Opinion
CV166010517S
07-11-2019
Alan J. GNANN et al. v. UNITED SERVICES AUTOMOBILE ASSOCIATION
UNPUBLISHED OPINION
OPINION
Farley, J.
In this insurance dispute involving crumbling concrete basement walls at the home of the plaintiffs, Alan and Linda Gnann, the defendant, United Services Automobile Association ("USAA"), has moved for summary judgment on both counts of the plaintiffs’ complaint. The first count alleges breach of contract based on USAA’s denial of coverage for the damage. The second 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"). USAA, which provided homeowners insurance coverage to the plaintiffs from 1993 through the present, maintains that its policies do not provide coverage for the claimed loss. Based on the absence of coverage and, alternatively, a claim that its coverage position is at least "fairly debatable," USAA asserts further that the plaintiffs have no viable claim for violation of CUTPA/CUIPA.
FACTS AND PROCEDURAL BACKGROUND
The plaintiffs’ home in Tolland, Connecticut was built in 1985 and purchased by the plaintiffs in 1993. A home inspection conducted at the time they purchased the home reported that "[s]ome settlement and curing related cracks exist in the slab floor. No signs of any abnormal settlement were noted at the time of inspection. The cracks can be sealed." The concrete walls were "in overall sound condition." The plaintiffs maintain that it was not until 2015 that they became aware of an abnormal cracking condition in the basement. Although the plaintiffs have no recollection of it, USAA has produced some evidence that the plaintiffs actually contacted USAA on April 16, 2012 to report that the concrete in their basement walls was gradually deteriorating and to ask for an inspection. USAA’s records reflect there was a telephone discussion of the matter with Mr. Gnann and some policy exclusions were raised by USAA but USAA did offer to do an inspection. USAA’s record of the conversation, however, reflects that it concluded with the plaintiffs choosing not to proceed with an inspection or a claim.
In July 2015, local media coverage called the plaintiffs’ attention to the issue of crumbling concrete basements in northeast Connecticut. Upon inspecting their own basement, they recognized patterns in the cracking of their walls that resembled those they had observed in the media reports. They then contacted USAA on August 25, 2015 to report the problem and pursue a claim. The plaintiffs deny that the cracks they observed in 2015 were the same as any they may have observed in 2012. Mr. Gnann testified at his deposition that any cracks he observed prior to 2015 appeared to him to be "stress relief cracks" that he did not consider abnormal.
USAA denied the plaintiffs’ claim by letter dated October 10, 2015. The denial letter identified the "[d]ate of loss" as August 25, 2015. It denied coverage based on a number of policy exclusions, but did not mention the additional coverage for collapse. Toward the end of the letter, USAA informed the plaintiffs of some "important legal information," including a requirement that the plaintiffs "start legal action within two years from the date of this letter." The plaintiffs commenced this suit against USAA on March 24, 2016.
Shortly after commencing suit, the plaintiffs retained an engineer, David Grandpré, to inspect their property. Mr. Grandpréinspected the property on April 12, 2016. He observed severe cracking in the basement walls caused by an expansive chemical reaction within the concrete. There were very large cracks up to 1/2 inch wide, as well as loose pieces of concrete that could be removed from the walls. The deterioration of the concrete had "resulted in the bulging, bowing and shifting" of the walls. According to Mr. Grandpré, the bulging and bowing "are evidence that the concrete basement walls have failed and have begun to move inward due to the lateral pressure of the soil outside the home." In Mr. Grandpré ’s opinion, it was necessary to remove and replace the basement walls to remedy the problem. Left alone, the condition would have progressed to an uncertain point in time when the walls "would have eventually failed completely." At the time of his inspection, however, the structure was not in imminent peril of falling down and it was suitable for normal, continued use as a residence. In June 2017, the plaintiffs had their basement walls replaced.
The plaintiffs’ claim for coverage is limited to their assertion that the damage to their home is covered under the "Additional Coverage" for "Collapse" contained in all of the policies issued by USAA. Although there have been some changes in the language of the collapse coverage, it is undisputed that the changes since 2000 have been insignificant. The policy in effect in July 2015 excludes coverage for collapse, except as provided in the additional coverages as follows:
8. "Collapse" For an entire building or any part of a building covered by this insurance we insure for direct physical loss to covered property involving "collapse" of a building or any part of a building only when the "collapse" is caused by one or more of the following:
* * *
a. "Named peril(s)" apply to covered buildings and personal property for loss insured by this additional coverage;
b. Decay that is hidden from view, meaning damage that is unknown prior to collapse or that does not result from a failure to reasonably maintain the property;
* * *
f. Use of defective materials or methods in construction, remodeling or renovation.
Of particular significance to resolving USAA’s motion for summary judgment, the policy includes the following definition of "collapse."
5. "Collapse" means:
a. A sudden falling or caving in;
b. A sudden breaking apart or deformation such that the building or part of a building is in imminent peril of falling or caving in and is not fit for its intended use.
USAA argues that the definition of collapse clearly and unambiguously places the plaintiffs’ alleged loss outside the scope of the collapse coverage.
USAA’s policy also includes a suit limitation provision, which provides as follows:
8. Suit Against Us . No action can be brought against us unless you have ... [s]tarted the action within two years after the date of the loss.
USAA maintains the suit limitation provision precludes the plaintiffs’ action because the plaintiffs commenced this lawsuit more than two years after their April 2012 report of cracking as reflected in USAA’s records.
The plaintiffs argue that the definition of "collapse" in the USAA policy is ambiguous and must be construed in favor of coverage. They also dispute, as a factual matter, USAA’s assertion that the loss occurred in 2012, thus triggering a two-year period within which the plaintiffs were required to file suit. Even if the suit limitation were triggered in 2012, however, the plaintiffs argue that USAA’s statement in its October 10, 2015 denial letter, that suit must be filed within two years of the letter, waives the requirement.
In addition to their breach of contract claim in count one, the plaintiffs allege USAA violated CUIPA, specifically General Statutes § 38a-816(6) covering unfair claims settlement practices, by giving a "knowingly false and misleading reason for the denial of coverage" and participating in an "industry wide practice of denying coverage for concrete decay claims as part of its general business practice." Based on that allegation the plaintiffs’ second count asserts a claim under CUTPA, General Statutes § 42a-110a et seq.
USAA filed a motion for summary judgment on June 15, 2018 (Docket Entry #125) to which the plaintiffs responded on July 16, 2018. USAA subsequently withdrew that motion on September 21, 2018, following the appearance of new counsel. USAA filed another motion for summary judgment on January 15, 2019 (Docket Entry #150), which is before the court and to which the plaintiffs responded on February 22, 2019. At oral argument on April 4, 2019, the court agreed to consider both the current opposition filed by the plaintiffs as well as their earlier opposition to USAA’s withdrawn motion due to the overlapping issues.
SUMMARY JUDGMENT STANDARDS
"[S]ummary judgment shall be rendered forthwith if the pleadings, affidavits and any 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." 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." 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." 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." Id. If the policy’s terms are "clear and unambiguous," then that language "must be accorded its natural and ordinary meaning." 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." 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." 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." 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 the 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, 311 Conn. 41-42.
DISCUSSION
I. The Timeliness of the Plaintiffs’ Suit
USAA argues that the plaintiffs’ claim is barred by the suit limitation provision in its policies, which requires that any action on the policy be commenced "within two years after the date of the loss." USAA’s argument is based on the evidence it submitted reflecting an awareness of deteriorating concrete on Mr. Gnann’s part in April 2012, sufficient to cause him to contact USAA about having the basement walls inspected. The question is whether this evidence establishes beyond dispute that the plaintiffs’ loss occurred in April 2012, or earlier, thus requiring the commencement of this action by April 2014 at the latest. The court concludes that the date of loss is a question of fact for the jury and, therefore, so is the applicability of the suit limitation provision.
"Since a provision in a fire insurance policy requiring suit to be brought within [two] year[s] of the loss is a valid contractual obligation, a failure to comply therewith is a defense to an action on the policy unless the provision has been waived or unless there is a valid excuse for nonperformance." Monteiro v. American Home Assurance Co., 177 Conn. 281, 283, 416 A.2d 1189. Although USAA’s policy is not a fire insurance policy, the rule applies with equal force to a homeowner’s policy. Holmes v. Safeco Insurance Company of America, Superior Court, judicial district of New Haven, Docket No. CV-12-6032368-S, (April 16, 2015) (60 Conn.L.Rptr. 268), aff’d 171 Conn.App. 597, 157 A.3d 1147 (2017). Nonperformance may be excused based on impossibility of performance, waiver and estoppel. Vincent v. Mutual Reserved Fund Life Ass’n, 74 Conn. 684, 51 A. 1066 (1902); Bocchino v. Nationwide Mutual Fire Insurance Company, 246 Conn. 378, 716 A.2d 883 (1998) ("any excuse for failing to bring an action within an insurance policy’s contractual period of limitation must have its source in contract law").
Because the suit limitation provision’s requirements are triggered by the "date of the loss," establishing that date is critical to determining compliance with this policy condition. In this case, USAA’s own denial letter creates doubt as to whether the loss occurred in 2012 because the letter identifies "August 25, 2015" as the "date of loss." Setting that aside, however, it remains a question of fact when the loss occurred.
Addressing the time a progressive loss occurs under first-party property insurance, this court has previously held that a manifestation trigger of coverage theory applies such that the "loss" occurs at the time it is discovered by the insured or reasonably should have been discovered by the insured, whichever is earlier. Dino v. Safeco Insurance Company of America, Superior Court, judicial district of Tolland, Docket No. TTD-CV-16-6010428 (June 28, 2018) (66 Conn.L.Rptr. 652). Further, each loss triggers only one policy- the one in effect at the time of the loss. Id.; Roy v. Covenant Insurance Company, Superior Court, judicial district of Tolland, Docket No. TTD-CV-16-6011084-S (2018 WL 2293048). As discussed at length in Dino, the application of a manifestation trigger of coverage theory is based upon both policy language and public policy considerations. In this case the relevant policy language contained in the USAA policies is the same as that included in the policies at issue in Dino . USAA’s policies only cover a first-party property loss "which occurs during the policy period." Thus, for the reasons set forth in Dino, a manifestation trigger of coverage theory applies to USAA’s policies. Ordinarily the date of manifestation, when the loss was discovered by the insured or reasonably should have been discovered, is a question of fact. Dino v. Safeco Insurance Company of America, supra . While USAA understandably refers to its file notes indicating that Mr. Gnann called to report a deteriorating concrete condition in April 2012, this evidence is not dispositive of this jury question. First, the plaintiffs testified it was not until 2015 that they became aware of an abnormal cracking condition in the basement and they had no recollection of the 2012 events reflected in USAA’s file notes. Thus, at most there is a conflict between the plaintiffs’ testimony and USAA’s records. Moreover, USAA’s records cannot establish beyond dispute that the conditions observed in 2012 were the same as those observed in 2015. In particular, there is no evidence in USAA’s 2012 records that one or more of the basement walls had shifted inward at that time, a condition not reported until Mr. Grandpréperformed his inspection in 2016. Thus, it remains a question of fact whether in 2012 the plaintiffs actually discovered, or reasonably should have discovered, the loss for which they sought coverage in 2015.
USAA’s policies provide, "This policy applies only to loss in SECTION I, or ‘bodily injury’ or ‘property damage’ in SECTION II, which occurs during the policy period."
Even if the loss did occur in 2012, the court also finds there is a question of fact whether USAA waived the suit limitation provision by stating in its October 10, 2015 denial letter that if the plaintiffs wished to pursue their claim they were required to "start legal action within two years from the date of this letter." See Town of Andover v. Hartford Acc. & Indem. Co., 153 Comm. 439, 444-45, 217 A.2d 60 (1966); Monteiro v. American Home Assurance Co., supra 177 Conn. 283. The court does not reach the plaintiffs’ other argument that USAA conceded there are questions of fact concerning the date of loss and whether the suit limitation provision was waived in the context of its initial motion for summary judgment.
Because there are genuine issues of material fact concerning the plaintiffs’ compliance with the suit limitation provision in USAA’s policies, the court denies summary judgment based on USAA’s claim that the plaintiffs failed to comply. The court must therefore consider USAA’s argument that the plaintiffs’ claim is clearly outside the scope of coverage provided under the policies’ additional coverage for collapse.
II. USAA’s Definition of "Collapse"
USAA maintains that the collapse coverage is inapplicable to the plaintiffs’ loss because the damage to their basement walls does not meet the definition of "collapse" recited above. Specifically, USAA argues paragraph (a) of the definition does not apply because there has been no "sudden falling or caving in" of the home or part of the home. Paragraph (b) does not apply, according to USAA, because it is undisputed that the house is "fit for its intended use" and there is no "imminent peril of falling or caving in." The plaintiffs focus their arguments on paragraph (a) of the definition, recognizing that even if their loss could satisfy most of paragraph (b), the continued habitability of the home up to the time they replaced the basement walls precludes coverage under that paragraph.
The plaintiffs’ focus on paragraph (a) appears counterintuitive at the outset because it can be inferred from the juxtaposition of these two paragraphs that USAA intended paragraph (b) to broaden the scope of coverage beyond that extended in paragraph (a), while adding qualifying language to limit paragraph (b)’s breadth. While the plaintiffs concede the inapplicability of the arguably broader coverage under paragraph (b), they maintain that the apparently narrower coverage in paragraph (a) applies. The plaintiffs argue that whatever USAA’s intent may have been, the issue must be resolved based on the language USAA chose and, if the language is reasonably susceptible to an interpretation favoring coverage, the court must apply that interpretation.
There are two issues that arise concerning the proper interpretation of "sudden falling down or caving in" in this context. First, if it is accepted that "caving in" must have a different meaning than "falling," what is that meaning? Second, assuming there has been a falling down or caving in of part of the plaintiffs’ home, was it "sudden?" The parties offer varying dictionary definitions to support their interpretation of "sudden" and "caving in" and USAA particularly offers some deep grammatical analysis emphasizing the gerundial nature of the term "caving in" and the importance of avoiding the "iterative application of synonyms" that can distort the meaning of a word. The court has attempted to give these observations due consideration.
A. "Caving In"
It is, as the plaintiffs argue, incumbent upon the court to give a separate meaning to the terms "falling" and "caving in" if possible. Lexington Ins. Co. v. Lexington Healthcare Group, Inc., supra, 311 Conn. 54 ("Typically, when different terms are employed within the same writing, different meanings are intended"). On the other hand, "[w]hen interpreting an insurance policy, we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result ..." Id., quoting Johnson v. Connecticut Ins. Guaranty Ass’n, 302 Conn. 639, 643, 31 A.3d 1004 (2011). Thus, when interpreting paragraph (a) of the definition of "collapse" in USAA’s policy, it is important not to set aside and ignore paragraph (b). It is also appropriate to consult dictionary definitions, as the parties have done, in the effort to resolve the meaning of a term. Lexington Ins. Co. v. Lexington Healthcare Group, Inc., supra, 311 Conn. 42, n.8, citing Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 539, 791 A.2d 489 (2002).
The court finds that "caving in" is susceptible to a meaning other than "falling." USAA has not offered an interpretation of "caving in" that distinguishes that term from "falling." The plaintiffs, on the other hand, rely upon a definition of "cave-in" in its noun form included in the Oxford American Dictionary and Thesaurus, arguing that the term means "yield" or "submit to pressure." USAA correctly points out, however, that it is the meaning of "cave" as a verb that is at the root of this issue. USAA has variously cited the Collins English Dictionary, the Random House Unabridged Dictionary, Webster’s New World College Dictionary and the Oxford American Dictionary and Thesaurus in response to the dictionary definition relied upon by the plaintiffs. Most recently, USAA cites the definition of "cave in" as a verb form found in the latter source, i.e., "give way or collapse," which results in the unhelpful tautology that "collapse" means "collapse." It appears to the court, to the extent that a dictionary is going to help resolve the issue, it is the definition of "caving in," a gerund, that is most directly applicable, not the noun "cave-in." Webster’s Third New International Dictionary (1993) defines "cave" in its verb form, usually paired with "in," as follows: "to fall in or down esp[ecially] from being undermined." This definition is marginally helpful, despite its substantial reliance on the word "fall."
Few other courts have attempted to discern the meaning of "caving in" contrasted with "falling" in the context of an insurance policy’s definition of "collapse." The United States District Court for the District of Connecticut has construed the same policy language at issue here, in a policy issued by USAA, in the context of a crumbling concrete case. Sirois v. USAA Casualty Ins. Co., 342 F.Sup.3d 235 (D.Conn. 2018). In Sirois, the court held that "caving in" is ambiguous in this context because the plaintiffs’ proffered definition, "yield" or "submit to pressure," is reasonable. Id., 242. The court held that Mr. Grandpré ’s testimony in that case- that the concrete was yielding to the internal pressure resulting from the chemical reaction occurring within the concrete and that the process had caused a substantial impairment to the structural integrity of the home- created an issue of fact as to whether the home had suffered a caving in. Id., 245-46. USAA understandably challenges the Sirois court’s reliance on the same noun form definition relied upon the plaintiffs here, but USAA’s critique also does not offer an alternative meaning of "caving in" that distinguishes it from "falling."
In Gulino v. Economy Fire and Cas. Co., 971 N.E.2d 522 (Ill.App. 2012), the court held that the term "caving in" "connotes the undermining of a structure that can be something less than a complete falling down." Id., 528, relying on the definition provided by Webster’s Third New International Dictionary (1981) ("to fall in or down esp[ecially] from being undermined"). In Gulino, the basement ceiling of a home had sagged under the weight of thousands of pounds of hoarded paper, newspapers and magazines stored on the first floor of the house. The "floor joists were bending and bowing and had been pulled off their beam bearings." Id., 526. This resulted in damage to the heating system and further consequential damage to the home. The court reversed the entry of summary judgment, concluding that the evidence was sufficient to "support[ ] the contention that a portion of the basement ceiling did cave in." Id., 528.
In Ciampa v. USAA Property and Cas. Ins. Co., 910 N.E.2d 974 (2009), a trial court denied summary judgment on a collapse claim based on the same policy language at issue in this case. After a bench trial, however, the court found that no collapse had occurred. On appeal, the court said, "There is no evidence from which a reasonable fact finder could conclude that any part of the plaintiff’s home had fallen or caved in ..." Id. Aside from the apparent inconsistency between the summary judgment ruling and this statement by the Appeals Court, the case illustrates the difficulty of distinguishing between "falling" and "caving in." Even the closest applicable definition of "caving in" focuses on "fall[ing] in or down." In Ciampa, the failure to install proper flashing when the plaintiff’s home was originally constructed allowed water to penetrate and rot wooden structural elements, causing the roof to sag. Extensive repairs to the roof were required, and they were performed while the plaintiff continued to occupy the home. While a sagging basement ceiling in Gulino was enough to constitute "caving in," a sagging roof was deemed insufficient in Ciampa. See also Community Garage, Inc. v. Auto-Owners Ins. Co., Michigan Court of Appeals, Docket No. 339300 (June 19, 2018) (2018 WL 3039885) (distinguishing "sagging" from "caving in").
In this case there is evidence that loose pieces of concrete were falling or were easily removed from the basement walls. Mr. Grandpréobserved "bulging, bowing and shifting" of the walls and has testified these conditions "are evidence that the concrete basement walls have failed and have begun to move inward due to the lateral pressure of the soil outside the home." The strength of the walls has been undermined by the chemical reaction taking place inside the walls, sufficiently so that the walls are "bowing and shifting" or "giving way," to cite USAA’s favored dictionary definition or, conceivably, "sagging" inward. The court cannot conclude, as a matter of law, that the conditions observed by Mr. Grandprédo not constitute a "caving in." If the walls must completely give way to the earth outside them in order to constitute "caving in," there would be no material difference between "caving in" and "falling." While the court in Sirois relied upon a dictionary definition that may have been grammatically inapt, it was correct in its conclusion that the need to distinguish "caving in" from "falling" renders "caving in" ambiguous. While it may be reasonable to differentiate "sagging" from "caving in" as some courts have, this court concludes that it is also reasonable to equate the two in this context, where the term must be distinguished from "falling" in order to give it meaning. Gulino v. Economy Fire and Cas. Co., supra . Whether the plaintiff’s basement walls had been undermined and given way to the point that they were caving in, as distinguished from falling, is a question of fact.
USAA vigorously contests Mr. Grandpré ’s conclusion that the bowing he observed supports the conclusion that the entire wall is bending inward, as opposed to just the interior portion of the wall expanding inward. USAA will have an opportunity to test the reliability of Mr. Grandpré ’s opinions and conclusions prior to and during the trial. The court has not taken up USAA’s motion in limine filed the day before oral argument on its motion for summary judgment.
The court also concludes that the juxtaposition of paragraph (a) in USAA’s definition of "collapse" with paragraph (b) does not resolve the ambiguity in (a). In its original summary judgment motion USAA argued that the plaintiffs’ interpretation "sudden falling or caving in" as it appears in paragraph (a) would render paragraph (b) meaningless. Specifically, USAA argued it is plain that paragraph (a) contemplates a more catastrophic event than paragraph (b) does. Paragraph (b) covers "a sudden breaking apart or deformation," something short of a catastrophe, when it creates "an imminent peril of falling or caving in." A "sudden breaking apart or deformation" that is less than a "caving in," would not be covered under (b), however, unless the building, or part of it, "is not fit for its intended use." Paragraph (a) includes no uninhabitability condition, arguably reflecting an intent underlying "falling or caving in" that presumes a catastrophic event. This is a reasonable and logical interpretation of the policy’s definition of "collapse." Under this construction, it would be aberrant for a less catastrophic event to be outside the scope of (b), because the building is still habitable, but within the scope of (a), which is intended to provide a scope of coverage that is narrower than (b).
Nevertheless, while it may have been USAA’s intent that paragraph (a) would apply only to the catastrophic destruction of a building or part of a building, it is still possible to give meaning to paragraph (b) without confining paragraph (a) to catastrophic events. A "sudden breaking apart or deformation" of a building or part of a building does not necessarily implicate a loss of function and shifting of a structural member, as is suggested by the inward movement of the plaintiffs’ basement walls described by Mr. Grandpré . Under those circumstances, paragraph (b) avoids extending coverage unless such movement is imminent and the building or part of it is not habitable. While this may not be what USAA intended, it is a reasonable interpretation of the language that reserves some operational significance to paragraph (b) without reducing "caving in" to a mere synonym of "falling" in paragraph (a). Sirois v. USAA Casualty Ins. Co., supra, 342 F.Sup.3d 242-43.
B. "Sudden"
Even if the ambiguity that arises from the pairing of "falling" with "caving in" is construed in favor of coverage, the policy only provides coverage for a "sudden falling or caving in." (Emphasis added.) USAA maintains that the word "sudden" clearly has a temporal meaning in this context, such that the gradual deterioration taking place in the concrete at the plaintiffs’ home is not covered. The plaintiffs argue that the word "sudden" in this context means "unexpected," citing Verdon v. Transamerica Ins. Co., 187 Conn. 363, 446 A.2d 3 (1982), or at least is ambiguous because assigning a temporal meaning to "sudden" in this context is inconsistent with some of the covered perils that occur gradually but can be the cause of a covered collapse. USAA responds that assigning the meaning "unexpected" to the word "sudden" would render the term superfluous because all property insurance losses are unexpected under the doctrine of fortuity. The court agrees with USAA.
USAA’s use of the term "sudden" must be viewed in the context of Connecticut case law construing similar language in insurance policies. In 2002, the Connecticut Supreme Court construed the word "sudden" within the phrase "sudden and accidental" as used in the context of an exception to the pollution exclusion included in a liability insurance policy. Buell v. Greater New York Mut. Ins. Co., 259 Conn. 527, 791 A.2d 489 (2002). The court recognized that "the word sudden can be used to describe the unexpected nature, as well as the abrupt onset, of the event being described." Id., 540. The court further observed that "the word may connote either state- or even a combination of both an unexpected and a temporally abrupt quality- in a given context ..." Id. The court had previously held in Verdon that [a]lthough ‘sudden’ may also imply quickness, its primary meaning is unexpected, ‘happening without previous notice or very brief notice.’" Verdon v. Transamerica Ins. Co., supra, 187 Conn. 368, citing Webster, Third New International Dictionary. In Buell, the court distinguished Verdon, stating that "[i]n the context of these policies, it makes sense to include, within the definition of sudden, the temporally abrupt quality of the word. This becomes evident through the juxtaposition of the word ‘sudden’ with the word ‘accidental’ in the exception to the pollution exclusion." Buell v. Greater New York Mut. Ins. Co., supra, 259 Conn. 540. "Reading sudden in its context, i.e., joined by the word and to 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. To define sudden as meaning only unexpected or unintended, and therefore as a mere restatement of accidental, would render the suddenness requirement mere surplusage." Id., 540-41, 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).
While the juxtaposition of "sudden" and "accidental" certainly facilitated the court’s conclusion in Buell, it was not the only basis upon which the court distinguished Verdon and reached its conclusion that "sudden" should be ascribed a temporal meaning. It also believed its temporal interpretation of the word "ma[de] sense within the larger context of these liability policies." Id., 543. Explaining that context, the court pointed out that the pollution exclusion was intended to "exclude damage from persistent pollution from the policy’s expansive basic coverage of ‘occurrence’ which includes ‘continuous or repeated exposure to conditions.’ ... The ‘sudden and accidental’ exception was added, it seems to us, to allow coverage for such discharges, not, as the plaintiff would have it, for unexpected, continuous or repeated events, but if they happen to occur abruptly." Id., 544.
Because the court’s decision in Buell does not rest solely upon the appearance of the word "accidental" in connection with the word "sudden," this court disagrees with the analysis in Sirois v. USAA Casualty Ins. Co., United States District Court, Docket No. 3:16-cv-1172 (MPS) (D.Conn. August 29, 2017), concluding that the word "sudden" means "unexpected" in the context of the policy language at issue here.
The court in Buell also limited Verdon to its context. It was a convoluted route that led the court to consider the meaning of "sudden" in Verdon, as the court was attempting to deal tangentially with the reasoning employed by the trial court decision under review. In Verdon, the court considered the meaning of the word "casualty" as it was used in the direct action statute (General Statutes § 38a-321) to refer back to that statute’s prior use of the phrase "property damage." The question was whether a judgment creditor could pursue a direct action against an insurer to enforce a judgment against its insured arising out of the diminution in value of an estate caused by legal malpractice. The insurer argued the judgment was outside the direct action statute because it did not involve a "casualty." The court construed the word "sudden" as it appeared in a dictionary definition of the word "casualty" relied upon by the trial court, a definition the supreme court believed was not the "standard definition appropriate to the context of [the] case." Verdon v. Transamerica Ins. Co., supra, 187 Conn. 368. The court nevertheless proceeded to consider the meaning of the word "sudden" in this context. The court declined to attribute a temporal meaning to the word "sudden." While acknowledging that "sudden" does have a temporal connotation, the court held it nevertheless made no sense to limit the scope of an insurer’s liability for judgments against its insured under the direct action statute to temporally abrupt property damage.
The context within which the word "sudden" was considered in Verdon was far from the context within which the court considered the word in Buell. The word was considered by the court in Verdon because it appeared in an inapplicable dictionary definition relied upon by the trial court. The temporal meaning of "sudden" twisted the meaning of "property damage" in a fashion that made no sense in the context of the direct action statute. It was only in that context that the court eschewed the temporal meaning of the word. As it concerns this case, the Buell court’s consideration of the term is far more pertinent. "[T]he word ‘sudden’ is not ambiguous simply because the dictionary includes within its definitions of the word, that it may, in certain circumstances, include a sense that the event being described occurred unexpectedly. [T]he existence of more than one dictionary definition is not the sine qua non of ambiguity. If it were, few words would be unambiguous ... The important question before us is the meaning of the word as used in these policies." Buell v. Greater New York Mut. Ins. Co., supra, 259 Conn. 546.
The court agrees with USAA that there is a presumption of unexpectedness underlying the policy’s property insurance coverage that would render the word "sudden" superfluous if it were understood to mean "unexpected" as it appears in the definition of "collapse." Section I of USAA’s policy provides all risk coverage bounded by the doctrine of fortuity, which excludes coverage for losses "the parties knew of or expected." City of Burlington v. Indemnity Ins. Co. of North America, 332 F.3d 38, 48 (2nd Cir. 2003); see Brown v. State Farm Fire & Cas. Co., 150 Conn.App. 405, 413-14, 90 A.3d 1054 (2014) ("It is a fundamental requirement in insurance law that the insurer will not pay for a loss unless the loss is ‘fortuitous, ’ meaning that the loss must be accidental in some sense"). The additional coverage for collapse plays a role in USAA’s policy that is analogous to the role played by the sudden and accidental exception to the pollution exclusion in Buell . The definition of collapse is not intended to reinstate coverage for "falling or caving in" excluded in Section I provided it is unexpected, just as the sudden and accidental exception was not intended to reinstate coverage for property damage caused by gradual pollution provided it was unexpected. The exclusion for collapse in Section I would be unnecessary to eliminate coverage for an expected falling or caving in, if the doctrine of fortuity is accounted for when interpreting the policy. Instead, falling or caving in is covered under the additional coverage for collapse provided it is a "sudden," i.e., quick or abrupt event, not just an unexpected one.
Interpreting a "sudden" event as being temporally abrupt and not just unexpected does not render the coverage for collapse ambiguous or illusory as the plaintiffs maintain. The plaintiffs point out that certain perils expressly recognized within the collapse coverage as potential causes of collapse are inherently gradual in nature. Hidden decay, for example, or defective materials used in construction may cause a gradual loss of strength. It is necessary, however, to distinguish the covered loss from its cause. Valls v. Allstate Ins. Co., 919 F.3d 739, 745 (2nd Cir. 2019); Agosti v. Merrimack Mut. Fire Ins. Co., 279 F.Sup.3d 370, 378 (D.Conn. 2017). A gradually occurring peril may weaken a structure to the point of sudden collapse. A sudden collapse after years of hidden decay would be covered, even though the decay itself was gradual in nature.
III. Application of the Collapse Definition to the Facts
Based on the above discussion of the definition of "collapse" in USAA’s policies, the court determines there is a genuine issue of material fact whether the damage described by Mr. Grandpréconstitutes a caving in of the plaintiffs’ basement walls. In particular, Mr. Grandpréstates that, at the time of his inspection, the basement walls "ha[d] begun to move inward due to the lateral pressure of the soil outside the home." USAA disputes this, but to prevail on this point either Mr. Grandpré ’s testimony must be precluded or the jury must concur with USAA’s expert witness who challenges Mr. Grandpré ’s methodology, analysis and conclusions. The court, however, cannot weigh the merits of the competing opinions of experts on a motion for summary judgment. Whether the plaintiffs’ basement walls had been undermined and given way to the point that they were caving in, as distinguished from falling, is a question for the jury.
The plaintiffs also maintain there is a genuine issue of material fact whether the alleged caving in was sudden, even when "sudden" is understood to have a temporal meaning. Here, the distinction between a loss and its cause favors the plaintiffs. The fact that the deteriorating concrete causes a gradual loss of strength in the basement walls does not mean a sudden caving in did not occur. USAA has not established the absence of a question of fact as to whether the shifting Mr. Grandprérefers to occurred gradually. The plaintiffs, who will bear the burden of proof on this issue at trial, do not have the obligation to prove it on summary judgment. They point out that USAA’s expert witness offered no conclusive opinion on this issue and they rely on Mr. Grandpré ’s testimony, that the inward movement of the walls could have occurred in one day, to establish there is evidence to support their position.
The court concludes there are genuine issues of material fact involved in determining whether the plaintiffs’ basement walls have experienced a "sudden falling or caving in" so as to satisfy the definition of "collapse" in USAA’s policies. USAA’s motion for summary judgment on the breach of contract claim is denied.
IV. CUTPA/CUIPA
USAA has also moved for summary judgment on count two of the plaintiffs’ complaint asserting a CUTPA/CUIPA claim based on an alleged unfair claims settlement practice in violation of General Statutes § 38a-816(6). The plaintiffs specifically allege that USAA violated § 38a-816(6)(F) by "not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear." USAA first argues that the plaintiffs have no viable CUTPA/CUIPA claim because there is no coverage. Because the court has denied summary judgment on the plaintiffs’ breach of contract claim, however, this is not a viable ground upon which to enter summary judgment on the CUTPA/CUIPA claim.
USAA argues further, however, that even if it does not prevail on the breach of contract claim, it still is entitled to summary judgment on the CUTPA/CUIPA claim because its coverage position is at least "fairly debatable." This court has previously addressed similar arguments and concluded that the issue "is not purely a legal one and, at best, a court’s view of the reasonableness of an insurer’s coverage position can only extend as far as the legal issues go. Beyond that, the reasonableness of an insurer’s coverage position in a given case, and in similar cases, is a question of fact or a mixed question of fact and law." Dino v. Safeco Insurance Company of America, supra . The question is not only whether the insurer is interpreting its policy reasonably, but also whether the facts of the case make liability "reasonably clear" such that the insurer should have attempted to effectuate settlement. General Statutes § 38a-816(6)(F). Because this is a mixed question of law and fact, and the facts concerning the condition of the plaintiffs’ basement walls are genuinely disputed, summary judgment cannot be granted on this ground.
In order to establish an unfair claims settlement practice under CUIPA, the plaintiffs must establish that USAA has engaged in the conduct they complain of with such frequency as to establish a general business practice. Lees v. Middlesex Insurance Co., 229 Conn. 842, 850, 643 A.2d 1242 (1994). USAA has not sought summary judgment on the ground that the plaintiffs cannot satisfy this essential element of their CUTPA/CUIPA claim.
CONCLUSION
It is for a jury to determine whether the plaintiffs’ basement walls experienced a sudden falling or caving in, consistent with the court’s construction of the definition of "collapse," and whether the plaintiffs complied with the suit limitation provision or, alternatively, USAA waived that condition. Further, summary judgment for USAA on the plaintiffs’ CUTPA/CUIPA claim is not available because determining the reasonableness of USAA’s denial of coverage involves a consideration of disputed issues of fact. For these reasons, USAA’s motion for summary judgment is denied.