty Ins. Corp.,
2008 WL 2468605, at *4 (E.D. Pa. June 17, 2008) (no collapse when “no evidence of a sudden
and entire falling down or caving in of a building or any part of a building”); Rector St. Food
Enterprises, Ltd. v. Fire & Cas. Ins. Co. of Connecticut, 35 A.D.3d 177, 178 (2006) (“two- to
three-inch-wide cracks in its facade . . . sinking, out of plumb, and leaning” do not constitute
“abrupt collapse”). Plaintiffs’ have not cited to controlling authority or additional evidence that
would cause met to reconsider such ruling.
IV.

Conclusion
In sum, plaintiffs have not presented any evidence or controlling case law that would

cause me to reconsider my prior decision, nor have they identified manifest injustice in need of
correcting. For the foregoing reasons, plaintiffs’ motion for reconsideration (doc. # 23) is
denied.
So ordered.
Dated at Bridgeport, Connecticut, this 17th day of January 2017.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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