Opinion
TTDCV176012557S
06-24-2019
Dana J. WOODS et al. v. TWIN CITY FIRE INSURANCE COMPANY et al.
UNPUBLISHED OPINION
OPINION
Farley, J.
In this insurance dispute involving crumbling concrete basement walls at the home of the plaintiffs, Dana and Jean Woods, the defendant Amica Mutual Insurance Company (Amica), has moved for summary judgment on counts four, five and six of the plaintiffs’ amended complaint. The fourth count seeks a declaratory judgment requiring Amica to provide coverage for the damage to the plaintiffs’ home. The fifth count alleges breach of contract based on Amica’s denial of coverage for the damage. The sixth 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"). Amica, which provided homeowners insurance coverage to the plaintiff’s from November 30, 2000 through the present, maintains that the plaintiffs’ alleged loss did not occur prior to November 30, 2006 and so those policies are not triggered. Amica also claims that the plaintiffs’ loss is outside the scope of coverage afforded under its policies in effect after November 30, 2006. Amica asserts further that the plaintiffs have no viable claim for violation of CUTPA/CUIPA because there is no coverage and, alternatively, there is no evidence to satisfy the general business practice requirement applicable to the plaintiffs’ CUTPA/CUIPA claim.
The court previously entered summary judgment in favor of the other defendant Twin City Fire Insurance Company. (Docket Entry, #117.20.)
There is a dispute between the parties in this case over the applicable policy language. The plaintiffs claim their loss constitutes a collapse under all of Amica’s policies, but the terms of Amica’s collapse coverage changed in the 2006-2007 policy year and again in the 2012-2013 policy year. Prior court decisions have consistently held that the terms of the collapse coverage contained in Amica’s policies in effect up to November 30, 2006 raise questions of fact concerning coverage for this type of loss, whereas the language in the later policies generally has been held to preclude coverage. The plaintiffs alternatively maintain, however, that Amica’s attempt to change the terms of the collapse coverage in the 2006-2007 policy year and succeeding policy periods was ineffective due to Amica’s failure to give the plaintiffs proper notice of the changes in accordance with General Statutes § 38a-323 governing the nonrenewal of insurance policies. Amica maintains that the statute as written in 2006 and 2012, when it made changes to the collapse coverage, did not require notice of a change in policy language because a change in the scope of coverage is not a "nonrenewal" under the statute. Amica further maintains that even if the statute were construed to require such notice, it still would not apply because the 2006 and 2012 changes in the collapse coverage were not substantive, but rather were clarifying, and because it did provide notice of the changes in the collapse coverage to the plaintiffs.
The court concludes that § 38a-323 as it stood in 2006 and 2012 did require sixty days’ advance notice of substantial changes in the scope of coverage, and the record in this case fails to conclusively resolve questions concerning Amica’s compliance with the statute, as well as the consequences of noncompliance. Even though the court concludes below that Amica’s 2015 2016 policy is the applicable policy, the court is unable to resolve on summary judgment whether the earlier collapse coverage language must be deemed a part of that policy and, therefore, must deny Amica’s motion for summary judgment as to counts four and five.
The court is able to resolve the plaintiffs’ CUTPA/CUIPA claim on summary judgment because Amica’s denial of coverage under the policy language as written in the post-2012 policies was reasonable as a matter of law and the plaintiffs’ CUTPA/CUIPA claim is not based on Amica’s failure to comply with § 38a-323. The court therefore denies Amica’s motion for summary judgment on counts four and five, but grants the motion as to count six.
FACTS
The plaintiffs built their home in Willington, Connecticut in 1994 and began insuring it with Amica on November 30, 2000. Between 2000 and 2006 the plaintiffs finished the basement leaving only the basement walls in the utility and storage spaces visible. The plaintiffs observed some cracking in their basement walls as early as 2013 or 2014, but did not believe they were cause for concern. In June 2016, however, having heard news reports about deteriorating concrete basements in northeast Connecticut they inspected their basement walls and noticed the cracks had gotten wider and increased in number. Pieces of concrete were falling and the structure had shifted enough to cause difficulty opening the basement door. Other parts of the home appear to the plaintiffs to have been affected as well, based on cracks in the drywall throughout the upper portions of the house. The damage to the home has not prevented the plaintiffs from continuing to occupy the home.
After observing this damage in June 2016, the plaintiffs sought coverage from the insurance companies who had covered the property. They filed their claim with Amica in May of 2017 and commenced this lawsuit on June 2, 2017. At that time the plaintiffs sought a declaratory judgment against Amica, declaring that Amica is obligated to cover their loss. The plaintiffs allege that Amica denied their claim on December 19, 2017 and they subsequently amended their complaint to add the breach of contract and CUTPA/CUIPA claims.
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 Amica. Amica changed the language of the collapse coverage with the policy that became effective on November 30, 2006 and changed the language again in the policy effective on November 30, 2012. There is a dispute in this case whether Amica made those changes in accordance with Connecticut law.
The Amica policies issued from November 30, 2000 until November 30, 2006 provided collapse coverage as follows:
8. Collapse. We insure for direct physical loss to covered property involving collapse of a building or any part of a building caused only by one or more of the following:
a. Perils Insured Against in COVERAGE C- PERSONAL PROPERTY. These perils apply to covered buildings and personal property for loss insured by this additional coverage:
b. Hidden decay;
c. Hidden insect or vermin damage;
d. Weight of contents, equipment, animals or people;
e. Weight of rain which collects on a roof; or
f. Use of defective material or methods in construction, remodeling or renovation;
Loss to an awning, fence, patio, pavement, 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., e., and f. unless the loss is a direct result of the collapse of a building.
Collapse does not include settling, cracking, shrinking, bulging or expansion.
As referenced above, the policy effective November 30, 2006 changed the collapse provision. Beginning then and through the 2011-2012 policy Amica provided coverage for collapse as follows: "We insure for direct physical loss to covered property involving collapse of a building or any part of a building if such collapse was caused by ... (2) Decay, of a building or any part of a building, that is hidden from view, unless the presence of such decay is known to an ‘insured’ prior to collapse; ... or (6) Use of defective materials or methods in construction, remodeling or renovation." The policies include a definition of "collapse" with respect to this coverage.
(1) Collapse means an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its current intended purpose.
(2) A building or any part of a building that is in danger of falling down or caving in is not considered to be in a state of collapse.
(3) A part of a building that is standing is not considered to be in a state of collapse even if it has separated from another part of the building.
(4) A building or any part of a building that is standing is not considered to be in a state of collapse even if it shows evidence of cracking, bulging, sagging; bending, leaning, settling, shrinkage or expansion.
These policies also provide that "[l]oss to a[ ] ... foundation [or] retaining wall ... is not included under [the collapse coverage] unless the loss is a direct result of the collapse of a building or any part of a building."
In 2012 Amica changed the collapse coverage again, but not as extensively as it had in 2006. It retained most of the language contained in the 2006-2012 policies, but stated that "The coverage provided under this Additional Coverage- Collapse applies only to an abrupt collapse" and went on to define "abrupt collapse" as "an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose."
The plaintiffs argue that all of the policies issued by Amica are triggered in this case under the "continuous trigger theory" they advocate. Alternatively, the plaintiffs argue the language in all of Amica’s policies must be deemed to be that which was contained in the 2000 to 2006 policies because Amica did not properly notify the plaintiffs of the change in the collapse coverage initiated in the 2006 policy and again in 2012. Finally, they maintain the language in the 2006 to 2018 policies is ambiguous in any event and must be construed in favor of coverage.
In addition to the declaration of coverage they seek in count four and their breach of contract claim in count five, the plaintiffs allege Amica 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’ third count asserts a claim under CUTPA, General Statutes § 42a-110a et seq.
THE PARTIES’ CLAIMS ON SUMMARY JUDGMENT
Amica has moved for summary judgment arguing that there is no coverage under its Policies in effect from 2012 to 2018 and, consequently, no liability under CUTPA/CUIPA. Amica maintains that only the 2012-2017 policies are potentially triggered because the alleged loss became manifest during that period. As to counts four and five Amica argues that the 2012-2017 policies unambiguously preclude coverage for the damage to the plaintiffs’ basement walls because there has not been an "abrupt falling down or caving in" of their home, or part of their home, the house is still standing and it has not been rendered uninhabitable. Further, in the absence of coverage the plaintiffs cannot establish an unfair claims settlement practice under CUIPA. Amica alternatively argues that, even if there is or may be coverage, it has no liability under CUTPA/CUIPA because coverage is not "reasonably clear" as a matter of law and because there is insufficient evidence of a general business practice, as is required to establish an unfair claims settlement practice under CUIPA.
In response to Amica’s motion, the plaintiffs argue that Amica has failed to carry its burden on summary judgment for several reasons. The plaintiffs argue there is coverage under any of Amica’s policies, including the 2012-2018 policies, because the definition of "collapse" in those policies is ambiguous. Further, they maintain Amica must negate coverage under all of their policies, not just the 2012-2017 policies. They argue that all of the policies are implicated under a continuous trigger theory and, further, that Amica did not succeed in changing the policy language in 2006 and 2012 because it failed to comply with General Statutes § 38a-323 requiring insurers to send a notice of nonrenewal sixty days in advance of an existing policy’s expiration, by registered or certified mail or evidenced by a certificate of mailing, when an insurer intends not to renew the existing policy. The plaintiffs rely on a bulletin issued by the Insurance Commissioner first in 2004 and again in 2009 expressing the Commissioner’s view that the statute requires an insurer to send a nonrenewal notice or a "conditional renewal notice" sixty days in advance of a policy’s expiration date whenever an insurer proposes the renewal of coverage "under terms or conditions less favorable than previously provided."
The policy materials submitted with Amica’s motion for summary judgment include copies of notices prepared in connection with the 2006-2007 policy, as well as the 2012-2013 policy, describing the changes to the collapse coverage. The record does not include evidence concerning whether or when the notices were sent, nor any evidence of how they were sent. The plaintiffs testified at their depositions that they do not recall receiving such notices. They maintain that Amica’s failure to comply with the statute means the collapse coverage in the later policies must be deemed to be written as it had been in the 2000-2006 policies.
As to the CUTPA/CUIPA count, the plaintiffs do not contest the proposition that a lack of coverage would negate their CUTPA/CUIPA claim based on alleged unfair claims settlement practices. They dispute, however, Amica’s argument that coverage was not "reasonably clear" when Amica denied coverage and also maintain that Amica has failed to sustain its burden on summary judgment to negate the allegation of a general business practice.
The court initially heard the parties at oral argument on January 7, 2019 and requested supplemental briefing on the issues raised by § 38a-323. Amica filed a supplemental brief on January 22, 2019 and the court accepted an amicus brief from Twin City Insurance Company, which had previously prevailed on its motion for summary judgment in this case. The plaintiffs filed a supplemental brief on February 13, 2019 and the court heard additional arguments on February 26, 2019.
Based on the written submissions and the arguments of the parties, the court concludes that: only the 2012-2017 policies are potentially triggered by the plaintiffs’ claim; the collapse coverage in those policies is not ambiguous as applied to the facts of this case; and the abrupt collapse provision would preclude coverage for the plaintiffs’ claim. The court concludes further, however, that § 38a-323 required Amica to provide sixty days’ advance notice of the changes to the scope of coverage in the 2006-2007 proposed renewal policy and that, although there is some evidence that Amica did provide such notice regarding the proposed changes in 2006 and again in 2012, the record on summary judgment does not eliminate all genuine issues of material fact concerning Amica’s compliance with the requirements of the statute. There are unresolved questions regarding Amica’s compliance with the statute and whether the change in the scope of coverage initiated in 2006 and 2012 was effective as to the 2012-2017 policies. If not, the earlier policy language may apply and, consistent with this court’s prior decisions, questions of fact concerning the applicability of that coverage preclude summary judgment for Amica on counts four and five. Finally, the court concludes there are no issues of material fact related to the plaintiffs’ CUTPA/CUIPA claims and, therefore, Amica is entitled to summary judgment on that claim.
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 Assn., 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, 3738; 84 A.3d 1167 (2014), quoting Johnson v. Connecticut Ins. Guaranty Assn., 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
This court has previously addressed many of the issues raised by Amica’s motion. This court has previously held that in the case of a progressive first party property loss, where a covered event may have resulted from hidden decay or the use of defective material or methods in construction, the applicable trigger of coverage theory is the manifestation theory as articulated in Prudential-LMI Commercial Ins. v. Superior Court, 51 Cal.3d 674, 798 P.2d 1230, 274 Cal.Rptr. 387 (1990). Dino v. Safeco Ins. Co. of America, Superior Court, judicial district of Tolland, Docket No. CV-16-6010428-S (June 28, 2018, Farley, J.) (66 Conn.L.Rptr. 652). This court has also construed the policy language contained in all three versions of the collapse coverage contained in Amica’s policies. Id.; Perracchio v. Homesite Ins. Co., Superior Court, judicial district of Tolland, Docket No. CV-16-6010324-S (March 6, 2018, Farley, J.) ; Heim v. New London County Mutual Ins. Co., Superior Court, judicial district of Tolland, Docket No. CV-16-6010026-S (August 8, 2018, Farley, J.). Under the 2000-2006 policy language, this court and many others have denied summary judgment where collapse coverage is sought for damage to basement walls associated with the deteriorating concrete problem confronting many homeowners in this region. Dino v. Safeco Ins. Co. of America, supra. Under the new language in the 2006-2018 policies, however, this court and many others have granted summary judgment to insurers defending these claims. The collapse coverage included in the later policies is not applicable because the plaintiffs’ house has not fallen down or caved in "with the result that the building or part of the building cannot be occupied for its [current] intended purpose." The plaintiffs have continued to occupy the house from 2016, when they discovered the loss, until the present time. The basement walls may continue to deteriorate until they structurally fail, as the plaintiffs allege, but under the definition of "collapse," a building in that condition "is not considered to be in a state of collapse." The building is still standing and the definition of "collapse" states a building that is still standing "is not considered to be in a state of collapse even if it shows evidence of cracking, bulging, sagging, bending, leaning, settling, shrinkage or expansion." Moreover, aside from the plaintiffs’ continued occupancy of the home, the coverage for collapse covers "abrupt collapse." It is undisputed that the deterioration taking place in the plaintiff’s basement walls is a gradual, progressive process that would take many years to result in a complete falling down of the building. See Perracchio v. Homesite Ins. Co., supra; Fortin v. Ins. Co. of the State of Pennsylvania, Superior Court, judicial district of Tolland, Docket No. CV-17-6011987-S (April 19, 2018, Farley, J.).
The term "collapse" is ambiguous when it is not defined in an insurance policy, such as in the earlier Amica policies, and this court is bound by the court’s conclusion in Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 532 A.2d 1297 (1987) where the court, finding the undefined term "collapse" ambiguous, adopted a default definition of the term to include "any substantial impairment of structural integrity of a building." Id., 252. Whether the condition of the plaintiffs’ basement walls constitutes a substantial impairment of structural integrity is a question of fact. Dino v. Safeco Ins. Co. of America, supra. ---------
Because there is no coverage under the 2006-2018 policies, in order to resolve Amica’s motion in this case, the court must determine whether there is any genuine issue of material fact concerning when the plaintiffs’ loss occurred. If the court concludes that the plaintiffs’ claim triggers the later policies, containing the "abrupt collapse" coverage, the court must address the parties’ dispute over whether Amica failed to comply with § 38a-323 and whether, as a consequence, the language in the 2000-2006 policies may be applicable.
I. APPLICATION OF THE MANIFESTATION TRIGGER OF COVERAGE
Amica’s policies only cover a "loss which occurs during the policy period." As this court resolved in Dino, applying a manifestation theory of coverage, a loss occurs when it becomes "known or reasonably discoverable." Dino v. Safeco Ins. Co. of America, supra . In Dino, this court disagreed with the argument advanced by the plaintiffs in this case that a continuous trigger of coverage theory applies, thus implicating all of Amica’s policies. The court maintains the same view here, that the proper trigger of coverage theory is the manifestation theory. It is the plaintiff’s burden to establish whether a policy is triggered by a loss which has occurred during the policy period. If there is evidence from which a fact finder may infer that a particular policy is triggered under a manifestation theory, however, summary judgment on the basis of when the loss occurred is inappropriate as to that policy. Each policy is a separate contract and, under the manifestation trigger of coverage theory, only one policy is triggered by a single loss. Roy v. Covenant Insurance Company, Superior Court, judicial district of Tolland, Docket No. TTD-CV-16-6011084-S (April 27, 2018, Farley, J.).
In this case, the plaintiffs do not dispute that their loss "became manifest in [ ] June of 2016," and thus cannot dispute that Amica’s 2015-2016 policy, which contains the third and latest version of the collapse coverage, applies under a manifestation trigger of coverage theory. The plaintiffs argue, however, that the language included in that policy never properly took effect because Arnica did not comply with the notice requirements set forth in § 38a-323.
II. AMICA’S NOTICE OF THE CHANGE IN THE COLLAPSE COVERAGE
The plaintiffs argue that the change in the collapse coverage initiated by Amica in the. 2006-2007 policy issued to the plaintiffs failed to take effect because Amica did not follow the requirements of § 38a-323 and did not rectify that problem in 2012 when the collapse coverage language changed again. Amica argues that § 38a-323 is inapplicable to the changes it made to the collapse coverage in 2006 and 2012 because the statute as it stood in 2006 and 2012 only required a notice of nonrenewal when an insurer decided not to cover a subject property at all, not when the insurer was merely making changes to the terms of the coverage. This court has held in another case decided today, however, that § 38a-323 in its 2006 and 2012 form did require sixty days’ advance notice when an insurer proposed to make substantial changes to the scope of coverage contained in an existing policy while preparing to issue a new policy. Lemieux v. New London County Mutual Insurance Co., Superior Court, judicial district of Tolland, Docket No. CV-16-6011231-S (June 24, 2019, Farley, J.). The court held that "the statute as written in 200[6] required sixty days’ notice of a substantial change in the scope of coverage in a proposed renewal policy and an explanation of the change(s) in order for an insurer to be in compliance with the statute ... Consistent with the language of the statute, the insurer’s notice must specify the reasons for nonrenewal, which of necessity requires an explanation of the changes to the policy." Id. If an insurer fails to comply with the requirements of the statute, depending on additional facts and circumstances bearing upon the insured’s awareness and acceptance of the new terms of coverage, the policy language in the existing policy may be carried forward into the new policy notwithstanding the insurance company’s intent to change the language. The circumstances under which additional future policies would be reformed to reflect the original policy language may vary from case to case.
In this case, there is evidence in the record suggesting that Amica did provide the plaintiffs with notice of the changes to the collapse coverage initiated in 2006. The notice related to the 2006-2007 policy states:
IMPORTANT NOTICE TO POLICYHOLDERS
A new Homeowners Program has been introduced and has resulted in a number of changes in policy language. We have listed some of the more significant coverage changes below.
REDUCED COVERAGE
Collapse- Many courts have interpreted collapse coverage to apply when a structure is, or is likely to be, in imminent danger of collapse because of loss to its structural integrity. Since these decisions are contrary to the long-standing intent of Collapse coverage, the definition and terms have been revised to more explicitly express intent. Additionally, language has been added to convey that hidden decay and hidden inset or vermin damage do not include decay and/or insect or vermin damage which the insured is aware of prior to collapse. In connection with the 2012 policy, the notice included with the policy materials states as follows:
A new Homeowners Program has been introduced and has resulted in a number of changes to your policy. Some of the more significant coverage broadenings, reductions and other changes are listed below.
II. SECTION I- PROPERTY COVERAGE
Broadening Of Coverage
Reductions Of Coverage
Other Changes
Section I- Additional Coverages, has been revised in part, to generally reinforce that collapse means an abrupt falling down or caving in of a building or any part of a building with the result that the building or part of the building cannot be occupied for its intended purpose. Also, it has been reinforced that this Additional Coverage applies to certain kinds of hidden decay and hidden insect or vermin damage to a building or any part of a building.
The plaintiffs, in addition to questioning whether these notices were actually provided to them, whether they were timely and given in the prescribed manner, also dispute the sufficiency of the notices because, they argue, the notices do not follow the procedure outlined in a 2004, bulletin issued by the Insurance Commissioner. The Insurance Commissioner issued Bulletin PC-42-04 on May 5, 2004 regarding the "cancellation and nonrenewal" of insurance policies. In particular, the bulletin addressed the use of what it characterized as "conditional renewal notices" in the context of what the legislature then required in General Statutes § 38a-323. The bulletin stated that "[a]ny significant reduction of coverage requires either a notice of nonrenewal or a conditional renewal notice" and that that a conditional renewal notice "must clearly state or be accompanied by a clear statement that identifies terms or conditions that may be less favorable to the insured under the ensuing policy." Insurance Department Bulletin PC-42-04.
The court does not reach the issue of the sufficiency of Amica’s notices because there are unresolved questions of fact as to whether the notices were actually sent to the plaintiffs and whether they were sent sixty days in advance of the expiration dates for the 2005 and 2011 policies. There is no evidence in the record establishing that Amica complied with the statute by sending the notices by registered or certified mail, or that Amica possesses a certificate of mailing, as the statute requires. If Amica did send the notices, there is no evidence demonstrating that was done at least 60 days in advance, so that the plaintiffs would have the statutorily mandated period of time to shop for alternative coverage before the existing policies expired. See Lemieux v. New London County Mutual Insurance Co., supra.
Even if it is assumed that Amica did not comply with the statute, the question remains, what consequence flows from Amica’s failure to do so. § 38a-323 provides for a "renewal of the policy for a term of not less than one year" in the event that an insurer fails to provide a notice of nonrenewal. Applied to these circumstances, that would potentially mean that the 2006-2007 policy and those issued between 2007 and 2012 would be deemed to include the earlier collapse language, and the 2012-2018 policies as well if the 2012 notice failed to cure any defect in the 2006 notice. See Lemieux v. New London County Mutual Insurance Co., supra. In the current posture of this case, it is not necessary or possible to definitively resolve what the consequence would be for Amica if it failed to comply with the statute. First, it remains an unresolved question whether Amica complied with the statute. Moreover, additional facts could impact what would be the remedy. For example, if Amica proves the notices were substantively sufficient and were actually sent to the plaintiffs, but not sixty days in advance, the consequence may be that only the 2006-2007 policy is impacted. That policy is not triggered under a manifestation theory and the question of coverage would be governed by the terms of the collapse coverage as written in the 2015-2016 policy. The record is only sufficient at this point to deny Amica’s motion for summary judgment to the extent it depends on the nonexistence of a genuine issue of material fact concerning what policy language applies.
III. PLAINTIFFS’ CUTPA/CUIPA CLAIM
The plaintiffs allege that Amica committed an unfair claims settlement practice when it denied their claim. They allege that Amica, through its participation in the Insurance Services Office (ISO), knows that there are many claims involving decaying concrete walls in northeastern Connecticut, that most insurers deny coverage on certain specified grounds, that Amica has knowledge of at least one case in which a homeowner was awarded coverage under the policy language contained in Amica’s earlier policies and that, notwithstanding Amica’s awareness of the collapse coverage in its policies, as well as the definition of "collapse" in its policies, Amica gave a "false and misleading reason for the denial of coverage," confirming its participation in an "industry wide practice of denying coverage for concrete decay claims." The plaintiffs maintain that the denial of their claim under these circumstances violated General Statutes § 38a-816(6)(f), which establishes as an unfair insurance practice "not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear." Such conduct is considered an unfair insurance practice if it is committed or performed "with such frequency as to indicate a general business practice."
Amica has moved for summary judgment on the plaintiffs’ CUTPA/CUIPA claim on several grounds- that there is no coverage, that coverage was at least not "reasonably clear" when it denied the claim and that, in any event, the plaintiffs have failed to produce any evidence of a general business practice. Amica has not submitted an affidavit addressing its handling of the plaintiffs’ claim, but the court nevertheless finds that its conclusions with respect to the coverage afforded under Amica’s policies defeats the plaintiffs’ CUTPA/CUIPA claims based on the pleadings.
This court has held that Amica’s 2015-2016 policy is the applicable policy and that the policy’s definition of "collapse" clearly precludes coverage for the plaintiffs’ claim. But for the unresolved questions surrounding Amica’s notices regarding changes to the collapse coverage initiated in 2006 and 2012, the court would have upheld Amica’s denial of coverage on summary judgment. There are no allegations in the plaintiffs’ CUTPA/CUIPA count, however, related to Amica’s failure to provide notice of the change in the scope of 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 Insurance Co., United States District Court, Docket No. 3:16CV00510 (JCH) (D.Conn. Dec. 15, 2017), quoting Zulick v. Patrons Mutual Insurance Co., 287 Conn. 367, 378, 949 A.2d 1084 (2008). In this case, there is no question concerning Amica’s interpretation of the language as written in the 2015-2016 policy. Amica’s denial of coverage is only questionable if that language is inapplicable because of § 38a-323. The plaintiffs have neither alleged nor submitted any evidence to suggest that Amica knew or had reason to know that it should be applying the pre-2006 policy language under its 2015-2016 policy due to the failure to provide a proper notice of nonrenewal in 2006 and 2012. Because the CUTPA/CUIPA claim is not based on Amica’s failure to provide notice of the change in policy language, Amica is entitled to summary judgment on that claim.
CONCLUSION
Even though the court concludes that the 2015-2016 policy is the applicable policy, the court is unable to resolve on summary judgment whether the earlier collapse coverage language must be deemed a part of that policy and, therefore, must deny Amica’s motion for summary judgment as to counts four and five. As to the plaintiffs’ CUTPA/CUIPA claim the court concludes that Amica’s denial of coverage under the terms of the 2015-2016 policy was reasonable as a matter of law and the plaintiffs’ CUTPA/CUIPA claim is not based on NLC’s failure to comply with § 38a-323. The court therefore denies Amica’s motion for summary judgment on counts four and five, but grants the motion as to count six.