Opinion
CV166010488S
03-09-2018
Louis SANZO v. METROPOLITAN GROUP PROPERTY AND CASUALTY INSURANCE COMPANY
UNPUBLISHED OPINION
OPINION
Farley, J.
In this insurance dispute involving crumbling concrete basement walls at the home of the plaintiff, Louis Sanzo, the defendant, Metropolitan Group Property and Casualty Insurance Company (" Metropolitan" ), has moved for summary judgment on all three counts of the plaintiff’s complaint. The first count alleges breach of contract based on Metropolitan’s denial of coverage for the damage to the plaintiff’s basement. The second count alleges Metropolitan breached the duty of good faith and fair dealing implicit in the insurance contract by misinterpreting and misapplying the terms of the policy in order to justify its denial of coverage. The third count alleges a claim under the Connecticut Unfair Trade Practices Act (" CUTPA" ) based on an alleged general business practice of unreasonably denying coverage for this and similar claims in violation of the Connecticut Unfair Insurance Practices Act (" CUIPA" ). Metropolitan, which has provided homeowners insurance coverage to the plaintiff from September 26, 2013 to the present, maintains that its policy does not provide coverage for the claimed loss. Based on that, Metropolitan asserts further that the plaintiff has no viable claims for bad faith and for violation of CUTPA/CUIPA. For the reasons set forth below, Metropolitan’s motion is granted and judgment shall enter in its favor on all three counts.
FACTS
The material facts are undisputed. The plaintiff’s home in South Windsor, Connecticut was built in 1985. He purchased the home in 2009. The plaintiff alleges that " over the course of his ownership of the property, he observed visible cracking patterns in the basement walls." At the outset he considered them to be " stress shrinking cracks that were typical to any foundation." He became " extremely concerned" about them, however, in the summer of 2015 due to " noticeable deterioration and media coverage of concrete failures in the area." On September 24, 2015, Hugh Mullen, a professional engineer, inspected the home for the plaintiff. Mr. Mullen observed " spider-like crack patterns" and " excessive efflorescence" on the interior side of the basement walls. Mr. Mullen attributed the problem to " a poor concrete mix in which the concrete expands internally" and causes the cracking. " Concrete with this condition deteriorates over time in the presence of moisture and is a progressive problem ... [that will continue] until the wall loses much of its strength. At advanced stages, the foundation walls needs [sic] to be replaced." Mr. Mullen could not determine " [t]he rate at which this deterioration progresses." At the time of his inspection, however, the cracks were " not excessive" and there was " no evidence of any foundation related movement in the interior of the house." He recommended waterproofing the exterior side of the walls and some other remedial measures. The plaintiff still resides in the home.
After receiving Mr. Mullen’s September 25, 2015 report, on October 16, 2015 the plaintiff made a claim for coverage under his policy with Metropolitan. The Metropolitan policy provides, in pertinent part, pursuant to " SECTION I- LOSSES WE COVER ," that Metropolitan " will pay for sudden and accidental direct physical loss or damage to the property ... except as excluded in SECTION I- LOSSES WE DO NOT COVER ." Among the " excluded events" is " Collapse, except as granted under SECTION I- ADDITIONAL COVERAGES for Collapse ." The Additional Coverage for Collapse provides, in pertinent part, that Metropolitan " will pay for sudden and accidental direct physical loss to covered property involving the entire collapse of a building or any part of a building caused only by ... B. hidden decay of the structure ... or F. use of defective material or methods in construction ..." It provides further that " [c]ollapse does not include settling, cracking, shrinking, bulging or expansion." On October 20, 2015, Metropolitan issued a written denial of coverage to the plaintiff maintaining that no coverage was afforded for his loss pursuant to these policy terms. Metropolitan explained that in its view the claimed loss was not " sudden and accidental," a prerequisite for both the broad grant of coverage and the Additional Coverage for Collapse. Metropolitan also referenced several policy exclusions that it deemed applicable.
Because the court agrees with Metropolitan’s position that the policy does not extend coverage in the first instance, there is no need to and the court does not consider the applicability of the cited policy exclusions.
On March 15, 2016 the plaintiff commenced this action, claiming that his loss is covered under Metropolitan’s policy. The complaint alleges that the plaintiff’s loss is " the chemical reaction that occurred in the concrete causing it to deteriorate," that the chemical reaction is covered under " Section I- Losses we Cover" and, alternatively, that the plaintiff is covered for " ‘Collapse’ of the basement walls consistent with the progressive deterioration of the concrete caused by the chemical reaction." In addition to alleging breach of contract in count one, in count two the plaintiff alleges Metropolitan breached the implicit duty of good faith and fair dealing in the insurance contract, depriving him of the benefits of his insurance, claiming that Metropolitan " unreasonably and in bad faith, sought out other policy provisions [other than those the plaintiffs argue afford coverage] and interpreted these and other policy provisions in a manner for the purpose of denying benefits despite the aforementioned provisions of the policy conferring benefits." In count three, the plaintiffs assert a CUTPA/CUIPA claim reiterating the same misinterpretation and misapplication of relevant policy provisions by Metropolitan in providing a " false and misleading denial of coverage" and alleging that Metropolitan " has regularly denied claims in similar manners or on similar grounds or other grounds." This count also appears to allege that Metropolitan is engaged in a scheme, plan, or conspiracy, carried out through the Insurance Services Organization (" ISO" ), to indiscriminately deny all collapse claims associated with the crumbling basement walls phenomenon in eastern Connecticut.
There appears to be no dispute between the parties that Metropolitan’s policy in effect from September 26, 2015 to September 26, 2016 is the applicable policy.
On summary judgment the plaintiff also claims coverage under the policy’s " ensuing loss" provisions and the Additional Coverage for " Reasonable Repairs." The reasonable repairs coverage is discussed below. The ensuing loss provisions, however, only operate as exceptions to certain exclusions in the policy. Because the court does not reach the applicability of the exclusions, the court also does not address the ensuing loss provision.
THE PARTIES’ CLAIMS ON SUMMARY JUDGMENT
Metropolitan has moved for summary judgment on several grounds. First, Metropolitan maintains there is no coverage under " Section I- Losses We Cover" because the plaintiff’s loss was not " sudden and accidental." Metropolitan argues further that the plaintiff’s loss is excluded under " Section I- Losses We Do Not Cover" based on the policy’s exclusions for loss " consisting of ... defective, inadequate, faulty or unsound ... materials used in ... construction ..." and loss or damage " which results directly or indirectly from ... deterioration ... [or] cracking ..." Metropolitan also argues that the Additional Coverage for Collapse is inapplicable for two reasons. First, Metropolitan argues that the undisputed facts establish that " [e]ven under the broadest interpretation of collapse as a ‘substantial impairment of the structural integrity of a building,’ Beach v. Middlesex Mutual Assurance Company, 205 Conn. 246, 253, 532 A.2d 1297 (1987), there is no collapse at the subject property." Second, Metropolitan argues that the undisputed facts establish beyond dispute that the plaintiff’s loss, even if it does involve collapse, was not " sudden and accidental." Metropolitan goes on to argue that the common-law bad faith count and the CUTPA/CUIPA counts must fail because there is no coverage under the policy and, even if coverage were found, because its coverage position is at least " fairly debatable." As to the CUTPA/CUIPA count, Metropolitan also argues there is insufficient evidence of a general business practice, as CUIPA requires in order to establish an unfair settlement practice. General Statutes § 38a-816(6)(F).
In response to Metropolitan’s motion, the plaintiff maintains that the " chemical reaction" in the concrete is a " sudden and accidental direct physical loss" that is not excluded under the policy. He argues, " [t]he moment the reaction occurs, the only solution is replacement of the concrete." He also argues that he has a viable claim for coverage under the Additional Coverage for Collapse and the Additional Coverage for Reasonable Repairs. As to the bad faith count, the plaintiff argues the claims must stand because Metropolitan " purposely ignored applicable provisions for coverage (or, as in the case of the chemical reaction, something NOT specifically excluded) while it delved into a lengthy, confusing and cumbersome policy to search out any excuse NOT to cover [the] [p]laintiff." Regarding the CUTPA/CUIPA count, the plaintiff references three other pending lawsuits against Metropolitan arising out of the denial of crumbling concrete claims and his own allegations in this case regarding Metropolitan’s coordination of its coverage position on such claims through ISO. No evidence of any ISO related activity has been submitted.
SUMMARY JUDGMENT STANDARDS
" [S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821.
" To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
INSURANCE POLICY INTERPRETATION
An insurance contract is interpreted by the court according to " the same general rules that govern the construction of any written contract." (Internal quotation marks omitted.) Johnson v. Connecticut Ins. Guaranty Ass’n, 302 Conn. 639, 643, 31 A.3d 1004 (2011). Thus, " [t]he determinative question is the intent of the parties, that is, what coverage the ... insured expected to receive and what the insurer was to provide, as disclosed by the provisions of the policy." (Internal quotation marks omitted.) Id. If the policy’s terms are " clear and unambiguous," then that language " must be accorded its natural and ordinary meaning." (Internal quotation marks omitted.) Id. If the terms of the insurance policy are " ambiguous," however, meaning " reasonably susceptible to more than one reading," then ambiguity " must be construed in favor of the insured because the insurance company drafted the policy." (Internal quotation marks omitted.) Id. " The court must conclude that the language should be construed in favor of the insured unless it has ‘a high degree of certainty’ that the policy language clearly and unambiguously excludes the claim." Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 796, 967 A.2d 1 (2009), citing Kelly v. Figueiredo, 223 Conn. 31, 37, 610 A.2d 1296 (1992).
" In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity ... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms ... As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading." (Internal quotation marks omitted.) Lexington Ins. Co. v. Lexington Healthcare Group, 311 Conn. 29, 37-38, 84 A.3d 1167 (2014), quoting Johnson v. Connecticut Ins. Guaranty Ass’n, supra, 302 Conn. 643. " [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous." (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., supra, 290 Conn. 796. Nevertheless, " [c]ontext is often central to the way in which policy language is applied; the same language may be found both ambiguous and unambiguous as applied to different facts ... Language in an insurance contract, therefore, must be construed in the circumstances of a particular case, and cannot be found to be ambiguous or unambiguous in the abstract ... In sum, the same policy provision may shift between clarity and ambiguity with changes in the event at hand ... and one court’s determination that a term ... was unambiguous, in the specific context of the case that was before it, is not dispositive of whether the term is clear in the context of a wholly different matter." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Lexington Ins. Co. v. Lexington Healthcare Group, Inc., supra, 41-42.
BREACH OF CONTRACT
Metropolitan argues there is no genuine issue of material fact that the plaintiff’s home has not experienced a " sudden and accidental direct physical loss" and, thus, there is no coverage under Section I- Losses We Cover." Metropolitan also argues the Additional Coverage for Collapse is inapplicable, again because the policy covers a loss involving collapse only if it is " sudden and accidental." The court agrees with Metropolitan as to both of these coverages.
The plaintiff, in addressing Metropolitan’s argument under " Section I- Losses We Cover," attempts to shift the focus away from the cracks and deterioration in the concrete, as noted by his engineer, to the " chemical reaction" allegedly causing that damage. This effort, however, does not enable the plaintiff to avoid the " sudden and accidental" language in the grant of coverage. Even if the asserted chemical reaction were properly viewed as the " loss" (see below) there is no evidence to support the plaintiff’s characterization of that reaction as " sudden." On the contrary, Mr. Mullen states that " [c]oncrete with this condition deteriorates over time in the presence of moisture and is a progressive problem." He also states " [t]he rate at which this deterioration progresses cannot be determined." The plaintiff phrases his argument in terms of a chemical reaction that " occurred" at his home, suggesting the chemical reaction occurred suddenly and is over. He has submitted no evidence to support this characterization of the chemical reaction he references, which is inconsistent with his own expert’s characterization of the " problem" as a " progressive" one. Addressing the Additional Coverage for Collapse, the plaintiff again references the alleged chemical reaction. He states " [t]he ‘collapse’ aspect of the [p]laintiff’s [c]omplaint is an ostentatious manifestation of this chemical reaction." The argument appears to be that a substantial impairment of structural integrity resulting from a " sudden" chemical reaction is covered under the collapse provision.
In this case, in contrast to most other crumbling concrete cases pending in this district, there is no evidence that there is a chemical reaction taking place at all, though arguably one might infer such a reaction is occurring from Mr. Mullen’s statement that the conditions observed in the basement walls " are indicative of a poor concrete mix ... [that] used an aggregate which reacted strongly with the cement paste."
In this context the plaintiff refers to the chemical reaction as something that is " occurring."
In his argument regarding collapse, the plaintiff goes on to discuss the definition of " collapse" set forth in the base policy form restricting collapse coverage to " an abrupt falling down or caving in of a building or any part of a building." This definition of collapse, however, is deleted and superseded by other language not at issue here in the Connecticut Amendatory Endorsement to the policy.
A. Whether the Alleged Chemical Reaction is the " Loss"
The plaintiff argues that the " loss" at issue under both coverages is the chemical reaction taking place within the concrete walls, not the cracking and deterioration of the concrete. The proposition that the chemical reaction itself constitutes the " direct physical loss" to property covered by the policy is one several Connecticut federal district courts have rejected in crumbling concrete cases. See England v. Amica Mutual Ins. Co., Docket No. 3:16CV1951 (MPS), 2017 WL 3996394 (D.Conn. September 11, 2017).
See also Hurlburt v. Massachusetts Homeland Ins. Co., Docket No. 3:17cv503 (VAB), 2018 WL 1035810 (D.Conn. February 23, 2018); Zamichiei v. CSAA Fire & Casualty Ins. Co., Docket No. 3:16cv739 (VAB), 2018 WL 950116 (D.Conn. February 20, 2018); Mazzarella v. Amica Mutual Ins. Co., Docket No. 3:17cv598 (SRU), 2018 WL 780217 (D.Conn. February 8, 2018); Chernosky v. Amica Mutual Ins. Co., Docket No. 3:17cv01047 (VLB), 2018 WL 529956 (D.Conn. January 24, 2018); Makufka v. CSAA Fire & Casualty Ins. Co., Docket No. 3:16cv00567 (VLB), 2018 WL 465775 (D.Conn. January 18, 2018); Liston-Smith v. CSAA Fire & Casualty Ins. Co., Docket No. 3:16CV510 (JCH), 2017 WL 6459552 (D.Conn. December 15, 2017); Agosti v. Merrimack Mutual Fire Ins. Co., Docket No. 3:16CV01686 (SRU), 2017 WL 3710786 (D.Conn. August 28, 2017).
The claim that the chemical reaction itself constitutes the " loss" covered by the policy is an implausible interpretation of the policy, which covers " direct physical loss" to property. The chemical reaction, assuming there is one, is the cause of the loss, not the loss itself. The chemical reaction, if it were benign, would not constitute loss or damage. There are multiple chemical reactions taking place inside every home and even within concrete walls. It is only because this particular chemical reaction causes the concrete to crack and deteriorate that the plaintiff has sought coverage from Metropolitan. It is because of this physical damage to the concrete walls that the plaintiff may be considered to have suffered a " loss." As the England court points out, citing Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760, 782, 67 A.3d 961 (2013), Connecticut law recognizes a " difference between a loss and its cause."
Specifically, courts interpreting insurance policies to determine the scope of insurance coverage have distinguished between loss or damage, on the one hand, and processes that could- but have yet to- cause loss or damage, on the other, ruling that the latter do not fall within the scope of coverage where the policies require physical loss or damage to trigger coverage. In Capstone Building Corp. v. American Motorists [Ins. Co. ], the Connecticut Supreme Court held that " the escape of carbon monoxide, without more, is not property damage," and therefore did not constitute " physical injury to tangible property, including all resulting loss of use of that property" as required to trigger coverage under a commercial general liability policy.England v. Amica Mutual Ins. Co., supra .
The court disagrees with the plaintiff’s notion that the underlying chemical reaction causing damage to the plaintiff’s basement walls can itself be considered the loss for which he seeks coverage. Thus, even if there had been a sudden chemical reaction, it is the cracking and deterioration of the concrete that constitutes the loss. The loss must occur suddenly in order for coverage to attach.
B. " Sudden and Accidental" Loss
The plaintiff does not take issue with Metropolitan’s attribution of a temporal meaning to the word " sudden" as it is used in the context of both coverages. A number of Connecticut federal district courts have already concluded that the word does have a temporal meaning in this context. All of those courts rely on the Connecticut Supreme Court’s decision in Buell Industries, Inc. v. Greater New York Mutual Insurance Co., 259 Conn. 527, 791 A.2d 489 (2002). In Buell, the court was called upon to address the meaning and applicability of the phrase " sudden and accidental" as it was used in an exception to the pollution exclusion contained in a comprehensive general liability policy. The policyholder was facing liability for the remediation of environmental contamination, primarily groundwater pollution that had occurred as a result of its waste disposal practices over the course of many years. The policies excluded coverage for property damage arising out of the release or discharge of pollutants unless the release or discharge was " sudden and accidental." The policyholder argued that the exception applied because the phrase " sudden and accidental" was ambiguous. Specifically the argument was that " sudden" may be understood to mean " unexpected" and not necessarily " quick or abrupt." While recognizing that the word " sudden" could have two different meanings, one " temporally abrupt" and the other " unexpected," the court nevertheless concluded the word could have only one meaning when paired with the word " accidental," as it is in this case.
[T]he inescapable conclusion is that sudden, even if including the concept of unexpectedness, also adds an additional element because unexpectedness is already expressed by accidental. This additional element is the temporal meaning of sudden, i.e., abruptness or brevity. To define sudden as meaning only unexpected or unintended, and therefore a mere restatement of accidental, would render the suddenness requirement mere surplusage.
(Citation omitted) Id., 541 quoting SnyderGeneral Corp. v. Great American Ins. Co., 928 F.Supp. 674, 680 (N.D.Tex. 1996), aff’d, 133 F.3d 373 (5th Cir. 1998). Based upon this analysis of the language, the court in Buell concluded that " the word sudden was included in these policies so that only a temporally abrupt release of pollutants would be covered as an exception to the pollution exclusion." Buell Industries, Inc. v. Greater New York Mutual Insurance Co., supra, 540.
The plaintiff’s expert states there is a progressive deterioration of the basement walls in the plaintiff’s home, caused by the internal expansion of the concrete as it is exposed to the presence of moisture, that could advance to the point that the walls will lose much of their strength and have to be replaced. The rate at which this will occur is indeterminate, but the plaintiff has had the unfortunate experience to witness the progression of this condition since he purchased the house in 2009. The loss is a progressive one, occurring over the course of many years. It is not a " sudden" event as that word appears in the policy. Because the loss must be sudden in order for coverage to attach under either " Section I- Losses We Cover," or the Additional Coverage for Collapse, the plaintiff’s loss is not covered.
Because the court agrees with Metropolitan’s position that the plaintiff’s loss was not sudden and accidental, the court does not reach the question raised by Metropolitan concerning the sufficiency of the evidence to satisfy the substantial impairment of structural integrity standard established in
C. Additional Coverage for Reasonable Repairs
Finally, the plaintiff asserts coverage under the Additional Coverage for Reasonable Repairs. This coverage does not oblige Metropolitan to pay for any repairs that might reasonably be necessary at the plaintiff’s home. The coverage pays reasonable expenses incurred by a policyholder " for necessary immediate and temporary repairs to protect covered property from further loss following a loss we cover." It is obviously intended to eliminate a policyholder’s hesitance to take immediate action to mitigate a loss for fear that the insurance company may not reimburse the expense. This assurance of coverage, however, is predicated upon the assumption that there has already been " a loss we cover." It is not stand-alone coverage for repairs to a home, even if undertaken to prevent what might one day be a covered loss. Absent coverage under Section I- Losses We Cover, or the Additional Coverage for Collapse, the essential prerequisite for a " loss we cover" is not satisfied in this case and the reasonable repairs coverage does not apply. See Liston-Smith v. CSAA Fire & Casualty Ins. Co., United States District Court, Docket No. 3:16CV510 (JCH) (D.Conn. December 15, 2017).
BAD FAITH AND CUTPA/CUIPA
Having concluded there is no coverage for the plaintiffs alleged loss under the Metropolitan policy, the court must consider in that context the viability of the plaintiff’s common-law bad faith claims and his unfair insurance practice claims under CUTPA/CUIPA. Metropolitan argues that these claims must fail because there is no coverage under the policy and, even if coverage had been found, because its coverage position is at least " fairly debatable." As to the CUTPA/CUIPA count, Metropolitan also argues there is insufficient evidence of a general business practice, as required under CUIPA to establish an unfair settlement practice. General Statutes § 38a-816(6)(F).
The court does not reach the latter ground because no coverage has been found.
The court also does not reach this ground because there is no coverage under the policy. ---------
Regarding the common-law bad faith claim, the plaintiff argues that there is coverage under the policy and it was bad faith on the part of Metropolitan to interpret the policy in such a way as to reach a contrary conclusion. Because the court has found there is no coverage under the policy, the common-law bad faith claim must fail. " [B]ecause the covenant of good faith and fair dealing only ‘requir[es] that neither party [to a contract] do anything that will injure the right of the other to receive the benefits of the agreement,’ it is not implicated by conduct that does not impair contractual rights." (Internal quotation marks omitted.) Capstone Building Corp. v. American Motorists Ins. Co., supra, 308 Conn. 794, quoting Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 200, 663 A.2d 1001 (1995). Because the plaintiff has not been deprived of any benefits under the Metropolitan policy, there can be no claim for bad faith.
The plaintiff’s CUTPA/CUIPA claim reiterates the allegations set forth in the common-law bad faith claim concerning the misinterpretation and misapplication of relevant policy provisions by Metropolitan and alleges that Metropolitan " has regularly denied claims in similar manners or on similar grounds or other grounds." This count also appears to allege that Metropolitan is engaged in a scheme, plan, or conspiracy to indiscriminately deny all collapse claims associated with the crumbling basement walls phenomenon in this judicial district, carried out through ISO. Whatever communications may have taken place within ISO, the court has concluded that the denial of coverage was not wrongful. " When CUTPA and CUIPA claims are premised on denial of coverage under an insurance policy and the insurer’s interpretation of the policy is correct, ‘there can be no genuine issue of material fact as to whether the application of that interpretation as a general business practice constituted oppressive, unethical or unscrupulous conduct in violation of the statutes.’ " Liston-Smith v. CSAA Fire & Casualty Ins. Co., supra, United States District Court, Docket No. 3:16CV00510 (JCH), quoting Zulick v. Patrons Mutual Ins. Co., 287 Conn. 367, 378, 949 A.2d 1084 (2008).
CONCLUSION
For all of the foregoing reasons, the defendant Metropolitan’s motion for summary judgment is granted as to all counts of the complaint.
Carlson v. Allstate Insurance Company, Docket No. 3:15cv01045 (MPS), 2017 WL 4285687 (D.Conn. September 27, 2017); Valls v. Allstate Insurance Company, Docket No. 3:16cv01310 (VAB), 2017 WL 4286301 (D.Conn. September 27, 2017); Adams v. Allstate Insurance Company, 276 F.Supp.3d 1 (D.Conn. 2017); Clough v. Allstate Insurance Company, 279 F.Supp.3d 387 (D.Conn. 2017); Miller v. Allstate Insurance Company, 279 F.Supp.3d 381 (D.Conn. 2017); Agosti v. Merrimack Mutual Fire Insurance Company, supra .
Beach . The court notes, however, that this issue is ordinarily a question for the trier of fact. Roberts v. Liberty Mutual Fire Insurance Company, 264 F.Supp.3d 394, 410 (D.Conn. 2017).