Hurlburt v. Mass. Homeland Ins. Co.

310 F. Supp. 3d 333
CourtDistrict Court, D. Connecticut
DecidedFebruary 23, 2018
DocketNo. 3:17–cv–503 (VAB)
StatusPublished
Cited by5 cases

This text of 310 F. Supp. 3d 333 (Hurlburt v. Mass. Homeland Ins. Co.) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hurlburt v. Mass. Homeland Ins. Co., 310 F. Supp. 3d 333 (D. Conn. 2018).

Opinion

VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

Mark Hurlburt and Melanie Hurlburt (the "Hurlburts") sued Massachusetts Homeland Insurance Company ("Mass. Ins." or "Defendant") after Mass. Ins. denied coverage for visible cracking in concrete in their basement allegedly caused by a chemical reaction. Specifically, they allege breach of contract and the covenant of good faith and fair dealing and violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen. Stat. § 42-100a et seq. ; and the Connecticut Unfair Insurance Practices Act ("CUIPA"), Conn. Gen. Stat. § 38a-815 et. seq.

Defendant now moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). ECF No. 11.

For the following reasons, the motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Allegations

1. Terms of the Insurance Policy

The Hurlburts live at 119 Pinney Street, Ellington, Connecticut. Compl. ¶ 1, ECF No. 1-1. The Hurlburts allege that they maintain a homeowner's insurance policy with Defendant.1 Compl. ¶ 3. The Hurlburt's Insurance Policy ("Policy") provides:

E. Additional Coverages
* * *
8. Collapse
a. With respect to this Additional Coverage:
(1) Collapse means an abrupt falling down or caving in of a building or any part of a building with the result that the building or any part of the building cannot be occupied for its current purpose.
(2) A building or any part of a building that is in danger of falling down or caving in is not considered to be in a state of collapse.
(3) A part of a building that is standing is not considered to be in a state of collapse even if it has separated from another part of the building.
(4) 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.
b. We insure for sudden and accidental direct physical loss to covered property involving collapse of a building or any part of a building if the collapse was caused by one or more of the following:
(1) The Perils Insured Against named under Coverage C;
(2) Decay that is hidden from view, unless the presence of such decay *337is known to an "insured" prior to collapse;

Policy at 40, ECF No. 12-7.

SECTION I: PERILS INSURED AGAINST
A. COVERAGE A-DWELLING AND COVERAGE B-OTHER STRUCTURES
1. We insure against risk of direct physical loss to property described in Coverages A and B.
2. We do not insure, however, for loss:
a. Excluded under Section 1-Exclusions;
* * *
c. Caused by:
* * *
(6)Any of the following:
(a) Wear and tear, marring, deterioration;
(b) Mechanical breakdown, latent defect, inherent vice, or any quality in property that causes to damage or destroy itself;
* * *
(f) Settling, shrinking, bulging or expansion, including resultant cracking, of ... foundations, [and] walls....

Id. at 42.

E. Additional Coverages
* * *
2. Reasonable Repairs
a. We will pay the reasonable cost incurred by you for the necessary measures taken solely to protect covered property that is damaged by a Peril Insured Against from further damage.

Id. at 39.

B. We do not insure for loss to property described in Coverages A and B caused by any of the following. However, any ensuing loss to property described in Coverages A and B not precluded by any other provision in this policy is covered.
* * *
3. Faulty, inadequate, or defective:
c. Materials used in repair, construction....

Id. at 1.

2. The Hurlburts' Claim

On August 7, 2015, after the Hurlburts allegedly noticed visible cracking patterns in the concrete foundation of their home, Compl. ¶ 5, contacted William F. Neal, PE ("Mr. Neal"), "for the specific purpose of conducting a visual examination of the concrete foundation [at Plaintiffs' home]." Opp. Mot. to Dismiss at Exhibit A, at 2, ECF No. 17-1. After Mr. Neal inspected the unfinished basement, he wrote the Hurlburts a letter dated the same day as inspection. Id. In relevant part, the letter stated:

Most of the visible concrete foundation, both exterior and interior, and the garage floor have numerous spider-web cracks. Some of these cracks are as much as ¾" wide and the foundation walls in several locations are bowing inward by as much as 1. "Heavy efflorescence (a white powdery from the concrete) is present in many areas of the basement, especially in more heavily cracked areas.... There is no way to arrest the process and there is no way to repair the existing damage. The basement walls at this time are structurally unsound and corrective action is necessary.... It is my recommendation that the basement walls be replaced. It is not possible to predict how quickly the foundation will deteriorate to the point it is structurally dangerous. I therefore urge you to develop a corrective plan with a licensed contractor as soon as possible.

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Bluebook (online)
310 F. Supp. 3d 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurlburt-v-mass-homeland-ins-co-ctd-2018.