MEMORANDUM OF DECISION GRANTING DEFENDANT STATE FARM CASUALTY COMPANY’S MOTION FOR SUMMARY JUDGMENT
Plaintiffs Gueng-Ho Kim and Jae Kim (“Plaintiffs") bring claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and claims under CUTPA, through CUIPA, against Defendant State Farm Fire and Casualty Company (“State Farm” or “Defendant”). After Defendant’s Motion to Dismiss, the only remaining claim alleges breach of contract. Defendant has moved for summary judgment. [Dkt, 30.] For the reasons that follow, State Farm’s Motion for Summary Judgment is GRANTED.
I. Background
The house at 121 Windshire Drive, South Windsor, Connecticut' (the “Property”) was built in 1985. [Dkt. 32-2 (Deposition of David Grandpre) (“Grandpre Dep.”) at 78.] Plaintiffs purchased the Property in 2004. [Dkt. 32-2 (Deposition of Gueng-Ho Kim) (“G, Kim Dep.”) at 12.]
Upon purchasing the Property, Plaintiffs purchased a homeowner’s insurance policy through State Farm bearing the policy number 07-BL-5701-1 (the “Policy”) and maintained the Policy throughout the relevant time period. [G, Kim Dép. at 41; see e.g., Dkt. 32-8 (Insurance Policy dated 7/23/2005 through 7/23/2006); Dkt. 36-6 (Insurance Policy dated 7/23/2013 through 7/23/2014); Dkt. 35 (Memorandum of Law In Opposition to Summary Judgment) at 3 (representing no material difference in the language of the two policies as they relate to this matter).] In the Policy, State Farm deleted a provision titled “SECTION 1-ADDITIONAL COVERAGES, Collapse.” [Dkt. 36-6 at 11 (collapse provision), 36 (deletion of collapse provision)
The Policy also excludes coverage for direct physical loss to property which “consists of, or is directly and immediately caused by [certain enumerated perils] regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damages, arises from natural or external forces, or occurs as a result of any combination of these.” Id. at 14. The excluded causes include, among others: “wear, tear, marring, scratching, deterioration, inherent vice, latent defect or mechanical breakdown” and “settling, cracking, shrinking, bulging, or expansion ... foundation.” Id. at 14. In addition, the Policy does “not insure ... for any loss consisting of ... defect weakness, inadequacy, fault or soundness in: (1) planning, zoning, development, survey, siting; (2) design, specifications, workmanship, construction, grading, compaction; (3) material used in construction or repairs; (4) maintenance.” Id, at 15. In addition, the Policy also provided that any legal action against State Farm “must be started within 18 months after the date of loss or damage.” Id. at 37.
In addition to purchasing the Policy, when Plaintiffs purchased the Property they hired U.S. Inspect, Inc. to inspect the Property. [Dkt. 36-5 (Inspection Report) at 1.] The July 15, 2004 inspection report revealed foundation damage. The report noted, efflorescence in the basement, specifically “evidence of water penetration through the foundation walls.” Id. The inspection report further advised that efflorescence “is normally remedied by better control of surface water” and would “most likely” be reduced or eliminated by “[p]roper grading of soil around the house and improvements in the roof drainage system.” Id. Plaintiffs indirectly admitted that they read the inspection report and were aware of the foundation damage caused by efflorescence, asserting that it was their understanding that the sellers of the Property completed the remedial measures to reduce surface water around the foundation suggested in the Inspection Report before Plaintiffs closed sale on the Property. G. Kim Dep. at 25.
Mr. Kim testified he had noticed some cracks in the Property’s foundation “from the beginning when [they] bought the house” but upon further reflection clarified that he “didn’t check” for cracking at that time and could not recall whetheslhe concrete was cracked in 2004. Givfphis understanding from the homé inspector’s report that the Property had “no structur'ál problems,” he attributed any cracks to “normal wear and tear stuff’ and “Affenal type uneven, sort of uneven tífcicféte work.” G. Kim Dep. at 46-48. does not recall the condition of the' concrete foundation when Plaintiffs purchased the Property. [Dkt. 36-2 (Deposition of Jae Kim) (“J. Kim Dep.”) at 31.] While the copies provided to the Court are unclear, Mr. Grandpre testified that photographs taken as part of the 2004 home inspection show “a map pattern cracking” in the foundation. [Dkt. 32-2 (Deposition of David Grandpre, P.E.) at 88; Dkt. 32-4 at 21 (photograph in question).]
Mr. Kim testified Plaintiffs first discovered a problem with the Property’s foundation when they attempted to sell the Property in 2014. G. Kim Dep. at 46. A prospective buyer’s real estate agent no
Plaintiffs filed a request for coverage for property damage due to the state of the Property’s foundation on July 7, 2014. [Dkt. 1-2
Defendants denied Plaintiffs’ request for coverage on March 16, 2015, asserting coverage was excluded from Plaintiffs’ Policy as “coverage for settling, cracking, bulging or expansion of the foundation and/or walls of the Premises.” [Dkt. 1-2 at 10.] The denial also asserted the concrete damage was excluded from coverage because it “arose from inherent defects in the concrete” as well as “inherent vice, latent defect and/or defective and inadequate planning, design, workmanship and/or construction.” Id. at 10-11. The denial also asserted the concrete’s damage, including visible cracking, “was present prior to the purchase of the Premises and outside the policy period,” and accordingly ineligible for coverage. Id. at 11.
Plaintiffs retained David Grandpre, P.E. to serve as an expert
Six months after Mr. Grandpre inspected the Property, on June 16, 2015, Plaintiffs filed their Complaint in the instant action.
II. Statement of Law
“A party may move for summary judgment, identifying each claim or defense— or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.” Fed. R. Civ. P. 56(a). In order to prevail, the moving party must sustain the burden of proving that no factual issues exist. Vivenzio v. City of Syracuse,
“A party opposing summary judgment ‘cannot defeat the motion by relying on the allegations in [her] pleading, or on conclu-sory statements, or on mere assertions that affidavits supporting the motion are not credible.’ At the summary judgment stage of the proceeding, [plaintiffs are required to present admissible evidence in support of their allegations; allegations
A court must make the threshold determination of whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson,
“A party asserting that a fact .is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.”- Fed. R. Civ, P. 56(c)(1). A party , may also support their assertion by “showing that the materials cited do not establish the absence ... of a gemjine dispute.” Id. Cited documents must consist of either “(1) the affidavit of a witness competent to testify as to the facts at fyial and/or (2) evidence that would be admissible at trial.” Local R. Civ. P. 56(a]3; see also Fed. R. Civ. P. 56(c)(4).
The Court need not consider any materials that the parties have failed to cite, but may in its discretion consider other materials in the record. Fed. R. Civ, P. 56(c)(3). If a party fails to propeiiy support an assertion of fact, or fails to properly address another party’s assertion of fact, the Court may grant summary judgment on the basis of the undisputed facts. D. Conn. L. Rule 56(a)(3) (stating that “failure to provide specific citations to evidence in the record as required by this Local Rule may resujt in the Court deeming certain facts that are supported by the evidence admitted ,in accordance with [Local] Rule 56(a)(1) or in the Court imposing sanctions, including ... an order granting the motion if the undisputed facts show that the movant is entitled to judgment as a matter of law”).
III. Analysis
Plaintiffs allege State Farm is liable for breach of contract because it failed to cover losses as set forth in the Policy. An insurance policy “is to be interpreted by the same general rules that
Where the language of a contract is unambiguous, a court “must give the contract effect according to its terms.” Harbour Pointe,
Where the language of an insur-anee policy is ambiguous, such language must be construed against the insurance company that drafted the policy. See Springdale Donuts, Inc. v. Aetna Cas. & Sur. Co.,
State Farm asserts the Policy does not provide coverage for the Property’s concrete damage for multiple reasons. First, State Farm notes the Policy does not include .the “collapse” provision usually relied., upon in .cases involving cracked concrete. Second, State Farm asserts concrete damage falls under numerous Policy exclusions including damage from wear and tear, inherent vice, deterioration, latent defect, or mechanical breakdown. Third, State Farm asserts even if Plaintiffs’ loss did not fall, within Policy exclusions, the Policy only covers accidental direct physical loss, rather than inherent defects like the concrete damage. Fourth, State Farm asserts Plaintiffs are barred from raising this claim by . the Policy’s 18-month suit limitation provision because they first learned of the cracks in the basement walls in 2004 when they purchased the Property. Finally, Defendant argues the “loss” Plaintiffs have suffered occurred before the Policy period began, when the basement walls began to crack. The Court discusses Defendant’s arguments below,
a. There Is No Policy Provision Covering “Collapse”
State Farm appears to have used form insurance coverage language as the basis of the Kims’ Policy and deleted portions of that form language in an amendment before executing the Policy. Among
The Court disagrees with Plaintiffs’ interpretation of the Policy^ Viewing “[t]he contract , [. in its entirety, with each provision read in light of the other provisions,” as the Court must do, it is clear the deleted exclusion was not intended to create a new right of coverage. Harbour Pointe, 300 . at 261,
b. Whether the Policy Covers Plaintiffs’ Loss Absent a Collapse Provision
Since there is no express provision covering collapse, the Policy only covers Plaintiffs’ loss if it falls within the Policy’s base all-risk coverage. The Policy, termed an “all-risk” policy, provides coverage for “accidental direct physical loss to property described in Coverage A, except as provided in SECTION 1-LOSSES NOT INSURED.” [Dkt. 36-6 at 12.] Among the losses enumerated in “SECTION 1-LOSS-ES NOT INSURED” are exclusions for “settling, cracking shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs or ceilings,” and “defect, weakness, inadequacy, fault or unsoundness in ... design, specifications, workmanship, construction, grading, compaction [or] materials used in construction or repair.” Id. at 14,16.
Plaintiffs’ expert, Mr. Grandpre, testified at his deposition that the concrete used in the Property’s foundation was an “impaired product, that is going to break down and [is] going to crack and expand and break apart.” Grandpre Dep. at 76. The consultative engineer employed by State Farm to inspect the Property likewise found “[significant efflorescence” on the interior foundation walls as well as network cracking on the exterior foundation walls, which he concluded was a result
Plaintiffs do not assert the Property’s foundation was not cracked or that the concrete was not defective. Rather, Plaintiffs assert the deleted exclusion for losses caused by collapse creates a specific coverage for collapse exempting Plaintiffs from the exclusions for cracking and defect. [Dkt. 35 at 9-10.] As explained above; this interpretation is inconsistent with the plain meaning of the terms of the Policy. In light of the evidence presented by both parties that the Property’s foundation was cracked and the concrete used was defective, the Court finds Plaintiffs’- loss falls within Policy exclusions and summary judgment must be GRANTED in favor of Defendant.
c. Timeliness of Plaintiffs’ Claim
Defendant also raises two timing arguments in support of summary judgment. Defendant first notes a Policy provision limiting the time frame in which a policy holder may bring suit under the Policy to “18 months after the date of loss or damage.” Policy at 37. Because the basement walls were cracked as early as 2004 when Plaintiffs purchased the Property, Defendant argues Plaintiffs’ suit is untimely. Plaintiffs do not dispute the legality of the suit.limitation provision, but assert Defendant is- improperly applying it. Plaintiffs assert the 18-month limitation period began to run not when they first noticed the cracked concrete, but when they first discovered its significance on July 3, 2014.
Similarly, Defendant notes a Policy provision limiting coverage to “loss under Section I or bodily injury or property damage under Section II which occurs during the period that this policy is in effect.” Policy
Both timeliness arguments invite the Court to consider when Plaintiffs knew or should have known of their loss. The parties present Mr. Kim’s conflicting deposition testimony G. Kim. Dep. at 47-48 (stating the cracks were present “from the beginning when we bought the house” in 2004, but also stating he does not recall whether cracks were present when’ the Kims purchased the Home, and that he “didn’t check” for cracking at that time), Mrs. Kim’s memory failure J. Kim. Dep. at 31 (stating she does not recall the state of the concrete when they purchased the home), and unclear photographs of the Property’s foundation from 2004 (Dkt. 32-4 at 21). The Kims’ statements that they were either ignorant or unaware of whether there were cracks in the foundation walls caused by efflorescence prior to purchasing the house does not raise a genuine issue of material fact for two reasons. First, some of the statements are not affirmative statements 'of fact. Second, any denial is inconsistent with, and undermined by, the assertion that they understood the sellers were going to correct the condition which caused the efflorescence prior to the closing. His admission resolves’ the question of whether Mr. Kim was aware of the efflorescence and cracking it caused prior to purchasing the home. Despite the denials and equivocations, the overwhelming weight of the Plaintiffs’ testimony is that they were aware of the cracking, albeit not the cause, severity or consequences, at the time of purchase. However, the Court has determined that the Policy would exclude coverage for Plaintiffs’ asserted loss even if timely raised. Summary judgment is accordingly appropriate as to Plaintiffs breach of contract claim.
IV. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED. The Clerk is directed to close this case.
IT IS SO ORDERED.
Notes
. Page citations in this document refer to page numbers provided by the electronic court filing system, as the document's internal
. The Denial of Coverage letter was attached to Plaintiffs’ Complaint and incorporated by reference into the summary judgment briefing. [See, e.g., Dkt. 31 at 8.]
. Mr. Grandpre’s deposition testimony indicates he has been a licensed engineer since 1986 and is certified in structural engineering. [Dkt. 32-2 (Deposition of David Grandpre, P.E.) ("Grandpre Dep.”) at 10.] Defendant does not disputes Mr. Grand-pre’s expertise or his deposition testimony’s admissibility; in fact, both parties rely on
. Page citations reference the electronic court system numbering, as the document is not itself paginated.
. Page citations in this document refer to page numbers provided by the electronic court filing system, as the document’s internal pagination is not continuous through different sections of the Policy.
. Defendant also asserts Plaintiffs’ loss 'falls within a third exclusion for wear and tear. Plaintiffs dispute this, asserting the concrete’s deterioration is not "wear and tear” because it is outside the realm of degradation normally expected of basement walls. [Dkt. 35 at 9 n.4.] Both parties also analyze whether an "all-risk” insurance policy, which covers "losses that are caused by fortuitous and extraneous events where there is no express provision excluding coverage,” would cover concrete deterioration which was inevitable due to the components of the concrete but which was not known or intended by the policyholders. City of Burlington v. Indem. Ins. Co. of N. Am.,