Cockill et al v. Nationwide Property & Casualty Insurance Company

Filing 22

ORDER: For the reasons set forth in the attached, the 14 motion to dismiss is hereby GRANTED. Therefore, this case is DISMISSED. The Clerk is instructed to close this case. Signed by Judge Michael P. Shea on 11/27/2018. (Ram, Megha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LAWRENCE COCKILL, ET AL
No. 3:18cv254 (MPS)
Plaintiffs,
v.
NATIONWIDE PROPERTY & CASUALTY
INSURANCE COMPANY
Defendant.

RULING ON DEFENDANT’S MOTION TO DISMISS
Plaintiffs Lawrence and Karen Cockill (collectively, “the Cockills”) filed this action in
state court against their homeowner’s insurance provider, Nationwide Property & Casualty
Insurance Company (“Nationwide”), seeking damages for its failure to provide coverage for
damage to the basement walls of a residence they own. ECF No. 1-1. Nationwide removed the
case to this court on February 9, 2018. ECF No. 1. On April 2, 2018, Nationwide moved to
dismiss the case, arguing that the alleged loss was not covered by the insurance policy. ECF No.
14. For the reasons set forth below, the motion is GRANTED.
I.

Factual Allegations
According to the allegations in the complaint, the Cockills own a property located at 68

Webster Road, Union, Connecticut (“the property”). ECF No. 1-1 ¶ 1. Nationwide has insured
the property at all relevant times. Id. ¶ 3. The Cockills made all required insurance payments. Id.
¶ 4.

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On an unspecified date, the Cockills “observed visible cracking in the concrete of their
home.” Id. ¶ 5. On January 20, 2016, a structural engineer inspected the basement of the
property. Id. ¶ 6. The results of this inspection “indicated that there was a chemical reaction in
the concrete and that the concrete would have to be replaced.” Id. ¶ 7. The Cockills made a
timely claim for coverage under their homeowner’s insurance policy. Id. ¶ 9. On November 2,
2016, Nationwide denied coverage. Id. ¶ 14.
The Cockills allege that the chemical reaction “substantially impairs the structural
integrity of the dwelling,” Id. ¶ 8, and “losses due to chemical reaction are not excluded from
policy coverage,” Id. ¶10. They further allege that they are “covered for ‘Collapse’ of the
basement walls,” Id. ¶ 11, “for any ensuing loss as caused by the condition of the premises,” Id. ¶
12, and “for reasonable repairs as caused by the condition of the premises,” Id. ¶ 13. Finally, the
Cockills allege that the “Defendant has breached its agreement with the Plaintiffs” by failing to
provide coverage under the policy. Id. ¶ 15.
II.

Legal Standards
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) (internal 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.

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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 quotation marks omitted).
Here, I consider the insurance policy, which is attached to Nationwide’s motion to dismiss. ECF
No. 15-2.
III.

Discussion
A. Collapse Coverage
The Cockills claim they are entitled to coverage under the collapse provision of their

insurance policy. ECF No. 1-1 ¶ 11. The policy defines collapse as the “abrupt falling down or
caving in” of any structure “with the result that it cannot be occupied for its intended purpose.”
ECF No. 15-2 at 18. It further states that a structure is not in a state of collapse if it is still
standing, even if it is “in danger of falling down or caving in,” or “shows signs of . . . cracking.”
Ibid. And finally, the policy requires the collapse to be “sudden and accidental.” Ibid.
The Cockills rely on the Second Circuit’s decision in Dalton v. Harleysville Worcester
Mutual, 557 F. 3d. 88 (2nd Cir. 2009), to argue that the “term collapse is ambiguous in light of
the qualifiers made by the provisions in the policy.” ECF No. 20 at 3. However, their reliance on
Dalton is misplaced. As this Court has noted, the policy at issue in Dalton “did not define
‘collapse’ to have any temporally abrupt quality, and the Court had to look to unsettled New
York law to determine the meaning of ‘collapse.’” England v. Amica Mut. Ins. Co., 2017 WL
3996394, at *5 (D. Conn. Sept. 11, 2017). In this case, by contrast, the insurance policy
expressly defines collapse as the “abrupt falling down or caving in” of a structure, and later

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reiterates that the collapse must be “sudden and accidental.” ECF No. 15-2 at 18. Indeed, the
Dalton court itself noted that a policy with such “express definitional terms” would present a
different issue altogether. Dalton, 557 F.3d 88, 92 n.1 (explaining that a policy defining collapse
as “an abrupt falling down or caving in” and excluding coverage for standing structures that
show “evidence of cracking” provides “a definition of collapse agreed to by the parties, which
addresses the ambiguity”). Because the language in the Cockills’ policy is unambiguous, unlike
the language in Dalton, it “must be accorded its natural and ordinary meaning.” Connecticut
Med. Ins. Co. v. Kulikowski, 942 A.2d 334, 338 (Conn. 2008).
“The ordinary meaning of the word ‘abrupt’ is ‘characterized by or involving action or
change without preparation or warning.’” England, 2017 WL 3996394, at *5 (quoting Merriam
Webster’s Collegiate Dictionary (10th ed. 1994)). And the term ‘sudden’ has “a temporal
quality,” which requires the event in question to occur “quickly” or “abruptly.” Adams v. Allstate
Ins. Co., 276 F. Supp. 3d 1, 4 (D. Conn. 2017) (quoting Buell Indus., Inc. v. Greater New York
Mut. Ins. Co., 791 A.2d 489 (Conn. 2002)). I construe the allegations in the complaint in the light
most favorable to the Cockills—as I must at the motion to dismiss stage—and find that they do
not allege an “abrupt” or “sudden” collapse. Rather, the Cockills point to a “chemical reaction in
the concrete” that “substantially impairs the structural integrity of the building.” ECF No. 1-1 ¶¶
7-8. In their opposition to Nationwide’s motion to dismiss, the Cockills further allege that “one
of the after effects of the ongoing chemical reaction to the home is that it is collapsing” and that
the walls “have given way and [are] essentially caving in.” ECF No. 20 at 3. All of these
allegations suggest only a gradual deterioration rather than a “sudden” or “abrupt” collapse as
required by the policy.

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Moreover, the policy specifies that collapse coverage does not apply to a standing
structure at all, even if it is “in danger of falling down or caving in” or “shows signs of . . .
cracking.” ECF No. 15-2 at 18. Although the Cockills suggest that “the structure will eventually
collapse” due to the chemical reaction, ECF No. 20 at 4, they do not allege that the structure is
no longer standing or that it cannot be occupied for its intended purpose at present. Indeed, the
first paragraph of the complaint alleges that the Cockills continue to reside at the property. ECF
No. 1-1 ¶ 1. And finally, the suggestion that the cracks in the walls constitute current evidence of
“caving in” and “collapse,” Id. at 3, is unavailing as Nationwide expressly excludes standing
structures with mere signs of cracking from collapse coverage, ECF No. 15-2 at 18.
In sum, the Cockills have not alleged an abrupt or sudden collapse, nor have they alleged
that the structure is no longer standing or habitable for its intended purpose. As such, they have
not alleged that they are entitled to coverage under the collapse provisions of their insurance
policy.
B. Coverage for Losses Due to Chemical Reaction
The Cockills also allege that “losses due to chemical reaction are not excluded from
policy coverage,” ECF No. 1-1 ¶ 10, and therefore replacing the concrete to prevent the chemical
reaction from further damaging the structure is covered, ECF No. 20 at 4. It appears that the
Cockills are referring to Section I of the insurance policy that lists a series of “[p]roperty
exclusions.” The relevant policy language reads as follows:
3. We do not cover loss to property described in Coverages A and B resulting directly
from any of the following:
...
(f) (1) wear and tear, marring, deterioration;
(2) inherent vice, latent defect, mechanical breakdown;
(3) smog, rust;
...
(5) release, discharge, or dispersal of contaminants or pollutants;
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(6) settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations,
walls, floors, roofs or ceilings.
ECF No. 15-2 at 23-24. Although loss from “chemical reaction” is not specifically listed among
the exclusions, this theory of coverage is foreclosed.
First, many of the exclusions listed in this section are broad enough to include chemical
reactions. For example, “wear and tear,” “deterioration,” “inherent vice,” “latent defect,” “rust,”
and “cracking” are all terms that may encompass the “chemical reaction” described in the
complaint. See id. at 24. Second, the only observed manifestation of the chemical reaction that is
identified in the complaint is the “cracking in the basement walls.” ECF No. 1-1 ¶ 6; see
England, 2017 WL 3996394, at *8 (finding in similar case that “the chemical reaction itself,
absent any physical manifestation in the property marking a change to an unsatisfactory state, is
not” a “loss” under the policy). However, loss from cracking is excluded under the collapse
provisions, ECF No. 15-2 at 18 (providing coverage for collapse and noting that a structure is not
in a state of collapse if it is standing “even if it shows signs of . . . cracking”), as well as the
“[p]roperty exclusions,” id. at 23-24 (excluding loss from “cracking” of “foundations [and]
walls”). As I concluded in the England case, “[i]t does not matter whether the originating event
behind the cracking and deterioration was a chemical reaction; the exclusions in the Policies
make no exception for losses for which the cause is itself a product of a chemical reaction.
Indeed, many of the loss-producing causes listed in the exclusions either are the product of
chemical reactions or are broad enough to include chemical reactions.” 2017 WL 3996394, at *8.
As noted above, the same is true of the loss-producing causes listed in the exclusions in the
Nationwide policy.
C. Coverage for Reasonable Repairs

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Alternatively, the Cockills allege that they “are covered for reasonable repairs as caused
by the condition of the premises.” ECF No. 1-1 ¶ 13. They point to the “Additional Coverages”
portion of the policy stating that Nationwide “will pay reasonable cost you incur for necessary
repairs made solely to protect covered property from further damage if the peril causing the loss
is covered.” ECF No. 20 at 4; ECF No. 15-2 at 16. They further argue that because “the structure
will eventually collapse,” and the chemical reaction “is not excluded under the policy,” any steps
taken to prevent the chemical reaction and collapse are covered.
This argument is unsuccessful. The policy states that repairs to prevent further damage
are covered “if the peril causing the loss is covered.” ECF No. 15-2 at 16. In this case, because
the “peril[s] causing the loss”—the alleged chemical reaction and cracking—are not covered,
there is no additional coverage for replacing the concrete. See Liston-Smith v. CSAA Fire & Cas.
Ins. Co., 287 F. Supp. 3d 153, 162 (D. Conn. 2017) (finding no coverage for reasonable repairs
when the policy provided for repairs “to protect covered property that is damaged by Perils
Insured Against” and the plaintiffs did not identify a covered claim); Zamichiei v. CSAA Fire &
Cas. Ins. Co., 2018 WL 950116, at *9 (D. Conn. 2018) (“The Property has not been ‘damaged by
a Peril Insured Against,’ and thus the Additional Coverage cannot be reasonably read to include
the loss at issue here.”); Sanzo v. Metro. Grp. Prop. & Cas. Ins. Co., 2018 WL 1749967, at *6
(Conn. Super. Ct., 2018) (explaining that when a policy covers “repairs to protect covered
property from further loss following a loss we cover,” and “the essential prerequisite for a ‘loss
we cover’ is not satisfied,” then “the reasonable repairs coverage does not apply”).1

The Cockills allege, in their complaint, that they “are covered for any ensuing loss as caused by
the condition of the premises.” ECF No. 1-1 ¶ 12. However, they do not point to specific policy
language regarding ensuing loss in their complaint, and they do not address this claim in their
opposition brief. I thus treat the claim as having been abandoned. See Lovitch v. County of
Orange, 2013 WL 3805142, at *5 (S.D.N.Y., July 19, 2013).
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IV.

Conclusion
Because I find that the insurance policy does not cover the losses alleged in the

complaint, the Cockills have failed to allege a claim for breach of contract, and Nationwide’s
Motion to Dismiss is GRANTED.
IT IS SO ORDERED.

Dated at Hartford, Connecticut this 27th day of November, 2018.

/s/ MICHAEL P. SHEA_____
Michael P. Shea
United States District Judge

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