Rudeen v. Allstate Insurance Company et al

3:16-cv-01827-JBA

2018 | Cited 0 times | D. Connecticut | March 20, 2018

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

No. 3:16-cv-1827 (MPS)

RULING ON MOTIONS TO DISMISS This is one of many recent cases in this district alleging that insurers have wrongly denied coverage for damage to the foundations of s caused by defective concrete from the J.J. Mottes Concrete Company. Susan Rudeen filed this action in state court against the four homeowners insurance companies that insured her home at various intervals from 1996 to the present Allstate Insurance Co., the Hanover Insurance Co., Massachusetts Bay Insurance Co., and Utica First Insurance Co. alleging that their refusal to cover damage to her basement walls from this faulty concrete breached the policies and violated other legal duties. (ECF No. 1.) Allstate removed the case to this court on November 7, 2016. (Id.) Allstate and Utica First now have moved to dismiss Rudeen has failed to allege facts that would bring her claimed losses within the coverage afforded by policies. (ECF Nos. 26, 28, 36) For the reasons that follow, I GRANT .

I. Factual Allegations

According to the allegations in the complaint, Allstate Insurance Co. (Allstate) insured home at 30 Harriet Drive in Coventry, Connecticut from 1996 through 2002. (ECF SUSAN RUDEEN, Plaintiff, v. ALLSTATE INSURANCE CO., THE HANOVER INSURANCE CO., MASSACHUSETTS BAY INSURANCE CO., AND UTICA FIRST INSURANCE CO. Defendants.

No. 26 at ¶¶ 8 9.) Rudeen made all required insurance payments during that period. (Id. at ¶ 10.) required insurance payments during that time. (Id at ¶¶ 60 61.) Massachusetts Bay Insurance Co.

payments during that time. (Id. at ¶¶ 84 85.) Utica First Insurance Co. (Utica First) has insured

Rudee ough the present, and Rudeen made all required insurance payments during that time. (Id. at ¶¶ 108 09.)

that the basement walls in the addition of her home had a series of horizontal ECF No. 26 at ¶ 11.) The addition was built in the mid-1980s. (Id. at ¶ 8.) an investigation of this condition, its cause, and the method of repair by consulting with contractors

Id. at ¶ 12.) the addition was due to a chemical compound found in certain concrete walls constructed in the

l (Id. at ¶ 13.)

manufacturing the concrete in that particular time period contained a chemical compound which, with its mixture with the water, sand[,] and cement necessary to form the concrete, began to oxidize (Id. at ¶ 14.) She ffective in reversing the decay[;] Id. at ¶ 15.)

some point between the date on which the basement walls were poured and the month of October[] 2015, the basement walls of the addition suffered a substantial ECF No. 26 at ¶ 16.) question of time until the basement walls of the addition to [her] home will fall in due to the Id. at ¶ 16.) walls of the addition, the entire addition will fall into the Id. at ¶ 18.) She also alleges substantial impairment and complete degradation, it may cause sudden events throughout the

Id. at ¶ 19.) weakens, external forces may cause a series of sudden events where the walls bulge and shift in

some increment or pieces of concrete become dislodged and fall to the floor Id. at ¶ 20.)

A. Specific Allegations and Claims against Allstate On May 5, 2016,

addition. (ECF No. 26 at ¶ 21.) plaintiff made a timely claim for coverage of the loss in accordance with the terms of all the homeowner Id. at ¶ 22.) Allstate denied her claim on October 6, 2016. (Id. at ¶ 26.) She claims that this breached her with Allstate and that the cost of replacing the basement walls will be at least $150,000. (Id. at ¶¶ 31 32.)

Rudeen also alleges that Allstate participates in the Insurance Services Office, Inc. (ISO), a cooperative organization of insurers that made, the policy provisions cited for the basis of each claim, the geographic areas in which the claimed damage has occurred, and the actions taken by insurers in response to such claims. (ECF No. 26 at ¶ 45.)

Rudeen alleges that, through participation in ISO, Allstate had knowledge of in northeastern Connecticut resulting from similar concrete decay. (Id. at ¶ 48.)

Rudeen alleges exclusions that are wholly (ECF No. 26 at ¶ 35.) She states that intentionally cited policy exclusions wholly inapplicable to [her] claim for coverage knowing full well that [Rudeen], like most insureds, is unsophisticated with respect Id. at ¶ 36.) She claims t the ISO, Allstate has knowledge of cases such as Bacewicz v. NGM Insurance . . . where the

plaintiffs were awarded judgment against the insurer on a concrete decay claim based on policy Id. at ¶ 50.) According to Rudeen, Allstate that the collapse of basement walls of a building caused by hidden decay or by the use of faulty or defective materials or methods of construction is not a covered loss (Id. at ¶ 40.)

Based on these allegations, Rudeen seeks a declaratory judgment that Allstate has a duty to provide coverage and has brought claims of breach of contract, breach of the covenant of good faith and fair dealing, and violation of the Connecticut Unfair Insurance Practices Act, Conn. Gen. Stat. §§ 38a-815 et seq., (CUIPA) and the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. §§ 42-110a et seq., (CUTPA) against Allstate. Allstate has moved to dismiss all of these claims. (ECF No. 28.)

B. Specific Allegations and Claims Against Utica First

Utica . . . of the condition of the basement walls 119 Utica of the condition, the

plaintiff made a timely claim for coverage of the loss in accordance with the terms of all the homeowne Utica Id. at ¶ 120.) Utica First denied her claim on July 11, 2016. (Id. at ¶ 121.) Id. at ¶¶ 124 25.)

Rudeen alleges that Utica exclusions that are wholly (ECF No. 26 at ¶ 129.) Rudeen further alleges that Utica intentionally cited policy exclusions wholly inapplicable to [her] claim for coverage knowing full well that [Rudeen], like most insureds, is unsophisticated Id. at ¶ 130.) She states suffered to her home was not covered solely to preserve its own assets by avoiding payment for a

covered loss. (Id. at ¶ 131.) as Rudeen. (Id. at ¶ 140 (citing Michael Willenborg, et al. v. Unitrin Preferred Ins. Co., et al.,

Tolland Superior Court Docket No. TTD-CV-16-6010936-S).)

Based on these allegations, Rudeen has brought claims of breach of contract, breach of the covenant of good faith and fair dealing, and violation of CUIPA and CUTPA against Utica First. Utica First has moved to dismiss all of these claims. (ECF No. 36.)

II. Legal Standard

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), the Court must determine whether the plaintiff enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under Twombly, but not conclusory allegations when evaluating a motion to dismiss. Twombly, 550 U.S. at 572. The Court must l reasonable inferences in favor of the non- n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008) When a complaint is based solely on wholly conclusory allegations and provides no factual support for such claims, it is appropriate to grant defendants motion to dismiss. Scott v. Town of Monroe, 306 F. Supp.2d 191, 198 (D. Conn. 2004) away conclusory allegations, there must remain sufficient well-pleaded factual allegations to

In re Fosamax Products Liab. Litig., No. 09-cv-1412 (JFK), 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010).

In deciding a Rule 12(b)(6) motion, I may consider documents attached to, integral to, or incorporated by reference in the complaint. See Fed. R. Civ. P. 10(c); Chambers v. Time Warner, he court may nevertheless consider it where the complaint relies heavily upon its terms and effect,

B. Interpreting Insurance Policies

reted by the same general rules that govern the Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5 (2008) (citation and quotation marks omitted).

If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . . When interpreting an insurance policy, we must look at the contract as a whole, consider all relevant portions together and, if possible, give As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. Id. at 5 6 (citations, quotation marks, and alterations omitted).

III. Analysis

A. Allstate has moved to dismiss all of against it. It argues that the unambiguous language of its policy does not cover alleged loss and that, because the policy does not afford coverage, Rudeen has failed to state a claim for breach of contract, breach of the implied covenant of good faith and fair dealing, or a violation of CUIPA or CUTPA, and has failed to show that the Court should enter a declaratory judgment in her favor. (See ECF No. 28 at 2.) For the reasons that follow, I agree.

1. Breach of Contract

a. Applicable Policy from 1996 through 2002 (ECF No. 26 at ¶ 9), Allstate attached a single policy (the Allstate Policy) effective beginning May 3, 2001 to its motion to dismiss. (ECF No. 29-3.) Rudeen does not allege that a policy other than the Allstate Policy applies to her claims or that Allstate incorrectly relied on that policy in its denial letter.

Rather, Rudeen relies on the provisions of the Allstate Policy throughout her response. (See ECF No. 34.) As a result, although Rudeen did not attach the Allstate Policy to her complaint, that policy is integral to her claims, and I must decide whether she has stated plausible claims in light of that policy.

29-3 at 24 25.) Your Id. at 24.)

Losses We Cover Under Coverages A and B: We will cover sudden and accidental direct physical loss to property as described in Coverage A Dwelling Protection and Coverage B Other Structures Protection except as limited or excluded in this policy. (Id. at 29.) The Policy continues:

Losses We Do Not Cover Under Coverages A and B: We do not cover loss to the property described in Coverage A Dwelling Protection or Coverage B Other Structures Protection consisting of or caused by: . . . . 12. Collapse, except as specifically provided in Section I Additional Protection, . . . In addition, we do not cover loss consisting of or caused by any of the following: 15. a) wear and tear, aging, marring, scratching, deterioration, inherent vice, or latent defect; . . . d) rust or other corrosion, mold, wet or dry rot; . . . g) settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; . . . .

22. Planning, Construction or Maintenance, meaning faulty, inadequate or defective: . . . c) materials used on repair, construction, renovation or remodeling . . . . (Id. at 30 31.)

in pertinent part:

11. Collapse We will cover: (a) the entire collapse of a covered building structure; (b) the entire collapse of part of a covered building structure; and (c) direct physical loss to covered property caused by (a) or (b) above. For coverage to apply, the collapse of a building structure specified in (a) or (b) above must be a sudden and accidental direct physical loss caused by one or more of the following: . . . (b) hidden decay of the building structure; (c) hidden damage to the building structure caused by insects or vermin; . . . (f) defective methods or materials used in construction, repair, remodeling or renovation. Collapse does not include settling, cracking, shrinking, bulging or expansion. (ECF No. 29-3 at 38.)

b. Rudeen claims that her alleged loss is covered under the above-quoted collapse provision (ECF No. 29-3 at 38 ¶ 11.) The apply, the collapse of a building structure Id.) Rudeen argues the [Allstate Policy] appear to provide coverage for the collapse of a building structure . . . or part of a bui a term the Connecticut

Beach v. Middlesex Mut. Ass. Co., 205 Conn. 246, 252 (1987).) Rudeen argues that her complaint alleges such a structural impairment caused by one of perils hidden home. (Id.; ECF No. 26 not

necessarily denote temporal abruptness, because many of the enumerated perils in the collapse provision complaint passes muster

becom[ing] dislodged and fall[ing] to 20.) I do not find

these arguments to be persuasive.

, which requires that

Buell Indus., Inc. v. Greater New York Mut. Ins. Co., 259 Conn. 527, 536 (2002). Reviewing dictionary definitions, the Court Id. at 540 (emphasis added). But it concluded

ed an element of unexpectedness and thus mere surplussage. Id. at 540 41.

Following the logic of Buell, this Court and state trial courts have ruled in favor of insurance companies in concrete decay cases where insurance policies require or otherwise contain language requiring that the loss be temporally abrupt,

including in cases involving the policy language at issue here. See, e.g., Manseau v. Allstate Ins. Co., 16-cv-1231 (MPS), 2017 WL 3821791, at *3 *5 (D. Conn. Aug. 31, 2017) (granting Adams v. Allstate Ins. Co., No. 3:16-CV-1360 (JBA), 2017 WL 3763837, at *4 (D. Conn. Aug.

29, 2017) (same); Clough v. Allstate Ins. Co., No. 3:17-CV-140 (JBA), 2017 WL 3763841, at *5 (D. Conn. Aug. 29, 2017) (same); Miller v. Allstate Ins. Co., No. 3:16-CV-2059 (JBA), 2017 WL 3763425, at *4 (D. Conn. Aug. 29, 2017) (same); Metsack v. Liberty Mut. Fire Ins. Co., No. 3:14- CV-1150 (VLB), 2017 WL 706599, at *7 (D. Conn. Feb. 21, 2017) (granting motion for summary Alexander v. General Ins. Co. of America, No. 3:16-CV-59 (SRU), transcript of oral ruling, ECF No. 22 at 23 (D. Conn. July 7, 2016) (granting motion to dismiss where policy at issue defined collapse as an Jemiola v. Hartford Cas. Ins. Co., No. CV-15-6008837-S, 2017 WL 1258778, at *1 (Conn. Super. Ct. Mar. 2, 2017) (granting summary judgment where Toomey v. Central Mut. Ins. Co., Docket No. CV-15-6009841-S (Conn. Super. Ct. Aug. 3, 2017) (unpublished) (granting summary . I, again, reach must be a

event.

some of the covered cur gradually rests on a misreading of the plain language of the Allstate Policy. (ECF No. 41 at 14 15.) That language

29- st be a sudden and accidental direct physical loss caused by . . . The Court in Alexander explained it as follows during

Mr. Lindequist: But the collapse has to be caused by one of the enumerated perils, one of which is the cave[-in] that is hidden from view . . . . F have a collapse or falling in. The fact that it was caused by termites and it was a

Alexander v. General Ins. Co. of America, No. 3:16-cv-59, transcript of oral ruling, ECF No. 22- 2 at 13 14 (D. Conn. July 7, 2016). 1

The Allstate Policy unambiguously affords coverage once the specified hidden processes, such as decay or insect infestation, result in a sudden and accidental collapse. See id. at 13 14; see also Metsack v. Liberty Mut. Fire Ins. Co., No. 14-cv-1150 (VLB), 2017 WL 706599, at *7 (D. Conn. Feb. 21, 2017). 2

1 I recognize that the policy language in Alexander was somewhat different than that at issue here, but the point is that there is nothing necessarily ambiguous about a provision that affords coverage for temporally abrupt events caused by gradual processes. 2 In support of her position, Rudeen urges the Court to adopt the reasoning of Kelly v. Balboa Ins. Co., 897 F. Supp. a policy that covers insect damage rendered the provision ambiguous). Unlike the Connecticut Buell, the Kelly decision is not binding on this court. I therefore agree with other courts in this District, holding that, in this context, sudden unambiguously means temporally abrupt. Rudeen also relies on Dalton v. Harleysville Worcester Mut. Ins. Co. provision did not require a sudden event to afford coverage. By its own terms, however, Dalton is distinguishable because the collapse provision there event and did not otherwise qualify the term 557 F.3d at 90.

Because as used in the collapse provision of the Allstate Policy, unambiguously means temporally abrupt, Rudeen must have plausibly alleged that her claimed loss occurred abruptly not merely unexpectedly for coverage to have applied. Even when her allegations are construed in the light most favorable to her, Rudeen has not alleged plausibly that any damage to her home occurred temporally abruptly. To the contrary, the loss described in the complaint has involved While Rudeen does allege that weakens, external forces may cause a series of sudden events where the walls bulge and shift in

some increment or pieces of concrete become dislodged and fall to the floor (ECF No. 26 at ¶ 20 (emphasis added)), at most that statement alleges that the gradual process of decay she describes could possibly cause visible effects that happen temporally abruptly; she does not allege that any such temporally abrupt events have actually occurred in her house. only underscores that the loss here involves

a gradual process rather than a sudden event. (Id. at ¶ 17.) These allegations do not set forth a plausible claim ECF No. 29- 3 at 38 ¶ 11.)

Further, the Allstate Policy specifies that 29-3 at 29 ¶ 5.) In addition to alleging that her

the reasons discussed above), Rudeen alleges at ¶ 11.) The cracking Rudeen alleges to

have occurred falls squarely within the specific exclusion Case 3:16-cv-01827-JBA Document 44 Filed 03/20/18 Page 13 of 20 in the Allstate Policy provision. (ECF No. 29-3 at 29 ¶ 5.) As a result, For these reasons, her breach of contract claim and her claim for a declaratory judgment both fail.

2. Implied Covenant of Good Faith and Fair Dealing Allstate also has moved to dismiss Count Two, which alleges breach of the implied Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432 (2004) (internal citations, quotation marks, and alterations omitted). To maintain a claim for breach of the implied covenant of good faith and fair dealing, Rudeen must plausibly allege that Allstate acted in bad faith in wrongfully denying coverage for the alleged loss. Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 308 Conn. 760, 794 the implied covenant of good faith and fair dealing, the acts by which a defendant allegedly the contract must (alterations omitted)). iolations of express

duties are necessary to maintai Id. at 797. As a result, the implied

Id. at 795.

Rudeen has alleged that she expected to receive benefits under the Allstate Policy and that acted (ECF No. 26 at ¶¶ 33 41.) Because

I find that Rudeen fails to state a plausible claim for breach of contract against Allstate and that

therefore did not impair her contractual rights under the Allstate Policy, her claim for breach of the implied covenant of good faith and fair dealing also fails.

3. CUIPA/CUTPA Finally, Allstate also moves to dismiss Count Three, which alleges a violation of CUIPA and CUTPA. d on a substantive violation of Karas v. Liberty Ins. Corp., 33 F. Supp.3d 110, 117 (D. Conn. 2014). To state a CUIPA/CUTPA claim, the plaintiff must plausibly allege

Belz v. Peerless Ins. Co., 46 F. Supp. 3d 157, 165 (D. Conn. 2014). Rudeen relies on a CUIPA provision making it an unfair insurance practice to fail to attempt good faith to effectuate prompt, fair[,] and equitable settlements of claims in which liability 38a-816(6)(F).) She alleges that Allstate gave her a false and misleading reason for the has regularly been engaged in refusing to attempt in good faith to effectuate prompt, fair[,] and , and had knowledge of numerous claims and lawsuits resulting from similar concrete decay through participation in the ISO. (ECF No. 26 at ¶¶ 45 54). But refusing to settle a claim that the plain terms of the Allstate Policy do not cover is not an unfair insurance practice. And interpretation of its policy is correct, there can be no violation of CUIPA/CUTPA. Zulick v. Patrons Mut. Ins. Co., 287 Conn. 367, 378 (2008)

interpretation of an insurance policy was correct). Rudeens CUIPA/CUTPA claim is therefore dismissed.

B. otion to Dismiss

Utica First also It argues that Rloss was excluded from its policy coverage in unambiguous terms and thus that Rudeen has failed to state claims for breach of contract, breach of the implied covenant of good faith and fair dealing, or for a violation of CUIPA or CUTPA. (See ECF No. 36 at 1 2.) For the reasons that follow, this motion is denied.

1. Breach of Contract The parties do not agree that the 2015 2016 policy Utica First attached to its motion to dismiss is the only applicable policy. Rudeen alleges that (ECF No. 26 at ¶ 108.) She

Id. at ¶ 110.) She id. at ¶ 111) and that in accordance with the terms of all issued to her by Utica May 5, 2016 Id. at ¶¶ 119 120 (emphasis

added).) contrary to the express provision of the homeowners policies er the Id.

at ¶¶ 124 25 (emphases added).)

Utica First attached to its motion to dismiss a Rudeen purchased from it in 2015 (the Utica First Policy). (ECF No. 36 at 18 19.) The Utica First Policy was effective from May 7, 2015 until May 7, 2016. (Id. at 8.) In her opposition brief, Rudeen argues that Utica offers no legal authority or analysis suggesting that this is the sole policy triggered by the progressive decay condition alleged in the First Amended Complaint, nor does Utica offer any

authority or analysis suggesting that the . . . claimed loss occurred during the period of this policy. -]based policy and applies only to losses that occur during the policy period. (ECF No. 39 at 7 (citing ECF No. 36 at 1).) Utica First did not file a reply and thus has made no attempt to show that the 2015 2016 policy is the only policy claim or that her claimed loss is not covered under any subsequent policy. Therefore, drawing all I find that she has alleged that the damage is continuing and potentially covered by more than one Utica First Policy, including one that is not before the Court.

Even if it was clear that the claims, again drawing must be construed in her favor. Connecticut Medical Ins. Co., 286 Conn. at 5. The Utica First Policy states, under Coverage A, . . . a - (ECF No. 36 at 57). The complaint plausibly pleads a

risk[] of direct physical loss to an addition, and the only specific exclusion on which Utica First relies [w]e do not pay for loss caused by the settling, cracking, shrinking, bulging[,] or expanding of a building structure or mobile home, pavements, patios[,] or other outdoor structures (id. at 57 (emphasis added) does not unambiguously foreclose coverage of the alleged loss. Specifically, Rudeen argues that the above-quoted exclusion for cracking is inapplicable to her claim racking was caused by cracking but that the cracking condition is caused by decay and consists of the impairment of the structural integrity. . . . [She] merely alleges that the decay condition results in the manifestation of cracking on the face of the No. 39 at 9.) allegations Case 3:16-cv-01827-JBA Document 44 Filed 03/20/18 Page 17 of 20 addition was due to a chemical compound found [in concrete supplied by the J.J. Mottes Company] (ECF No. 26 at ¶ 13) fall outside the exclusion on which Utica First relies. Although some courts in this district have suggested that policy language excluding cracking excluded coverage for concrete decay, the exclusion in the Utica First Policy language is notably narrower, making no mention of losses consisting of cracking. See Adams v. Allstate Ins. Co., 276 F. Supp.3d 1, 5 (D. Conn. 2017) dismiss and noting that explicitly excludes co

ceilings ; Clough v. Allstate Ins. Co., 279 F. Supp.3d 387, 392 (D. Conn. 2017) (same); Miller v. Allstate Ins. Co., 279 F. Supp.3d 381, 386 (D. Conn. 2017). Because Rudeens alleged loss was a direct physical loss and was not caused by cracking, it sets forth a plausible claim for coverage. Therefore, drawing all inferences in Rudeens favor, I s motion to dismiss .

2. Implied Covenant of Good Faith and Fair Dealing Rudeen has alleged that she expected to receive benefits under the Utica First Policy and that Utica First the damage suffered to the base at ¶¶ 33 41.) As

I have already found, Rudeen has stated a plausible claim for breach of contract against Utica First. She also has alleged that Utica First intentionally cited policy exclusions wholly inapplicable to the plaintiffs claim for coverage knowing full well that the plaintiff, like most insureds, is unsophisticated with respect to the complex language contained in insurance policies. (ECF No. 26 at ¶ 130.) Under the law stated above in reference to Rudeens claims against Allstate, this suffices to allege a claim for breach of the covenant of good faith and fair dealing because Rudeen

has alleged that Utica First took actions to allegedly impede[] [Rudeens] right to receive benefits and that those actions were taken in bad faith. Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 308 Conn. 760, 794 95 (2013) Therefore, claim as well.

3. CUIPA/CUTPA Finally, Rudeen again relies on a CUIPA provision making it an unfair insurance practice good faith to effectuate prompt, fair[,] and equitable settlements of claims in which liability has become reasonably clear to bring a CUIPA/CUTPA claim against Utica First, based on this alleged breach of contract. (ECF No. 26 at ¶ 141. (citing Conn. Gen. Stat. § 38a- 816(6)(F).) She alleges that Utica First . (ECF No.

26 at ¶¶ 138 139.) She supports her allegation that this is a general business practice by citing a case in which Utica First denied coverage to one [] other homeowner affected with the same damage as that suffered by the plaintiff. (Id. at ¶ 140 (citing a Connecticut Superior Court case, Michael Willenborg, et al. v. Unitrin Preferred Ins. Co., et al., Tolland Superior Court Docket No. TTD-CV-16-6010938-S).)

Under the law stated above in relation to the CUIPA/CUTPA claim against Allstate, because I find that Rudeen has stated a plausible claim for breach of contract and because she has made these additional allegations regarding a general business practice and cited at least one other similar denial of coverage in support of that allegation, CUIPA/CUTPA claim against Utica First is plausible. Therefore, I claim.

IV. Conclusion

For the reasons stated above, I of the Amended Complaint (ECF No. 28) and DENY

through IX of the Amended Complaint. (ECF No. 36.) Because no other claims remain against it,

It is SO ORDERED. /s/ Michael P. Shea, U.S.D.J. Dated: Hartford, Connecticut

March 20, 2018

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

No. 3:16-cv-1827 (MPS)

RULING ON MOTIONS TO DISMISS This is one of many recent cases in this district alleging that insurers have wrongly denied coverage for damage to the foundations of s caused by defective concrete from the J.J. Mottes Concrete Company. Susan Rudeen filed this action in state court against the four homeowners insurance companies that insured her home at various intervals from 1996 to the present Allstate Insurance Co., the Hanover Insurance Co., Massachusetts Bay Insurance Co., and Utica First Insurance Co. alleging that their refusal to cover damage to her basement walls from this faulty concrete breached the policies and violated other legal duties. (ECF No. 1.) Allstate removed the case to this court on November 7, 2016. (Id.) Allstate and Utica First now have moved to dismiss Rudeen has failed to allege facts that would bring her claimed losses within the coverage afforded by policies. (ECF Nos. 26, 28, 36) For the reasons that follow, I GRANT .

I. Factual Allegations

According to the allegations in the complaint, Allstate Insurance Co. (Allstate) insured home at 30 Harriet Drive in Coventry, Connecticut from 1996 through 2002. (ECF SUSAN RUDEEN, Plaintiff, v. ALLSTATE INSURANCE CO., THE HANOVER INSURANCE CO., MASSACHUSETTS BAY INSURANCE CO., AND UTICA FIRST INSURANCE CO. Defendants.

No. 26 at ¶¶ 8 9.) Rudeen made all required insurance payments during that period. (Id. at ¶ 10.) required insurance payments during that time. (Id at ¶¶ 60 61.) Massachusetts Bay Insurance Co.

payments during that time. (Id. at ¶¶ 84 85.) Utica First Insurance Co. (Utica First) has insured

Rudee ough the present, and Rudeen made all required insurance payments during that time. (Id. at ¶¶ 108 09.)

that the basement walls in the addition of her home had a series of horizontal ECF No. 26 at ¶ 11.) The addition was built in the mid-1980s. (Id. at ¶ 8.) an investigation of this condition, its cause, and the method of repair by consulting with contractors

Id. at ¶ 12.) the addition was due to a chemical compound found in certain concrete walls constructed in the

l (Id. at ¶ 13.)

manufacturing the concrete in that particular time period contained a chemical compound which, with its mixture with the water, sand[,] and cement necessary to form the concrete, began to oxidize (Id. at ¶ 14.) She ffective in reversing the decay[;] Id. at ¶ 15.)

some point between the date on which the basement walls were poured and the month of October[] 2015, the basement walls of the addition suffered a substantial ECF No. 26 at ¶ 16.) question of time until the basement walls of the addition to [her] home will fall in due to the Id. at ¶ 16.) walls of the addition, the entire addition will fall into the Id. at ¶ 18.) She also alleges substantial impairment and complete degradation, it may cause sudden events throughout the

Id. at ¶ 19.) weakens, external forces may cause a series of sudden events where the walls bulge and shift in

some increment or pieces of concrete become dislodged and fall to the floor Id. at ¶ 20.)

A. Specific Allegations and Claims against Allstate On May 5, 2016,

addition. (ECF No. 26 at ¶ 21.) plaintiff made a timely claim for coverage of the loss in accordance with the terms of all the homeowner Id. at ¶ 22.) Allstate denied her claim on October 6, 2016. (Id. at ¶ 26.) She claims that this breached her with Allstate and that the cost of replacing the basement walls will be at least $150,000. (Id. at ¶¶ 31 32.)

Rudeen also alleges that Allstate participates in the Insurance Services Office, Inc. (ISO), a cooperative organization of insurers that made, the policy provisions cited for the basis of each claim, the geographic areas in which the claimed damage has occurred, and the actions taken by insurers in response to such claims. (ECF No. 26 at ¶ 45.)

Rudeen alleges that, through participation in ISO, Allstate had knowledge of in northeastern Connecticut resulting from similar concrete decay. (Id. at ¶ 48.)

Rudeen alleges exclusions that are wholly (ECF No. 26 at ¶ 35.) She states that intentionally cited policy exclusions wholly inapplicable to [her] claim for coverage knowing full well that [Rudeen], like most insureds, is unsophisticated with respect Id. at ¶ 36.) She claims t the ISO, Allstate has knowledge of cases such as Bacewicz v. NGM Insurance . . . where the

plaintiffs were awarded judgment against the insurer on a concrete decay claim based on policy Id. at ¶ 50.) According to Rudeen, Allstate that the collapse of basement walls of a building caused by hidden decay or by the use of faulty or defective materials or methods of construction is not a covered loss (Id. at ¶ 40.)

Based on these allegations, Rudeen seeks a declaratory judgment that Allstate has a duty to provide coverage and has brought claims of breach of contract, breach of the covenant of good faith and fair dealing, and violation of the Connecticut Unfair Insurance Practices Act, Conn. Gen. Stat. §§ 38a-815 et seq., (CUIPA) and the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. §§ 42-110a et seq., (CUTPA) against Allstate. Allstate has moved to dismiss all of these claims. (ECF No. 28.)

B. Specific Allegations and Claims Against Utica First

Utica . . . of the condition of the basement walls 119 Utica of the condition, the

plaintiff made a timely claim for coverage of the loss in accordance with the terms of all the homeowne Utica Id. at ¶ 120.) Utica First denied her claim on July 11, 2016. (Id. at ¶ 121.) Id. at ¶¶ 124 25.)

Rudeen alleges that Utica exclusions that are wholly (ECF No. 26 at ¶ 129.) Rudeen further alleges that Utica intentionally cited policy exclusions wholly inapplicable to [her] claim for coverage knowing full well that [Rudeen], like most insureds, is unsophisticated Id. at ¶ 130.) She states suffered to her home was not covered solely to preserve its own assets by avoiding payment for a

covered loss. (Id. at ¶ 131.) as Rudeen. (Id. at ¶ 140 (citing Michael Willenborg, et al. v. Unitrin Preferred Ins. Co., et al.,

Tolland Superior Court Docket No. TTD-CV-16-6010936-S).)

Based on these allegations, Rudeen has brought claims of breach of contract, breach of the covenant of good faith and fair dealing, and violation of CUIPA and CUTPA against Utica First. Utica First has moved to dismiss all of these claims. (ECF No. 36.)

II. Legal Standard

A. Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), the Court must determine whether the plaintiff enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under Twombly, but not conclusory allegations when evaluating a motion to dismiss. Twombly, 550 U.S. at 572. The Court must l reasonable inferences in favor of the non- n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008) When a complaint is based solely on wholly conclusory allegations and provides no factual support for such claims, it is appropriate to grant defendants motion to dismiss. Scott v. Town of Monroe, 306 F. Supp.2d 191, 198 (D. Conn. 2004) away conclusory allegations, there must remain sufficient well-pleaded factual allegations to

In re Fosamax Products Liab. Litig., No. 09-cv-1412 (JFK), 2010 WL 1654156, at *1 (S.D.N.Y. Apr. 9, 2010).

In deciding a Rule 12(b)(6) motion, I may consider documents attached to, integral to, or incorporated by reference in the complaint. See Fed. R. Civ. P. 10(c); Chambers v. Time Warner, he court may nevertheless consider it where the complaint relies heavily upon its terms and effect,

B. Interpreting Insurance Policies

reted by the same general rules that govern the Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5 (2008) (citation and quotation marks omitted).

If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning . . . . When interpreting an insurance policy, we must look at the contract as a whole, consider all relevant portions together and, if possible, give As with contracts generally, a provision in an insurance policy is ambiguous when it is reasonably susceptible to more than one reading. Under those circumstances, any ambiguity in the terms of an insurance policy must be construed in favor of the insured because the insurance company drafted the policy. Id. at 5 6 (citations, quotation marks, and alterations omitted).

III. Analysis

A. Allstate has moved to dismiss all of against it. It argues that the unambiguous language of its policy does not cover alleged loss and that, because the policy does not afford coverage, Rudeen has failed to state a claim for breach of contract, breach of the implied covenant of good faith and fair dealing, or a violation of CUIPA or CUTPA, and has failed to show that the Court should enter a declaratory judgment in her favor. (See ECF No. 28 at 2.) For the reasons that follow, I agree.

1. Breach of Contract

a. Applicable Policy from 1996 through 2002 (ECF No. 26 at ¶ 9), Allstate attached a single policy (the Allstate Policy) effective beginning May 3, 2001 to its motion to dismiss. (ECF No. 29-3.) Rudeen does not allege that a policy other than the Allstate Policy applies to her claims or that Allstate incorrectly relied on that policy in its denial letter.

Rather, Rudeen relies on the provisions of the Allstate Policy throughout her response. (See ECF No. 34.) As a result, although Rudeen did not attach the Allstate Policy to her complaint, that policy is integral to her claims, and I must decide whether she has stated plausible claims in light of that policy.

29-3 at 24 25.) Your Id. at 24.)

Losses We Cover Under Coverages A and B: We will cover sudden and accidental direct physical loss to property as described in Coverage A Dwelling Protection and Coverage B Other Structures Protection except as limited or excluded in this policy. (Id. at 29.) The Policy continues:

Losses We Do Not Cover Under Coverages A and B: We do not cover loss to the property described in Coverage A Dwelling Protection or Coverage B Other Structures Protection consisting of or caused by: . . . . 12. Collapse, except as specifically provided in Section I Additional Protection, . . . In addition, we do not cover loss consisting of or caused by any of the following: 15. a) wear and tear, aging, marring, scratching, deterioration, inherent vice, or latent defect; . . . d) rust or other corrosion, mold, wet or dry rot; . . . g) settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; . . . .

22. Planning, Construction or Maintenance, meaning faulty, inadequate or defective: . . . c) materials used on repair, construction, renovation or remodeling . . . . (Id. at 30 31.)

in pertinent part:

11. Collapse We will cover: (a) the entire collapse of a covered building structure; (b) the entire collapse of part of a covered building structure; and (c) direct physical loss to covered property caused by (a) or (b) above. For coverage to apply, the collapse of a building structure specified in (a) or (b) above must be a sudden and accidental direct physical loss caused by one or more of the following: . . . (b) hidden decay of the building structure; (c) hidden damage to the building structure caused by insects or vermin; . . . (f) defective methods or materials used in construction, repair, remodeling or renovation. Collapse does not include settling, cracking, shrinking, bulging or expansion. (ECF No. 29-3 at 38.)

b. Rudeen claims that her alleged loss is covered under the above-quoted collapse provision (ECF No. 29-3 at 38 ¶ 11.) The apply, the collapse of a building structure Id.) Rudeen argues the [Allstate Policy] appear to provide coverage for the collapse of a building structure . . . or part of a bui a term the Connecticut

Beach v. Middlesex Mut. Ass. Co., 205 Conn. 246, 252 (1987).) Rudeen argues that her complaint alleges such a structural impairment caused by one of perils hidden home. (Id.; ECF No. 26 not

necessarily denote temporal abruptness, because many of the enumerated perils in the collapse provision complaint passes muster

becom[ing] dislodged and fall[ing] to 20.) I do not find

these arguments to be persuasive.

, which requires that

Buell Indus., Inc. v. Greater New York Mut. Ins. Co., 259 Conn. 527, 536 (2002). Reviewing dictionary definitions, the Court Id. at 540 (emphasis added). But it concluded

ed an element of unexpectedness and thus mere surplussage. Id. at 540 41.

Following the logic of Buell, this Court and state trial courts have ruled in favor of insurance companies in concrete decay cases where insurance policies require or otherwise contain language requiring that the loss be temporally abrupt,

including in cases involving the policy language at issue here. See, e.g., Manseau v. Allstate Ins. Co., 16-cv-1231 (MPS), 2017 WL 3821791, at *3 *5 (D. Conn. Aug. 31, 2017) (granting Adams v. Allstate Ins. Co., No. 3:16-CV-1360 (JBA), 2017 WL 3763837, at *4 (D. Conn. Aug.

29, 2017) (same); Clough v. Allstate Ins. Co., No. 3:17-CV-140 (JBA), 2017 WL 3763841, at *5 (D. Conn. Aug. 29, 2017) (same); Miller v. Allstate Ins. Co., No. 3:16-CV-2059 (JBA), 2017 WL 3763425, at *4 (D. Conn. Aug. 29, 2017) (same); Metsack v. Liberty Mut. Fire Ins. Co., No. 3:14- CV-1150 (VLB), 2017 WL 706599, at *7 (D. Conn. Feb. 21, 2017) (granting motion for summary Alexander v. General Ins. Co. of America, No. 3:16-CV-59 (SRU), transcript of oral ruling, ECF No. 22 at 23 (D. Conn. July 7, 2016) (granting motion to dismiss where policy at issue defined collapse as an Jemiola v. Hartford Cas. Ins. Co., No. CV-15-6008837-S, 2017 WL 1258778, at *1 (Conn. Super. Ct. Mar. 2, 2017) (granting summary judgment where Toomey v. Central Mut. Ins. Co., Docket No. CV-15-6009841-S (Conn. Super. Ct. Aug. 3, 2017) (unpublished) (granting summary . I, again, reach must be a

event.

some of the covered cur gradually rests on a misreading of the plain language of the Allstate Policy. (ECF No. 41 at 14 15.) That language

29- st be a sudden and accidental direct physical loss caused by . . . The Court in Alexander explained it as follows during

Mr. Lindequist: But the collapse has to be caused by one of the enumerated perils, one of which is the cave[-in] that is hidden from view . . . . F have a collapse or falling in. The fact that it was caused by termites and it was a

Alexander v. General Ins. Co. of America, No. 3:16-cv-59, transcript of oral ruling, ECF No. 22- 2 at 13 14 (D. Conn. July 7, 2016). 1

The Allstate Policy unambiguously affords coverage once the specified hidden processes, such as decay or insect infestation, result in a sudden and accidental collapse. See id. at 13 14; see also Metsack v. Liberty Mut. Fire Ins. Co., No. 14-cv-1150 (VLB), 2017 WL 706599, at *7 (D. Conn. Feb. 21, 2017). 2

1 I recognize that the policy language in Alexander was somewhat different than that at issue here, but the point is that there is nothing necessarily ambiguous about a provision that affords coverage for temporally abrupt events caused by gradual processes. 2 In support of her position, Rudeen urges the Court to adopt the reasoning of Kelly v. Balboa Ins. Co., 897 F. Supp. a policy that covers insect damage rendered the provision ambiguous). Unlike the Connecticut Buell, the Kelly decision is not binding on this court. I therefore agree with other courts in this District, holding that, in this context, sudden unambiguously means temporally abrupt. Rudeen also relies on Dalton v. Harleysville Worcester Mut. Ins. Co. provision did not require a sudden event to afford coverage. By its own terms, however, Dalton is distinguishable because the collapse provision there event and did not otherwise qualify the term 557 F.3d at 90.

Because as used in the collapse provision of the Allstate Policy, unambiguously means temporally abrupt, Rudeen must have plausibly alleged that her claimed loss occurred abruptly not merely unexpectedly for coverage to have applied. Even when her allegations are construed in the light most favorable to her, Rudeen has not alleged plausibly that any damage to her home occurred temporally abruptly. To the contrary, the loss described in the complaint has involved While Rudeen does allege that weakens, external forces may cause a series of sudden events where the walls bulge and shift in

some increment or pieces of concrete become dislodged and fall to the floor (ECF No. 26 at ¶ 20 (emphasis added)), at most that statement alleges that the gradual process of decay she describes could possibly cause visible effects that happen temporally abruptly; she does not allege that any such temporally abrupt events have actually occurred in her house. only underscores that the loss here involves

a gradual process rather than a sudden event. (Id. at ¶ 17.) These allegations do not set forth a plausible claim ECF No. 29- 3 at 38 ¶ 11.)

Further, the Allstate Policy specifies that 29-3 at 29 ¶ 5.) In addition to alleging that her

the reasons discussed above), Rudeen alleges at ¶ 11.) The cracking Rudeen alleges to

have occurred falls squarely within the specific exclusion Case 3:16-cv-01827-JBA Document 44 Filed 03/20/18 Page 13 of 20 in the Allstate Policy provision. (ECF No. 29-3 at 29 ¶ 5.) As a result, For these reasons, her breach of contract claim and her claim for a declaratory judgment both fail.

2. Implied Covenant of Good Faith and Fair Dealing Allstate also has moved to dismiss Count Two, which alleges breach of the implied Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432 (2004) (internal citations, quotation marks, and alterations omitted). To maintain a claim for breach of the implied covenant of good faith and fair dealing, Rudeen must plausibly allege that Allstate acted in bad faith in wrongfully denying coverage for the alleged loss. Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 308 Conn. 760, 794 the implied covenant of good faith and fair dealing, the acts by which a defendant allegedly the contract must (alterations omitted)). iolations of express

duties are necessary to maintai Id. at 797. As a result, the implied

Id. at 795.

Rudeen has alleged that she expected to receive benefits under the Allstate Policy and that acted (ECF No. 26 at ¶¶ 33 41.) Because

I find that Rudeen fails to state a plausible claim for breach of contract against Allstate and that

therefore did not impair her contractual rights under the Allstate Policy, her claim for breach of the implied covenant of good faith and fair dealing also fails.

3. CUIPA/CUTPA Finally, Allstate also moves to dismiss Count Three, which alleges a violation of CUIPA and CUTPA. d on a substantive violation of Karas v. Liberty Ins. Corp., 33 F. Supp.3d 110, 117 (D. Conn. 2014). To state a CUIPA/CUTPA claim, the plaintiff must plausibly allege

Belz v. Peerless Ins. Co., 46 F. Supp. 3d 157, 165 (D. Conn. 2014). Rudeen relies on a CUIPA provision making it an unfair insurance practice to fail to attempt good faith to effectuate prompt, fair[,] and equitable settlements of claims in which liability 38a-816(6)(F).) She alleges that Allstate gave her a false and misleading reason for the has regularly been engaged in refusing to attempt in good faith to effectuate prompt, fair[,] and , and had knowledge of numerous claims and lawsuits resulting from similar concrete decay through participation in the ISO. (ECF No. 26 at ¶¶ 45 54). But refusing to settle a claim that the plain terms of the Allstate Policy do not cover is not an unfair insurance practice. And interpretation of its policy is correct, there can be no violation of CUIPA/CUTPA. Zulick v. Patrons Mut. Ins. Co., 287 Conn. 367, 378 (2008)

interpretation of an insurance policy was correct). Rudeens CUIPA/CUTPA claim is therefore dismissed.

B. otion to Dismiss

Utica First also It argues that Rloss was excluded from its policy coverage in unambiguous terms and thus that Rudeen has failed to state claims for breach of contract, breach of the implied covenant of good faith and fair dealing, or for a violation of CUIPA or CUTPA. (See ECF No. 36 at 1 2.) For the reasons that follow, this motion is denied.

1. Breach of Contract The parties do not agree that the 2015 2016 policy Utica First attached to its motion to dismiss is the only applicable policy. Rudeen alleges that (ECF No. 26 at ¶ 108.) She

Id. at ¶ 110.) She id. at ¶ 111) and that in accordance with the terms of all issued to her by Utica May 5, 2016 Id. at ¶¶ 119 120 (emphasis

added).) contrary to the express provision of the homeowners policies er the Id.

at ¶¶ 124 25 (emphases added).)

Utica First attached to its motion to dismiss a Rudeen purchased from it in 2015 (the Utica First Policy). (ECF No. 36 at 18 19.) The Utica First Policy was effective from May 7, 2015 until May 7, 2016. (Id. at 8.) In her opposition brief, Rudeen argues that Utica offers no legal authority or analysis suggesting that this is the sole policy triggered by the progressive decay condition alleged in the First Amended Complaint, nor does Utica offer any

authority or analysis suggesting that the . . . claimed loss occurred during the period of this policy. -]based policy and applies only to losses that occur during the policy period. (ECF No. 39 at 7 (citing ECF No. 36 at 1).) Utica First did not file a reply and thus has made no attempt to show that the 2015 2016 policy is the only policy claim or that her claimed loss is not covered under any subsequent policy. Therefore, drawing all I find that she has alleged that the damage is continuing and potentially covered by more than one Utica First Policy, including one that is not before the Court.

Even if it was clear that the claims, again drawing must be construed in her favor. Connecticut Medical Ins. Co., 286 Conn. at 5. The Utica First Policy states, under Coverage A, . . . a - (ECF No. 36 at 57). The complaint plausibly pleads a

risk[] of direct physical loss to an addition, and the only specific exclusion on which Utica First relies [w]e do not pay for loss caused by the settling, cracking, shrinking, bulging[,] or expanding of a building structure or mobile home, pavements, patios[,] or other outdoor structures (id. at 57 (emphasis added) does not unambiguously foreclose coverage of the alleged loss. Specifically, Rudeen argues that the above-quoted exclusion for cracking is inapplicable to her claim racking was caused by cracking but that the cracking condition is caused by decay and consists of the impairment of the structural integrity. . . . [She] merely alleges that the decay condition results in the manifestation of cracking on the face of the No. 39 at 9.) allegations Case 3:16-cv-01827-JBA Document 44 Filed 03/20/18 Page 17 of 20 addition was due to a chemical compound found [in concrete supplied by the J.J. Mottes Company] (ECF No. 26 at ¶ 13) fall outside the exclusion on which Utica First relies. Although some courts in this district have suggested that policy language excluding cracking excluded coverage for concrete decay, the exclusion in the Utica First Policy language is notably narrower, making no mention of losses consisting of cracking. See Adams v. Allstate Ins. Co., 276 F. Supp.3d 1, 5 (D. Conn. 2017) dismiss and noting that explicitly excludes co

ceilings ; Clough v. Allstate Ins. Co., 279 F. Supp.3d 387, 392 (D. Conn. 2017) (same); Miller v. Allstate Ins. Co., 279 F. Supp.3d 381, 386 (D. Conn. 2017). Because Rudeens alleged loss was a direct physical loss and was not caused by cracking, it sets forth a plausible claim for coverage. Therefore, drawing all inferences in Rudeens favor, I s motion to dismiss .

2. Implied Covenant of Good Faith and Fair Dealing Rudeen has alleged that she expected to receive benefits under the Utica First Policy and that Utica First the damage suffered to the base at ¶¶ 33 41.) As

I have already found, Rudeen has stated a plausible claim for breach of contract against Utica First. She also has alleged that Utica First intentionally cited policy exclusions wholly inapplicable to the plaintiffs claim for coverage knowing full well that the plaintiff, like most insureds, is unsophisticated with respect to the complex language contained in insurance policies. (ECF No. 26 at ¶ 130.) Under the law stated above in reference to Rudeens claims against Allstate, this suffices to allege a claim for breach of the covenant of good faith and fair dealing because Rudeen

has alleged that Utica First took actions to allegedly impede[] [Rudeens] right to receive benefits and that those actions were taken in bad faith. Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 308 Conn. 760, 794 95 (2013) Therefore, claim as well.

3. CUIPA/CUTPA Finally, Rudeen again relies on a CUIPA provision making it an unfair insurance practice good faith to effectuate prompt, fair[,] and equitable settlements of claims in which liability has become reasonably clear to bring a CUIPA/CUTPA claim against Utica First, based on this alleged breach of contract. (ECF No. 26 at ¶ 141. (citing Conn. Gen. Stat. § 38a- 816(6)(F).) She alleges that Utica First . (ECF No.

26 at ¶¶ 138 139.) She supports her allegation that this is a general business practice by citing a case in which Utica First denied coverage to one [] other homeowner affected with the same damage as that suffered by the plaintiff. (Id. at ¶ 140 (citing a Connecticut Superior Court case, Michael Willenborg, et al. v. Unitrin Preferred Ins. Co., et al., Tolland Superior Court Docket No. TTD-CV-16-6010938-S).)

Under the law stated above in relation to the CUIPA/CUTPA claim against Allstate, because I find that Rudeen has stated a plausible claim for breach of contract and because she has made these additional allegations regarding a general business practice and cited at least one other similar denial of coverage in support of that allegation, CUIPA/CUTPA claim against Utica First is plausible. Therefore, I claim.

IV. Conclusion

For the reasons stated above, I of the Amended Complaint (ECF No. 28) and DENY

through IX of the Amended Complaint. (ECF No. 36.) Because no other claims remain against it,

It is SO ORDERED. /s/ Michael P. Shea, U.S.D.J. Dated: Hartford, Connecticut

March 20, 2018

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