Opinion
CV176011987S
04-19-2018
Martin R. FORTIN et al. v. INSURANCE COMPANY OF the STATE OF PENNSYLVANIA et al.
UNPUBLISHED OPINION
OPINION
Farley, J.
In this insurance dispute involving crumbling concrete basement walls at the home of the plaintiffs, Martin R. Fortin and Olga M. Azinheira, the defendant, Nationwide Insurance Company (" Nationwide" ), has moved for summary judgment on the second and third counts of the plaintiffs’ complaint. Count Two alleges breach of contract based on Nationwide’s denial of coverage for the damage to the plaintiffs’ basement. Count Three alleges Nationwide violated 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" ). Nationwide, which provided homeowners insurance coverage to the plaintiffs between July 29, 2008 and August 29, 2010, maintains that its policy does not provide " collapse" coverage for the claimed loss. Based on that, Nationwide asserts further that the plaintiffs have no viable claim for violation of CUTPA/CUIPA. Nationwide’s motion is based principally upon the factual allegations set forth in the plaintiffs’ complaint, supplemented by copies of the relevant policies and the recorded statement of one of the plaintiffs. For the reasons set forth below, Nationwide’s motion is granted.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs’ complaint alleges the following material facts. The plaintiffs’ home in Tolland, Connecticut was built in 1998. They purchased the home in April 2004. In February 2016 they learned of " a series of horizontal and vertical cracks throughout the concrete basement walls of their home in connection with their attempts to list the property for sale." After " consulting with various contractors and professionals" concerning the causes of these cracks and methods to repair them, the plaintiffs " learned that the form of ‘pattern cracking’ was due to a chemical compound found in certain concrete basement walls constructed between the late 1980s and the early 1990s ..." The plaintiffs allege that this chemical compound " 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." The plaintiffs allege this " deterioration ... continues to advance ... [and] [a]t some point between the date on which the basement walls were poured and late February 2016 the basement walls suffered a substantial impairment to their structural integrity." They allege further that it 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 ... [and] [w]ith the falling in of the basement walls, the entire home will fall to the ground." The complaint alleges that Nationwide wrongfully denied their claim for coverage due to this problem, notwithstanding that under its policies " Nationwide agreed to provide coverage for the collapse of a building caused by hidden decay or the use of defective materials or methods in construction."
Nationwide has also submitted a certified copy of a recorded statement taken from Mr. Fortin in April 2016. The statement adds very little to what is in the complaint concerning the condition of the home. In the statement Mr. Fortin indicates that the basement was partially finished after the plaintiffs purchased it, that there is a leak under the septic pipes when it rains, and that " the basement walls are beginning to show signs of distress and cracking."
Section I of the Nationwide policies does not cover loss " resulting directly or indirectly" from " collapse except as provided by Section I- Additional property coverages- Collapse." The Additional property coverage for collapse states:
The plaintiffs have only referenced the Nationwide policies’ coverage for " collapse" in their complaint, Nationwide has limited the scope of its motion to the policy terms related to that coverage and the plaintiff have likewise limited their discussion of the policy provisions to Additional Coverage 8. The court, therefore, does not consider the potential for coverage under any other policy terms.
We cover direct physical loss to covered property described in Coverages A, B and C caused by the complete collapse of a building structure or any part of a building structure. Collapse means an abrupt falling down or caving in of a building or other structure or any part of a building or other structure with the result that it cannot be occupied for its intended purpose. A building or other structure or part of a building or other structure is not considered in a state of collapse if:
a) It is standing but in danger of falling down or caving in;
b) It is standing but has separated from any other part of the building;
c) It is standing even if it shows signs of settling, cracking, shifting, bulging, sagging, bowing, bending, leaning, shrinkage or expansion.
The collapse must be sudden and accidental and caused by one or more of the following:
a) one of the Coverage C- Personal property Perils insured against;
b) hidden decay of a supporting or weight bearing building structural member;
c) hidden insect or vermin damage of a supporting or weight bearing building structural member;
d) weight of:
(1) contents, equipment, animals or people; or
(2) Rain, ice, sleet or snow which collects on the roof; or
e) Defective material or methods used in the construction, repair or remodeling or renovation if the collapse occurs in the course of work being done.
The presence of any decay, insect or vermin damage must be unknown to an insured prior to collapse.
Loss to an awning, fence, patio, swimming pool, underground pipe, flue, drain, cesspool, septic tank, foundation, retaining wall, bulkhead, pier, wharf, or dock is not included under items b), c), d), or e) unless the loss is a direct result of the collapse of a building.
The limit of liability applying to the covered property is not increased by this coverage.
Nationwide argues that the allegations of the plaintiffs’ complaint are insufficient to trigger this coverage because they implicitly " concede that the Property has not fallen down- but instead remains standing ... [and] also concede that the purported ‘collapse’ was not sudden or ‘abrupt.’ " Nationwide argues the plaintiffs " simply cannot avoid the fact that the [p]roperty remains standing. Moreover, damage to the [p]laintiffs’ basement walls, if any, was not abrupt, but rather is happening over time."
The court only addresses the specific portions of the collapse coverage policy language relied upon by Nationwide and does not address any other arguments Nationwide might have advanced concerning that policy language.
In addition to alleging breach of contract, the plaintiffs allege Nationwide violated CUTPA/CUIPA by providing the plaintiffs with a " knowingly false and misleading reason for the denial of coverage" and alleging that Nationwide regularly denies claims for concrete decay in a similar fashion. By its denial of coverage, they allege, Nationwide " has become part of or confirmed its participation in an insurance industry wide practice of denying coverage for concrete decay claims ..." The complaint appears to allege that Nationwide is engaged in a scheme, plan, or conspiracy to indiscriminately deny all collapse claims associated with the crumbling basement walls phenomenon in eastern Connecticut, carried out through the Insurance Services Organization (ISO). Nationwide moves for summary judgment on this claim as well, arguing that because Nationwide properly denied coverage and the plaintiffs’ CUTPA/CUIPA claim is premised upon the assertion that Nationwide wrongfully denied coverage, it is entitled to summary judgment on that claim as well.
The plaintiffs respond to Nationwide’s motion first by claiming that it is procedurally defective to the extent that it relies upon the allegations of the plaintiffs’ complaint, rather than evidence concerning the condition of the plaintiffs’ home. The plaintiffs urge the court to treat the motion as a motion to strike. The plaintiffs argue further, however, that even if the allegations of the complaint may properly be treated as judicial admissions, " they are not dispositive of the [p]laintiffs’ breach of contract claim and, by extension, the [p]laintiffs’ claim for violation of CUTPA/CUIPA." Should the court determine otherwise, they seek an opportunity to replead.
DISCUSSION
I. 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).
Where a defendant successfully challenges the legal sufficiency of the allegations of a complaint by means of a motion for summary judgment, the motion may be granted and judgment entered in favor of the defendant when " the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). Where it is apparent from the evidence submitted and the parties’ arguments in connection with a motion for summary judgment that the legal deficiency identified by the defendant may be cured by repleading, the plaintiff must be given an opportunity to replead upon the granting of the motion. American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009).
II. 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.
III. Nationwide’s Reliance on Judicial Admissions
Nationwide maintains that the allegations of the plaintiffs’ complaint are judicial admissions it may rely upon as evidence in support of its motion for summary judgment. The plaintiffs argue that their allegations are not judicial admissions because they are not facts within their personal knowledge as lay homeowners and, alternatively, they should be permitted to amend their complaint.
" Judicial admissions are voluntary and knowing concessions of fact by a party or a party’s attorney occurring during judicial proceedings ... They excuse the other party from the necessity of presenting evidence on the fact admitted and are conclusive on the party making them." (Citation omitted; internal quotation marks omitted.) Borrelli v. Zoning Board of Appeals, 106 Conn.App. 266, 271, 941 A.2d 966 (2008). " Judicial admissions are defined as deliberate, clear, unequivocal statements by a party about a concrete fact within that party’s knowledge." (Internal quotation marks omitted.) Mamudovski v. BIC Corp., 78 Conn.App. 715, 727, 829 A.2d 47 (2003), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004). " A party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified." (Internal quotation marks omitted.) Id., 728.
" Factual allegations contained in pleadings upon which the cause is tried are considered judicial admissions and hence irrefutable as long as they remain in the case." (Internal quotation marks omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 708, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016); see Practice Book § 4-2(b). " For a factual allegation to be held to be a judicial admission, the fact admitted should be one within the speaker’s particular knowledge and one about which the speaker is not likely to be mistaken ... A conclusive judicial admission, to be binding, must be one of fact and not a conclusion or an expression of opinion." (Internal quotation marks omitted.) Mamudovski v. BIC Corp., supra, 78 Conn.App. 728-29 (plaintiff’s allegation that she was injured in the course of her employment is not judicial admission because of its legal and conclusory nature). The determination of whether a particular statement is a judicial admission based upon an interpretation of the pleadings is a mixed question of law and fact. Id., 727.
Practice Book § 4-2(b) provides in relevant part: " The signing of any pleading ... shall constitute a certificate that the signer has read such document, that to the best of the signer’s knowledge, information and belief there is good ground to support it ..."
The plaintiffs do not dispute that their affirmative allegations in the complaint are voluntary concessions and, likewise, do not dispute that the allegations are factual in nature. They are capable of being proven true or false. Instead, the plaintiffs maintain that these alleged facts are not judicial admissions because they are not within their knowledge as lay homeowners. The court disagrees with the plaintiffs for several reasons. First, the plaintiffs do not need an advanced scientific understanding to implicitly concede that their house is still standing; this fact can be plainly observed by any lay individual. Second, the plaintiffs specifically allege that " they learned" about the cause of the concrete’s deterioration through investigation and consultation with contractors and professionals. Based on the knowledge they gained in the process, the plaintiffs’ have asserted factual allegations concerning the cause and the nature of the deterioration taking place. Lastly, even assuming that the plaintiffs were unaware of these facts, their counsler has made these affirmative allegations on their behalf; see Borrelli v. Zoning Board of Appeals, supra, 106 Conn.App. 271 (judicial admission can be made by party’s attorney); and has certified " to the best of [his] knowledge, information and belief there is good ground to support it." Practice Book § 4-2(b). Therefore, the plaintiffs’ allegations that the deteriorating condition of their basement walls began when the concrete was originally mixed, that it " continues to advance" and that it is a " question of time until the basement walls ... fall in" and " the entire home will fall to the ground" are judicial admissions because they are voluntary concessions of facts within their knowledge.
Nationwide’s reliance upon judicial admissions contained in the pleadings does not transform its motion for summary judgment into a de facto motion to strike. The motion does not challenge the legal sufficiency of the complaint. It relies upon some of the allegations of the complaint as conclusive proof of the facts asserted, as is its right to do, relieving it of any obligation to prove those facts. Nationwide, as it must, also supplements the record with additional evidence, most significantly the applicable insurance policies, but also Mr. Fortin’s recorded statement. The plaintiffs, however, are not necessarily forever bound by their judicial admissions. Their admissions are " irrefutable [only] as long as they remain in the case." Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., supra ,167 Conn.App. 708 " A party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified." Mamudovski v. BIC Corp., supra, 78 Conn.App. 728, quoting Hirsch v. Thrall, 148 Conn. 202, 206-07, 169 A.2d 271 (1961).
IV. Collapse Coverage
Nationwide asserts that the collapse coverage afforded by its policies does not apply to the plaintiffs’ alleged loss because their home " remains standing" and the deterioration of the basement walls was not " abrupt" or " sudden." Nationwide’s argument presumes that the collapse coverage does not apply if the plaintiffs’ home " remains standing" and the plaintiffs challenge that interpretation of the policy. Nationwide’s other assertion, however, that the alleged collapse was not " sudden" or " abrupt" goes unanswered by the plaintiffs in their brief. At oral argument, plaintiffs’ counsel argued that " abrupt" is ambiguous in the policy because it could have either a temporal meaning, as Nationwide suggests, or it could simply mean " unexpected." The court concludes that the policy unambiguously requires that a collapse be temporally " abrupt" and " sudden" and that the allegations of the complaint establish that requirement is not met in these circumstances. The court, therefore, does not reach the question whether a building or part of a building that remains standing has not " collapsed."
This issue was identified and discussed but not decided by this court in Markland v. Homesite Insurance Company, Superior Court, judicial district of Tolland, Docket No. CV-16-6010323 (March 6, 2018), and Perracchio v. Homesite Insurance Company, Superior Court, judicial district of Tolland, Docket No. CV-16-6010324 (March 6, 2018). It was unnecessary to resolve the question in those cases because there was no evidence that the plaintiffs’ homes could not be " occupied for [their] intended purpose." Thus, even if " falling down or caving in" did not exclude all circumstances where the building was still standing, the requirement that the building or part of the building be unfit for occupancy was not met. The court did not have to decide whether the mere fact that the homes remained standing placed the plaintiffs’ claims in those cases outside the collapse coverage. Unlike the record before the court in Markland and Perracchio, in this case the allegations of the complaint do not establish, one way or the other, whether the plaintiffs’ home can be " occupied for its intended purpose." Nevertheless, because the court resolves this case based on Nationwide’s position that " abrupt" and " sudden" have a temporal meaning and the allegations of the complaint depict a gradual process of deterioration, it is again unnecessary to resolve the question whether a building or part of a building can remain standing and still trigger the collapse coverage under this policy language.
The Nationwide policies define " collapse" as an " abrupt falling down or caving in ..." The policies further stipulate that the " [t]he collapse must be sudden and accidental ..." At oral argument, the plaintiffs argued that two separate meanings can be attributed to the word " abrupt." The plaintiffs argue that " abrupt" could have a temporal meaning requiring an event that occurs quickly or all at once, but may also simply mean " unexpected." Thus, even if the deterioration of their home is a gradual process, they maintain, it was also unexpected and, therefore, within the scope of a recognized meaning of the word " abrupt." This argument echoes a statement by the Connecticut Supreme Court in Verdon v. Transamerica Insurance Company, 187 Conn. 363, 446 A.2d 3 (1982) regarding the word " sudden."
The plaintiffs did not address the " sudden and accidental" language in their brief or at oral argument.
In Verdon, in a context apart from interpreting insurance policy language, the court said " [a]lthough ‘sudden’ may also imply quickness, its primary meaning is unexpected, ‘happening without previous notice or very brief notice.’ " Id., 368, quoting Webster, Third New International Dictionary. This statement, along with conflicting decisions in other states, led to an argument that the phrase " sudden and accidental," as it appeared in a general liability policy’s standard qualified pollution exclusion was ambiguous and, thus, that the gradual release of pollutants was not subject to the exclusion. Buell Industries, Inc. v. Greater New York Mutual Insurance Company, 259 Conn. 527, 791 A.2d 489 (2002); see Reichhold Chemicals, Inc. v. Hartford Accident & Indemnity Co., Superior Court, complex litigation docket at Middletown, Docket No. X03-CV880085884S, (October 1, 1998) (23 Conn.L.Rptr. 394), rev’d on other grounds, 252 Conn. 774, 750 A.2d 1051 (2000). In Buell, however, the court resolved that debate and concluded that the word " sudden," as it appeared in the phrase " sudden and accidental" in the pollution exclusion, had only one meaning and that meaning is temporal, as opposed to " unexpected." The court held that the alternative usage of " sudden" to mean " unexpected" was not applicable when " sudden" is paired with the word " accidental." " Reading sudden in its context, i.e. joined by the word [accident], the inescapable conclusion is that sudden, even if including the concept of unexpectedness, also adds an additional element because unexpectedness is already expressed by accident[al]. This additional element is the temporal meaning of sudden, i.e. abruptness or brevity." (Brackets in original.) Id., 540-41. Numerous courts have relied upon Buell to resolve that the phrase " sudden and accidental" has the same meaning as it is used in the context of an insurance policy’s coverage for collapse. Rudeen v. Allstate Insurance Company, United States District Court, Docket No. 3:16-cv-1827 (MPS) (D.Conn. March 20, 2018) and cases cited therein.
Buell not only resolves the question of ambiguity concerning the phrase " sudden and accidental," it also resolves any doubt concerning the meaning of " abrupt." Throughout its discussion of the two alternative interpretations of " sudden," i.e. a temporal meaning as opposed to " unexpected," on multiple occasions the court used the words " abrupt" and " abruptness" to describe what was meant by the temporal connotation of the word " sudden." Id., 536-37, 540, 541, 543, 544, 545, 548 n.20, 549, 551, 552, 553, 554, 555, 557 and 559. Thus, in a very analogous context, the court has already determined that " abrupt" means rapid or quick, not gradual. Other courts have reached the same conclusion regarding the use of the word " abrupt" as it appears in the same or virtually identical policy language in cases involving crumbling concrete basement walls. Jemiola v. Hartford Casualty Insurance Company, Superior Court, judicial district of Tolland, Docket No. CV-15-6008837 (March 2, 2017); Rudeen v. Allstate Insurance Company, supra, United States District Court, Docket No. 3:16-cv-1827 (MPS); Zamichiei v. CSAA Fire & Casualty Insurance Company, United States District Court, Docket No. 3:16-cv-739 (VAB) (D.Conn. February 20, 2018).
The plaintiffs allege that the offending chemical compound within their concrete basement walls, " 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." The plaintiffs allege this " deterioration ... continues to advance ... [and] [a]t some point between the date on which the basement walls were poured and late February 2016 the basement walls suffered a substantial impairment to their structural integrity." They allege further that it 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 ... [and] [w]ith the falling in of the basement walls, the entire home will fall to the ground." There is no reasonable way to interpret these allegations to describe an " abrupt" or a " sudden and accidental" occurrence that has taken place. They describe a gradual process of deterioration that began when the concrete was mixed, that continues to occur and ultimately may lead to an abrupt or sudden occurrence. Even if it is possible to theorize that the alleged " substantial impairment of structural integrity" may have occurred suddenly or abruptly, that phrase has no meaning in this context because it is a default definition of " collapse" that may apply in cases where an insurance policy fails to define that term. Roberts v. Liberty Mutual Fire Insurance Co., 264 F.Supp.3d 394, 409 (2017), citing Beach v. Middlesex Mutual Assurance Company, 205 Conn. 246, 249, 532 A.2d 1297 (1987). In this case the policy does define " collapse" as set forth above. Thus the court concludes that, based on the allegations of the complaint, the circumstances of this case do not trigger the coverage for collapse afforded under the Nationwide policies.
V. Plaintiff’s Request to Amend
The plaintiffs objected to Nationwide’s reliance on the judicial admissions in their complaint to provide the factual basis for its motion for summary judgment because they maintain the information contained in the relevant allegations was obtained from contractors and other professionals. In their brief, however, the plaintiffs alternatively requested leave to amend their complaint " to explain the basis for the knowledge in each precise paragraph." No such amendment, however, has been formally proposed. As discussed previously, it cannot be the case that the plaintiffs relied upon third parties to determine that their house is still standing. The court, however, has not relied upon that admission to conclude that the collapse coverage is inapplicable. The critical admission is that the process of deterioration underway at the plaintiffs’ home is a gradual process, not a sudden or abrupt event. This might also be within the ken of any layperson, but the specific allegations raising that inference in this case are quite plausibly matters beyond the plaintiffs’ firsthand knowledge. They are binding upon the plaintiffs, as discussed above, but the potential secondhand nature of their knowledge on these issues is worthy of consideration in the context of their request for permission to amend. Thus, for purposes of addressing the plaintiffs’ alternative request to amend, the court will assume that to be the case.
At oral argument, the court inquired of plaintiffs’ counsel concerning the nature of any proposed amendment and counsel explained that the plaintiffs contemplated an amendment that would either delete the allegations relied upon by Nationwide or expand on the complaint’s allegations to implicate alleged ambiguities in the policies, including the alleged ambiguity inherent in the word " abrupt."
Where it is apparent from the evidence submitted and the parties’ arguments in connection with a motion for summary judgment that a legal deficiency identified by the defendant may be cured by repleading, the plaintiff should be given an opportunity to replead upon the granting of the motion. American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009). Although, strictly speaking, the court is not confronting a circumstance where a motion for summary judgment is challenging the legal sufficiency of the complaint, the court does have the discretion to permit the plaintiffs to withdraw, modify or explain their judicial admissions and this technical distinction would not prevent the court from doing so under appropriate circumstances. Mamudovski v. BIC Corp., supra, 78 Conn.App. 728. In these circumstances, however, none of the contemplated amendments would cure the deficiency in the plaintiffs’ claim for coverage under the collapse provision.
First, even if the plaintiffs’ allegations are not treated as judicial admissions, they would stand as evidentiary. Thus, if they amended their complaint to delete all these allegations, the allegations would remain in the case as evidentiary admissions along with Mr. Fortin’s statement. Danko v. Redway Enterprises, Inc., 254 Conn. 369, 374-76, 757 A.2d 1064 (2000). The plaintiffs produced no evidence countering these admissions in opposition to Nationwide’s motion for summary judgment. Even after the proposed amendment, therefore, the record on summary judgment would functionally be the same. By deleting the material allegations, the plaintiffs’ factual allegations would still comprise the substantial portion of the evidentiary record before the court on the issues they address, instead of the conclusory admissions they are at this stage. The record would also still include Mr. Fortin’s evidentiary admission that in February to April 2016 the basement walls were " beginning to show signs of distress and cracking." Deleting all the allegations in question from the complaint, therefore, would have no practical effect on the outcome. Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., supra, 167 Conn.App. 709.
The plaintiffs’ alternative approach, to plead additional facts implicating the ambiguities the plaintiffs suggest inhere in the collapse provision, is also unavailing. The only ambiguity suggested by the plaintiffs with respect to the requirement that any collapse be " abrupt" and " sudden and accidental" is that the word " abrupt" could mean either temporally quick or, alternatively, unexpected. The court has held, however, that the terms " abrupt" and " sudden and accidental" are not ambiguous in this context. Among other things, there must be a temporally rapid or quick " falling down or caving in of a building structure or any part of a building structure" in order for Nationwide’s collapse coverage to apply. The plaintiffs offered no evidence that such an event has taken place, nor have they represented that any such events can be alleged in an amended complaint. Under these circumstances, it does not appear that the defect in their claim can be cured by a withdrawal or modification of their judicial admissions. The court, therefore, denies the plaintiffs’ request to replead and grants Nationwide’s motion for summary judgment on the plaintiffs’ breach of contract claim.
VI. Plaintiffs’ CUTPA/CUIPA Claim
Having concluded there is no coverage for the plaintiffs’ alleged loss under the Nationwide policies, the court must consider in that context the viability of the plaintiffs’ unfair insurance practice claims under CUTPA/CUIPA. Nationwide argues that this claim must fail because there is no coverage under the policy. The plaintiffs assert that Nationwide violated CUTPA/CUIPA by providing the plaintiffs with a " knowingly false and misleading reason for the denial of coverage" and because Nationwide regularly denies claims for concrete decay in a similar fashion. They further allege that, by its denial of their claim for coverage, Nationwide " has become part of or confirmed its participation in an insurance industry wide practice of denying coverage for concrete decay claims ..." Their CUTPA/CUIPA claim, therefore, ultimately rests upon the proposition that Nationwide wrongfully denied coverage.
" 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 statues.’ " 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). The plaintiffs do not dispute this proposition in opposing summary judgment. Rather, they reassert their coverage position and, alternatively, seek an opportunity to replead. For the reasons discussed above, the request to replead the contract claim has been denied and, for the same reasons, the request is denied as to the CUTPA/CUIPA count. Because the CUTPA/CUIPA claim is premised upon a wrongful denial of coverage, the court grants Nationwide’s motion for summary judgment on that count as well.
CONCLUSION
For all of the foregoing reasons, the defendant Nationwide’s motion for summary judgment is granted and judgment shall enter in its favor on Counts Two and Three of the plaintiffs’ complaint.