Opinion
TTDCV166010893S
07-24-2018
Paul E. SODERBURG et al. v. UNITRIN PREFERRED INS. CO. et al.
UNPUBLISHED OPINION
OPINION
Sferrazza, J.
The defendants are four insurance companies that provided or provide homeowner’s insurance coverage for the plaintiffs’ house in South Windsor, Conn., from 1997 to the present. Each defendant moves for summary judgment with respect to the plaintiffs’ claims that these companies have breached or will breach their respective insurance contracts by denying compensation for losses incurred as a result of substantial and dangerous deterioration of the concrete foundation of their home. As to all defendants, except Covenant Insurance Company, the plaintiffs also assert violations of the Connecticut Unfair Insurance Practices Act (CUIPA) which, thereby, comprise violations of the Connecticut Unfair Trade Practices Act (CUTPA).
Summary Judgment shall be granted if the pleadings and documentary proof submitted demonstrate that no genuine dispute as to material facts exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
The following facts are undisputed. The petitioners’ house, located at 105 Stonefield Trail in South Windsor, was built in 1985. The plaintiffs purchased the home in 1993. In conjunction with that purchase, Independent Home Service Company conducted a structural evaluation of the house and found no significant cracking or other notable flaws in the foundation. Unitrin Preferred Insurance Company (Kemper) insured the premises from 1997 to 2006; the Standard Fire Insurance Company (Travelers) from 2006 to 2009; Peerless Indemnity Insurance Company (Liberty Mutual) from 2009 to 2012; and Covenant Insurance Company (Arbella) from 2012 to the present day. The basement of the home remained unfinished so that the interior walls of the concrete foundation have always been exposed to plain view.
Sometime in 2008 or 2009, Collette Soderburg noticed cracking on the exterior of the foundation walls. This prompted her to check the interior of these walls, and she observed "spider cracks" appearing on these interior surfaces. In June 2009, the plaintiffs hired a mason, David Hardy, to address the cracking problem, and Hardy advised the plaintiffs he could only apply a temporary, cosmetic repair that would leave the cracking process unchecked.
Three weeks later, the plaintiffs retained Mark Roy, from the East Coast Home Inspection Company, to evaluate the situation. Roy inspected the foundation on June 23, 2009, and photographed salient features during his inspection. Roy saw horizontal cracks that he described as atypical. He also expressed concern over cracking in a corner and recommended that the plaintiffs consult a building contractor to provide a reasonably permanent solution to this problem.
Sometime later, the plaintiffs contacted the Attack-A-Crack company to suggest ways to redress the foundation cracking. That company indicated that injecting an epoxy or resinous material to fill the fissures would improve the appearance but, again, fail to prevent future deterioration.
During 2015, the plaintiffs hired engineering and construction contractors to ascertain the source of and fix the problem. These professionals determined that the defective condition of the foundation resulted from a destructive chemical reaction precipitated by moisture interacting with a mineral that had been present in the concrete mix used to pour the foundation. The premature crumbling of the foundation caused by this flaw in the concrete mix is irreversible and irremediable except by total removal of the original foundation and replacement with a new one. This was done in 2016, at great expense and inconvenience.
On January 2, 2016, the plaintiffs notified Covenant of their claim for reimbursement. On or about February 22, 2016, the plaintiffs also notified Unitrin, Standard Fire, and Peerless. The three earlier insurers have denied liability, and Covenant has yet to decide whether to cover this claim.
Among the defenses interposed individually, all four insurers contend that there is no genuine controversy that the losses claimed by the plaintiffs occurred outside of their particular coverage periods; that the contractual limitation of one year in which to commence suit lapsed; and that the contract language either provides no coverage or excludes coverage for the type of damage sustained. Covenant argues that the loss predated the issuance of its first policy, and the other insurers submit that it occurred after their last policy period expired.
Obviously, a key circumstance involves an analysis and determination of when this kind of loss is triggered. At oral argument, all parties concurred that the same trigger rule applies when considering whether the loss occurred during a policy period and whether the one-year limitation period lapsed. The pinning down of a triggering event or events creates a dilemma for the plaintiffs because, unless the law recognizes the possibility of multiple triggers or continuous trigger, proof of loss at a particular time, exposing one insurer to liability, may undermine the plaintiffs’ claims against the other insurers.
As aptly described by Judge Farley in Dino v. Safeco Insurance Company of America, Superior Court, Tolland Judicial District, d.n. CV 16-6010428 (June 12, 2018), there are "four general theories [that] provide respectively that coverage is triggered: (1) when the subject of the loss, injury or damage is first exposed to its cause ("exposure"); (2) when injury or damage actually takes place ("injury-in-fact"); (3) when the loss, injury or damage becomes known or reasonably discoverable ("manifestation"); and (4) over the entire period of time between first exposure and manifestation, triggering all policies issued during that time ("continuous trigger")."
The court adopts the well-reasoned decision of Judge Farley in Dino, supra, that the correct triggering event is manifestation of the loss and damage rather than the continuous trigger option propounded by the plaintiff. Unlike prolonged contamination cases, the injurious act in the present case was undeniably the use of inferior concrete mix in 1985 when the foundation was poured. This was an isolated event, although the deficient quality of the concrete took years to manifest.
Unitrin, Standard Fire, and Peerless
For each of these three insurers, the latest possible manifestation date was the last day of the last policy period for which the policy was effective. For Unitrin, that date was in 2006; for Standard Fire, in 2009; and for Peerless, in 2012. The present action commenced in 2016, more than one year after the latest possible trigger date for these liabilities under these policies. All three insurers utilized virtually the same one-year limitation of action language in their insurance contracts with the plaintiffs, and, consequently, these three defendants are entitled to summary judgment as a matter of law.
Covenant
The motion by Covenant is denied because there exists a genuine factual dispute concerning whether the loss, purportedly covered by its policy, was triggered during the relevant policy period and was the type of loss for which Covenant is liable.