Andrew et al v. Allstate Insurance Company

Filing 30

ORDER. For the reasons stated in the attached, Defendant's 22 Motion to Dismiss is GRANTED. The Clerk is directed to close this case. Signed by Judge Michael P. Shea on 7/24/2018. (Taykhman, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

KENNETH E. ANDREW
ANDREW,
Plaintiffs,

and

SHEILA

M.
No. 3:17-cv-1192 (MPS)

v.
ALLSTATE INSURANCE COMPANY
Defendant.

RULING ON MOTION TO DISMISS
Plaintiffs Kenneth E. Andrew and Sheila M. Andrew (collectively, “Plaintiffs”) filed this
action in state court against their homeowner’s insurance provider, Allstate Insurance Company
(“Allstate”), for failure to pay for damages to the basement walls of their home caused by cracking
concrete. (ECF No. 1.) Allstate removed the case to this court on July 18, 2017. (ECF No. 1.)
Plaintiffs bring claims of breach of contract (Count One) and unfair and deceptive practices in
violation of the Connecticut Unfair Insurance Practices Act, Conn. Gen. Stat. § 38a–816 et
seq. (“CUIPA”) and the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42–110a et
seq. (“CUTPA”) (Count Two). Allstate has moved to dismiss both claims on the grounds that the
insurance policy at issue did not cover the alleged damage, and the CUIPA/CUTPA claim on the
additional ground that Allstate’s denial of coverage was not in bad faith. (ECF No. 22.) For the
reasons set forth below, the motion to dismiss is GRANTED.
I.

Factual Allegations
According to the allegations in the amended complaint, Plaintiffs have owned their home

in Willington, Connecticut, since 2002. (ECF No. 20 ¶ 4.) Allstate has insured the home at all
relevant times. (Id. ¶ 5.) Plaintiffs have made all required insurance payments. (Id. ¶ 6.)

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In December 2016, while attempting to sell their home, Plaintiffs were notified that the
basement walls had a series of horizontal and vertical cracks. (Id. ¶ 7.) Plaintiffs began to
investigate this “pattern cracking” by consulting area professionals and learned that the condition
of their basement walls was due to a “chemical compound found in certain basement walls” that
were constructed between the early 1980s and late 1990s using concrete “most likely from the J.J.
Mottes Concrete Company.” (Id. ¶¶ 8-9.) Plaintiffs learned that the aggregate used in
manufacturing the concrete during that time period contained a chemical compound which, “with
its mixture 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. ¶ 10.)
Plaintiffs allege that “[a]t some point between the date on which the basement walls were
poured and late December of 2016, the basement walls suffered a substantial impairment to their
structural integrity.” (Id. ¶ 12.) As a result, Plaintiffs claim that “[i]t is only a question of time until
the basement walls of [their] home will fall in due to the exterior pressure from the surrounding
soil.” (Id. ¶ 13.)
Plaintiffs notified Allstate of the condition and their claim for coverage on February 3,
2017. (Id. ¶¶ 18-19.) Allstate denied their claim for coverage, claiming that the homeowners’
policies issued to the Plaintiffs do not afford coverage for the condition affecting the basement
walls. (Id. ¶ 20.) As a result of the denial, Plaintiffs expect that replacing their basement walls,
along with related restoration of their deck, landscaping, driveway, and walks, will cost at least
$250,000. (Id. ¶ 24.)

2

Plaintiffs’ Homeowner’s Policy (“Policy”) has three “Sections.” (ECF No. 22-2 at 24.)1
The provisions at issue in this case appear in “Section I – Your Property,” which addresses property
coverage and contains the following subsections: “Coverage A Dwelling Protection,” “Coverage
B Other Structures Protection,” “Coverage C Personal Property Protection,” “Additional
Protection,” and “Section I—Conditions.” (Id.)
Under “Section I – Your Property,” the Policy states:
Losses We Cover Under Coverages A and B: We will cover sudden and accidental
direct physical loss to property described in Coverage A—Dwelling Protection and
Coverage B—Other Structures Protection except as limited or excluded in this
policy.
Losses We Do Not Cover Under Coverages A and B: We do not cover loss to the
property described in Coverage A—Dwelling Protection or Coverage B—Other
Structures Protection consisting of or caused by:
....
12. Collapse, except as specifically provided in Section I—Additional Protection,
under item 11, “Collapse.”
...
In addition, we do not cover loss consisting of or caused by any of the following:
15. a) wear and tear, aging, marring, scratching, deterioration, inherent vice, or
latent defect;
...
d) rust or other corrosion, mold, wet or dry rot;
...
g) settling, cracking, shrinking, bulging or expansion of pavements, patios,
foundations, walls, floors, roofs or ceilings;
....
22. Planning, Construction or Maintenance, meaning faulty, inadequate or
defective:
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Although the Policy was not attached to the complaint or formally incorporated by reference, as
discussed below, “the court may nevertheless consider [a document] where the complaint relies
heavily upon its terms and effect, which renders the document integral to the complaint.”
Chambers v. Time Warner, 282 F.3d 147, 153 (2d Cir. 2002) (citation and quotation marks
omitted). The Policy attached to Allstate’s motion to dismiss was effective beginning December
2, 2016. (ECF No. 22-2 at 6.) While Plaintiffs refer to “the terms of all of the homeowner’s
policies” issued to them by Allstate (ECF No. 20 ¶ 19 (emphasis added)), they do not allege that a
different policy applies and cite throughout their brief in opposition to the motion to dismiss the
Policy attached by Allstate, and no other policy.

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...
c) materials used on repair, construction, renovation or remodeling . . . .
(Id. at 29-31.)
The “Additional Protection” portion of Section I states:
11. Collapse
We will cover:
(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.
For coverage to apply, the collapse of a building structure specified in (a) or (b)
above must be a sudden and accidental direct physical loss caused by one or more
of the following:
...
(b) hidden decay of the building structure;
(c) hidden damage to the building structure caused by insects or vermin;
...
(f) defective methods or materials used in construction, repair, remodeling or
renovation.
Collapse does not include settling, cracking, shrinking, bulging or expansion.
(ECF No. 22-2 at 38.)
Plaintiffs also allege that Allstate participates in the Insurance Services Office, Inc.
(“ISO”), 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.” (ECF No. 20 ¶ 28.) The ISO is allegedly
“instrumental in drafting policy provisions and . . . prepar[ing] interpretations or advice as to the
meaning of these provisions.” (Id. ¶ 29.) Plaintiffs allege that, through participation in ISO, Allstate
has knowledge of the number of “concrete decay” claims that have arisen in northeastern
Connecticut. (Id. ¶ 31.) Through the ISO, Allstate allegedly knows that most, if not all, insurers
responding to concrete decay claims by homeowners in northeastern Connecticut have attempted

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to deny coverage on the grounds that the condition results from causes excluded from the
homeowners’ policies, such as “ordinary wear and tear,” “water beneath the surface of the ground,”
“earth movement and/or settling,” “homeowner negligence in failing to waterproof the exterior of
the concrete,” or on the grounds that the claims are untimely. (Id. ¶ 32.)
Plaintiffs allege that Allstate gave them a “knowingly false and misleading reason for the
denial of coverage,” notwithstanding its knowledge of the “collapse” provisions of the Policy. (Id.
¶ 34.) According to Plaintiffs, by denying their claim for coverage, Allstate “has become a part of
or confirmed its participation in an insurance industry wide practice of denying coverage for
concrete decay claims, notwithstanding the clear provisions of the homeowner’s insurance
policies” it issued to Plaintiffs. (Id. ¶ 35.) Thus, Plaintiffs claim that Allstate has “failed to attempt
in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has
become reasonably clear” by “arbitrarily refus[ing] to pay a claim which a reasonable person
would determine is covered by one or more” of the policies issued to Plaintiffs. (Id. ¶ 36.) Plaintiffs
claim that this has become part of Allstate’s “general business practice.” (Id. ¶ 37.)
In support of these claims, Plaintiffs cite in their amended complaint Allstate’s
involvement in at least four other cases involving homeowners experiencing the same damage and
Allstate’s refusal to provide coverage, under identical policy language: Carney v. Allstate Ins. Co.,
No. 3:16-CV-00592 (VLB) (D. Conn.); Ford et al. v. The Standard Fire Ins. Co. et al., No. WWMCV-16-6011041-S (Windham Super. Ct.); Lees et al. v. Allstate Ins. Co., No. 3:15-CV-01050
(VAB) (D. Conn.); and Neborsky et al. v. Allstate Ins. Co., No. TTD-CV-16-6011467-S (Tolland
Super. Ct.).
Further allegations in the amended complaint are discussed in the analysis below.
II.

Legal Standard

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On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), I take the plaintiffs’
factual allegations in the complaint “to be true and [draw] all reasonable inferences in” their favor.
Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court need not
accept legal conclusions as true and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.
In deciding a Rule 12(b)(6) motion, I may consider documents attached to, integral to, or
incorporated by reference in the complaint. See Fed. R. Civ. P. 10(c); Chambers v. Time Warner,
282 F.3d 147, 153 (2d Cir. 2002) (“Even where a document is not incorporated by reference, the
court may nevertheless consider it where the complaint relies heavily upon its terms and effect,
which renders the document integral to the complaint.”) (internal quotations omitted).
“An insurance policy is to be interpreted by the same general rules that govern the
construction of any written contract.” Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5
(2008) (citation and quotation marks omitted).
If the terms of the policy are clear and unambiguous, then the language, from which
the intention of the parties is to be deduced, must be accorded its natural and
ordinary meaning . . . . When interpreting an insurance policy, we must look at the
contract as a whole, consider all relevant portions together and, if possible, give
operative effect to every provision in order to reach a reasonable overall result….
As with contracts generally, a provision in an insurance policy is ambiguous when
it is reasonably susceptible to more than one reading. Under those circumstances,
any ambiguity in the terms of an insurance policy must be construed in favor of the
insured because the insurance company drafted the policy.
Id. at 5-6 (citations, quotation marks, and alterations omitted).

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III.

Discussion
Allstate moves to dismiss all of Plaintiffs’ claims. It argues that the unambiguous language

of the Policy does not cover Plaintiffs’ alleged loss, and that, because the Policy does not afford
coverage, Plaintiffs have failed to state a claim for breach of contract or violation of CUIPA or
CUTPA. For the reasons that follow, I agree.
A. Breach of Contract
1. Applicable Policy
Allstate claims that the damage to Plaintiffs’ home was excluded from coverage by the
plain language of the Policy in effect at the time of the claimed loss. (ECF No. 22-1 at 2.) Plaintiffs
allege that they “promptly notified the defendant of the condition of their basement walls on
February 3, 2017,” and by doing so, they “made a timely claim for coverage of the loss in
accordance with the terms of all of the homeowner’s policies issued to them by the defendant.”
(ECF No. 20 ¶ 19.) Plaintiffs refer throughout the amended complaint and their opposition papers
to “the homeowner’s policies” but do not allege that a policy other than the Policy attached to
Allstate’s motion to dismiss, effective beginning December 2, 2016, applies to their claims, or that
Allstate incorrectly relied on the Policy, rather than on another policy or another version of the
Policy, in denying their claim for coverage. Rather, Plaintiffs cite specific provisions of the Policy
throughout their opposition brief. (See, e.g., ECF No. 23 at 5-6.) As a result, although Plaintiffs
did not attach the Policy to their complaint, I must decide whether they have stated plausible claims
under the Policy.
2. “Collapse” Coverage
Plaintiffs claim that under the Policy, Allstate “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

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methods in construction.” (ECF No. 20 ¶ 21.) Plaintiffs argue that the terms of the Policy appear
to provide coverage for the collapse of a building structure or part of a building structure, and that
the Policy does not define “collapse,” a term the Connecticut Supreme Court has already defined
broadly to mean any “substantial impairment to the structural integrity” of a building. (ECF No.
23 at 5 (citing Beach v. Middlesex Mut. Ass. Co., 205 Conn. 246, 252 (1987).) Plaintiffs argue that
they allege such a structural impairment caused by one of two “enumerated perils” set forth in the
“collapse” provisions of the Policy, i.e., “hidden decay or “defective methods or materials” used
in the construction of the home. (Id.; ECF No. 22-2 at 38.) Plaintiffs further argue that, although
the Policy states that a covered collapse must be “a sudden and accidental direct physical loss,”
the term “sudden” is ambiguous and does not necessarily denote temporal abruptness, because
many of the enumerated perils in the collapse provision “contemplate damage occurring over a
period of time.” (ECF No. 23 at 8.) Finally, Plaintiffs argue that, even if “sudden” means
temporally abrupt, the amended complaint passes muster because it includes allegations that “the
process of decay,” though occurring “over the course of years,” “may cause sudden events,” such
as “a series of sudden events where the basement walls bulge and shift in some increment or pieces
of the concrete become dislodged and fall[] to the floor.” (ECF No. 20 ¶¶ 14-15.) Plaintiffs also
allege that the process “causes stress upon the concrete bonds culminating in a release point where
the concrete fractures in some increment,” and that “these release points can fairly be considered
discrete sudden events.” (Id. ¶ 16.)
I find that Plaintiffs fail to allege a collapse that is “sudden,” as required for coverage under
the Policy. As noted, the Policy language on “Collapse” under “Additional Coverages” specifies
that, “[f]or coverage to apply, the collapse of a building structure . . . must be a sudden and
accidental direct physical loss.” (ECF No. 22-2 at 38.) In the context of an insurance policy

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involving “sudden and accidental” pollution, the Connecticut Supreme Court held that “sudden”
“included 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
(2002). The Court, reviewing dictionary definitions, “acknowledge[d] that, the word sudden can
be used to describe the unexpected nature, as well as abrupt onset, of the event being described.”
Id. at 540 (emphasis added). But it concluded that in the context of the phrase “sudden and
accidental,” because “accidental” already included an element of unexpectedness, “sudden” had
to be accorded a temporal element to avoid rendering it mere surplussage. Id. at 540-41.
Following the logic of Buell, this Court and state trial courts have ruled in favor of
insurance companies in concrete decay cases where insurance policies require “sudden and
accidental” losses, or otherwise contain language requiring that the loss be temporally abrupt.2 See,
e.g., Rudeen v. Allstate Ins. Co., No. 16-cv-1827 (MPS), 2018 WL 1401978, at *5-7 (D. Conn.
Mar. 20, 2018) (granting Allstate’s motion to dismiss where policy required a “sudden and
accidental direct physical loss”); Lees v. Allstate Ins. Co., No. 15-cv-1050 (VAB), 2017 WL
5906613, at *6 (D. Conn. Nov. 30, 2017) (granting motion for summary judgment where policy
required “a sudden and accidental direct physical loss”); Manseau v. Allstate Ins. Co., No. 16-cv1231 (MPS), 2017 WL 3821791, at *3–*5 (D. Conn. Aug. 31, 2017) (granting motion to dismiss);
Adams v. Allstate Ins. Co., No. 16-CV-1360 (JBA), 2017 WL 3763837, at *4 (D. Conn. Aug. 29,

2

Pending before the Connecticut Supreme Court is the certified question of whether the
definition of “collapse” given in Beach v. Middlesex Mut. Ass. Co., 205 Conn. 246 (1987)
requires coverage under the “collapse” provisions of particular homeowners’ insurance policies
in the concrete decay cases. See Karas v. Liberty Ins. Co., No. 3:13-cv-01836 (SRU), 2018 WL
2002480 (D. Conn. Apr. 30, 2018); Vera v. Liberty Mut. Fire Ins. Co., No. 3:16-cv-72 (RNC),
2018 WL 3014112, at *5 (D. Conn. June 15, 2018). I note, however, that the policies in Karas
and Vera included no definition or qualification of “collapse,” other than its express exclusion of
“cracking,” which makes those cases distinguishable. Here, unlike in Beach, Karas, and Vera,
coverage is limited to collapses that are “sudden and accidental.”
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2017) (same); Clough v. Allstate Ins. Co., No. 17-CV-140 (JBA), 2017 WL 3763841, at *5 (D.
Conn. Aug. 29, 2017) (same); Miller v. Allstate Ins. Co., No. 16-CV-2059 (JBA), 2017 WL
3763425, at *4 (D. Conn. Aug. 29, 2017) (same); Metsack v. Liberty Mut. Fire Ins. Co., No. 14CV-1150 (VLB), 2017 WL 706599, at *7 (D. Conn. Feb. 21, 2017) (granting Allstate’s motion for
summary judgment); Alexander v. General Ins. Co. of America, No. 3:16-cv-59, transcript of oral
ruling, ECF No. 22 at 23 (D. Conn. July 7, 2016) (granting motion to dismiss where policy at issue
defined collapse as an “abrupt falling down or caving in”); Jemiola v. Hartford Cas. Ins. Co., No.
CV-15-6008837-S, 2017 WL 1258778, at *1 (Conn. Super. Ct. Mar. 2, 2017) (unpublished)
(granting summary judgment where policy defined collapse as “an abrupt falling down or caving
in”); Toomey v. Central Mut. Ins. Co., Docket No. CV-15-6009841-S (Conn. Super. Ct. Jud. Dist.
of Tolland Aug. 3, 2017) (unpublished) (granting summary judgment where policy defined
collapse as “an abrupt falling down or caving in”). I, again, reach the same conclusion here:
“sudden,” as used in the phrase “the collapse of a building structure . . . must be a sudden and
accidental direct physical loss,” unambiguously refers to a temporally abrupt event.
Plaintiffs’ argument that the term “sudden” is ambiguous because some of the covered
causes of collapse, such as “hidden decay” and “hidden insect infestation,” occur gradually rests
on a misreading of the plain language of the Policy. (ECF No. 23 at 8.) That language makes clear
that it is the “collapse” that must be “sudden,” not the cause of the collapse. (ECF No. 22-2 at 38
(“[T]he collapse . . . must be a sudden and accidental direct physical loss caused by . . . hidden
decay of the building structure.”).) As I have highlighted in other decisions involving similar facts,
the Court in Alexander explained it as follows during a colloquy with Plaintiffs’ counsel:
Mr. Lindequist: But the collapse has to be caused by one of the enumerated
perils, one of which is the cave[-in] that is hidden from view . . . .

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The Court: So here we go. Let’s use insect damage. There’s termites in the
house. No collapse. They’re eating away; every day they’re eating away.
No collapse. Finally, they eat enough that the beam fails. . . . Now there’s
coverage. Now you have a collapse or falling in. The fact that it was caused
by termites and it was a slow process doesn’t mean you didn’t have an
abrupt collapse . . . .”
Alexander, No. 3:16-cv-59, transcript of oral ruling, ECF No. 22 at 13–14 (D. Conn. July 7, 2016).3
The Allstate Policy unambiguously affords coverage once the specified hidden processes, such as
decay or insect infestation, result in a sudden and accidental collapse. See id.; see also Metsack,
2017 WL 706599, at *7.4
Because “sudden,” as used in the collapse provision of the Policy, unambiguously means
temporally abrupt, Plaintiffs must have plausibly alleged that any collapse occurred abruptly—not
merely unexpectedly—for coverage to have applied. Even when the allegations are construed in
the light most favorable to them, Plaintiffs have not alleged plausibly that the damage to their home
constituted or resulted from a temporally abrupt collapse. To the contrary, the loss described in the

3

I recognize that the policy language in Alexander was somewhat different than that at issue here,
but the point is that there is nothing necessarily ambiguous about a provision that affords coverage
for temporally abrupt events caused by gradual processes.
4
In support of their position, Plaintiffs urge the Court to adopt the reasoning of Kelly v. Balboa
Ins. Co., 897 F. Supp. 2d 1262, 1268 (M.D. Fla. 2012) (denying summary judgment, in part by
finding that the inclusion of “sudden” in the definition of “loss” in a policy that covered insect
damage rendered the provision ambiguous). Unlike the Connecticut Supreme Court’s decision in
Buell, the Kelly decision is not binding on this court. I therefore agree with other courts in this
District, holding that, in this context, “sudden” unambiguously means temporally abrupt. Plaintiffs
also rely on Dalton v. Harleysville Worcester Mut. Ins. Co., 557 F.3d 88 (2d Cir. 2009), where the
court concluded that a “collapse” provision did not require a sudden event to afford coverage. By
its own terms, however, Dalton is distinguishable because the collapse provision there made no
mention of a “sudden” event and did not otherwise qualify the term “collapse” except to exclude
bulging, shrinking, and cracking. 557 F.3d at 90. I note, however, that at least one court in this
district has found Kelly and Dalton persuasive in a concrete decay case against Allstate. See Maki
v. Allstate Ins. Co., -- F. Supp. 3d --, 2018 WL 3057729, at *1-2 (D. Conn. June 20, 2018) (denying
a motion to dismiss by Allstate in a concrete decay case involving identical policy language, citing
Kelly and Dalton).

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complaint has involved a “process of decay occur[ring] over the course of years.” (ECF No. 20 ¶
14.) While Plaintiffs allege that “[a]s the chemical reaction progresses and the strength of the
basement walls weaken, external forces may cause a series of sudden events where the basement
walls bulge and shift in some increment or pieces of concrete become dislodged and fall[] to the
floor” (Id. ¶ 15 (emphasis added)), at most that statement alleges that the gradual process of decay
Plaintiffs describe could possibly cause visible effects that happen temporally abruptly; they do
not allege that any such temporally abrupt events have actually occurred in their house. Further,
their allegation 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” only underscores that the loss
here involves a gradual process rather than a sudden event. (Id. ¶ 13.) These allegations do not set
forth a plausible claim that Plaintiffs have suffered “a sudden and accidental direct physical loss.”
(ECF No. 22-2 at 38.)
Plaintiffs further allege that their “sudden and accidental loss” was evidenced by “release
point[s] where the concrete fractures in some increment,” culminating in a “cracking condition.”
(ECF No. 20 ¶ 16.) Plaintiffs allege that “these release points can fairly be considered discrete
sudden events.” (Id.) But simply calling the moment before a crack appears a “release point” does
not allege either that there was a “collapse” or that any collapse was “sudden,” as required by the
Policy. The coverage applies to “collapses,” not to “cracking” or to the “release points” that
allegedly produce it. Indeed, “collapse” is defined expressly to exclude mere “cracking.” (ECF No.
22-2 at 39); see Hurlburt v. Mass. Homeland Ins. Co., --- F. Supp. 3d ---, 2018 WL 1035810, at
*8 (D. Conn. Feb. 23, 2018) (finding that, “[a]bsent a collapse,” the cracking that the plaintiffs
alleged was “precisely the type of loss the [p]olicy specifically excludes”); Manseau, 2017 WL
3821791, at *4 (finding that the plaintiffs’ allegations of cracking failed to allege a coverable

12

collapse under identical policy language). It is thus the collapse, and not the cracking or “release
point,” that must be sudden for coverage to apply. And nowhere does the complaint suggest that
the alleged “substantial impairment to [the] structural integrity” of the basement walls in the
Andrews’s house (ECF No. 20 ¶ 12), which invokes the definition of “collapse” articulated in
Beach, was “sudden.” To the contrary, the complaint pleads that the “substantial impairment”
occurred “[a]t some point between the date on which the basement walls were poured and late
December of 2016” (id. ¶ 12), in what was obviously a gradual process given that “[t]he house
was built in 1985.” (Id. ¶ 4.) That the gradual process leading to the “substantial impairment” was
punctuated by allegedly sudden “release points” does not make the “substantial impairment,” i.e.,
the alleged collapse, a sudden event.
Moreover, the Policy requires an “entire collapse” for Plaintiffs to be entitled to coverage
under the “collapse” provision. (ECF No. 22-2 at 38.) Even reading the amended complaint in the
light most favorable to Plaintiffs, I find that Plaintiffs fail to allege that an “entire collapse” has
occurred. As discussed, the only observable loss that the Plaintiffs allege to have occurred is
cracking. (See ECF No. 20 ¶¶ 7-9, 16 (alleging that their basement walls exhibited “a series of
horizontal and vertical cracks throughout,” “pattern cracking,” and a “cracking condition”).) The
allegations that “[i]t is only a question of time until the basement walls . . . fall in,” and that
“external forces may cause a series of sudden events where the basement walls bulge and shift in
some increment pieces of the concrete become dislodged and fall[] to the floor” underscore that
an “entire collapse” has yet to occur. (Id. ¶¶ 13, 15 (emphasis added).) See Agosti v. Merrimack
Mut. Fire Ins. Co., 279 F. Supp. 3d 370, 379-80 (D. Conn. 2017) (granting Allstate’s motion to
dismiss a claim based on language requiring an “entire collapse,” and finding that “the term ‘entire
collapse’ is susceptible of only one reasonable interpretation,’ namely, an ‘actual collapse’”);

13

Carlson v. Allstate Ins. Co., No. 15-CV-1045 (MPS), 2017 WL 4285687, at *9 (D. Conn. Sept.
27, 2017) (“[n]o reasonable juror could find that ‘pieces of the concrete within the wall falling to
the floor’ from gaps left by cracks or a ‘wall going from straight and plumb to shifting inward
some increment’ means that an ‘entire collapse’ has occurred”); Valls v. Allstate Ins. Co., No. 16CV-1310 (VAB), 2017 WL 4286301, at *5 (D. Conn. Sept. 27, 2017) (finding that plaintiffs failed
to allege a “complete collapse” under similar policy language). As a result, Plaintiffs’ claim that
the loss alleged is covered as a “collapse” is implausible.5 Plaintiffs’ breach of contract claim
therefore fails.
B. CUIPA/CUTPA
Allstate also moves to dismiss Count Two, which alleges a violation of CUIPA and
CUTPA. “A plaintiff may assert a private cause of action based on a substantive violation of
CUIPA through CUTPA’s enforcement provision.” Karas v. Liberty Ins. Corp., 33 F. Supp. 3d
110, 117 (D. Conn. 2014). To state a CUIPA/CUTPA claim, Plaintiffs must plausibly allege that
Allstate “engaged in an act prohibited by CUIPA’s substantive provisions, and that the act
proximately caused the harm alleged.” Belz v. Peerless Ins. Co., 46 F. Supp. 3d 157, 165 (D. Conn.
2014). The CUIPA provision relevant to this case is the prohibition of “[u]nfair claim settlement
practices” under Conn. Gen. Stat. § 38a-816(6). Where an insurer’s interpretation of an insurance
policy is correct, however, there can be no violation of CUIPA/CUTPA. Zulick v. Patrons Mut.
Ins. Co., 287 Conn. 367, 378 (2008) (affirming dismissal of CUIPA/CUTPA claim after
determining that defendant insurer’s interpretation of an insurance policy was correct).

Allstate also argues that Plaintiffs’ alleged loss is excluded under other provisions of the Policy,
including exclusions of coverage for “rust or other corrosion” or for “faulty, inadequate or
defective . . . materials used in repair, construction, renovation or remodeling.” (ECF No. 22-2 at
30-31.) Because I find that Plaintiffs’ alleged loss does not fall under the definition of “collapse”
or under any other coverage claimed by Plaintiffs, I need not and do not address these arguments.
5

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Because I find that Allstate’s interpretation of the Policy was correct, Plaintiffs’
CUIPA/CUTPA claim necessarily fails.
IV.

Conclusion
For the reasons stated above, Allstate’s Motion to Dismiss is GRANTED.

IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
July 24, 2018

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