Opinion
No. CV 06 5000709 S
November 9, 2009
MEMORANDUM OF DECISION
The defendants, Liberty Mutual Group, Inc. and Peerless Insurance Company, move for summary judgment in this breach of insurance contract action brought by the plaintiffs, Kathleen and David Waters.
Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that no genuine dispute as to material facts exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
The following circumstances appear undisputed. The defendants contracted to provide homeowner's insurance for the plaintiffs' residence in Somers, Connecticut. The plaintiffs acquired the home in 1989. The house was built in 1984. In 2004, the plaintiffs noticed that the sheetrock covering a basement wall began to bulge inward. Removal of that sheetrock disclosed that the foundation wall was bowing inward, horizontal cracks had developed in the concrete, the interior surface of the concrete wall was flaking off, and discoloration from mineral deposits was evident. The plaintiffs filed a claim for reimbursement for repair costs under the policy, and the defendants denied the claim.
Although the supporting and opposing memoranda addressed other issues, at oral argument the defendants confined their argument to the issue of whether coverage exists under Additional Coverage subparagraph 8.b. for "hidden decay" when subparagraph 8.h. specifically restricts coverage for losses "involving collapse of a building or any part of a building caused by . . . [u]se of defective material or methods in construction . . . if the collapse occurs during the course of the construction . . ." (emphasis added). The defendants contend that there is no genuine dispute regarding the process of collapse nor that the collapse occurred well after construction was completed.
The plaintiffs counter that their policy affords coverage under subparagraph 8.b. for hidden decay unrestricted by any language set forth in subparagraph 8.h. pertaining to construction deficiencies. They also contend that material, factual controversy exists as to whether the cause of the deterioration of the concrete wall was the result of defective construction material or methods.
The court addresses the plaintiffs' second contention first and rejects it. The documentary evidence submitted by the parties demonstrates that there is no genuine dispute as to whether the deterioration of the concrete foundation wall was caused by inadequate construction materials or techniques. All the experts' determinations are consistent and compel only one conclusion on this issue.
The structural engineers for both sides agree that the foundation wall had sufficient thickness and height to withstand the forces which would typically be exerted on such a wall without any bulging or horizontal cracking. They concur that the bowing, cracking, and flaking off was caused by a failure of the concrete to be of the expected hardness and strength.
The plaintiffs' own engineer, David A. Carlson, opined that the disintegration of the concrete was precipitated by sulfate contamination. Sulfates react deleteriously within concrete and weaken it. Carlson consulted with the materials scientists at Wiss, Janney, Eistner Associates, Inc. (WJE). Those specialists determined that the concrete in the collapsing wall had three times the normal levels of sulfate compounds. It is uncontroverted that the unusually high level of sulfates in the concrete has only two possible sources, viz, permeation of the sulfates from surrounding soil or the original chemical components of the concrete.
The plaintiffs' experts tested the soils adjacent to the crumbling wall and discovered that their sulfate content was negligible. Carlson remarked in his report, "it is concluded the source of the sulfate causing the deterioration of the concrete is a constituent of the concrete itself." A consultant from WJE, on which the plaintiffs' engineer relied, Susanne Pappas, agreed stating "[t]herefore, the sulfate content of the soil would not be expected to contribute to any observed degradation of concrete in contact with it."
All of the plaintiffs' experts deduced that whoever mixed the original concrete for pouring used an "excessively high water to cement ratio." The WJE report notes, "[t]he high water to cement ratio is also associated with increased water permeability of the cementitious matrix." Furthermore, this "allows aggressive ions, such as salts or sulfates to more easily penetrate into the concrete resulting in increased risk of deleterious reaction within the concrete or corrosion of embedded reinforcing or metals."
Specifically addressing the plaintiffs' concrete wall, the WJE report finds that the disintegrating concrete "has experienced deleterious expansion due to sulfate attack." The report observes that the very high water to cement ratio of the original mixture facilitated significant migration of sulfates throughout the concrete wall.
The conclusion is inescapable that no genuine issue of fact exists regarding whether the sulfate contamination caused the collapse in question, or that contamination was inherent in the original mixture's constituents or processing at the time of its preparation. Consequently, if subparagraph 8.h. of the Additional Coverage section controls, no coverage extends to this type of collapse because the degradation developed gradually over a period of years rather than during construction as required for coverage under subparagraph 8.h.
However, it is unclear whether the broad coverage category of "hidden decay" set forth in subparagraph 8.b. is restricted by the more limited coverage afforded by subparagraph 8.h. which only governs collapses during construction. Every collapse caused by hidden decay is, in the widest sense, the result of deficient construction because, presumably, an alternative method of construction or choice of materials could have avoided the conditions which promoted the decay. It should be noted that subparagraph 8.h. has no negligence component, but instead applies to defective material or methods.
The interplay of coverage or noncoverage between subparagraphs 8.b. and 8.h. is murky. When insurance coverage is defined equivocally, the interpretation of contract language is against the insurance company. Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250 (1987).
In order to prevail on a motion for summary judgment, the movants must not only eliminate from the field any material, factual controversy but must also demonstrate they are entitled to judgment as a matter of law. At least one federal district court has construed very similar contract language to mean that "hidden decay" is covered by the policy despite the fact that a contributing factor to that decay was defective construction design. Allstate Insurance Co. v Forest Lynn Homeowners Association, 892 F.Sup. 1310, 1314-18 (W.D. Wash. 1995).
The motion for summary judgment is, therefore, denied on the basis that the defendants have failed to establish entitlement to judgment as a matter of law.