Jolanta Dadura et al. v. NGM (2012)

MEMORANDUM OF DECISION ON SECOND MOTION FOR SUMMARY JUDGMENT

The plaintiffs Jolanta Dadura and Rafal Kosciusziewicz brought this action against the defendant NGM Insurance Company after the defendant failed to provide coverage for the collapse of a retaining wall on the property of the plaintiffs.   The defendant denied coverage on the grounds that the collapse of the retaining wall was not a covered event under the policy.   The defendant previously filed a Motion for Summary Judgment but failed to append the insurance policy to its moving papers (and the plaintiffs did not supply it either).   The defendant has now filed a second Motion for Summary Judgment, arguing that there are no material facts in dispute over the coverage issue, and that coverage is not available for this event under the terms of the insurance policy, which it has appended to its moving papers.   The plaintiffs oppose summary judgment.

THE LANGUAGE OF THE INSURANCE POLICY

On June 21, 2009, a retaining wall on the plaintiffs' real property collapsed.   Exhibit C, Memorandum in Support of Summary Judgment, October 17, 2011, # 120, Deposition of Jolanta Dardura.   Neither of the plaintiffs has any information on the cause of the wall collapse.   Exhibit C, and Exhibit B, Memorandum in Support of Summary Judgment, October 17, 2011, # 120, Deposition of Rafal Kosciusziewicz.   The retaining wall was not part of any other structure on the property.   Exhibit G, id., Deposition of Rafal Kosciusziewicz.

The homeowners insurance policy that was in force at the time of the collapse, Exhibit A, Motion for Summary Judgment, February 10, 2012, # 127, contains the following provisions that relate to the collapse of a retaining wall that is not also part of another structure:

Coverage B—Other Structures

We cover other structures on the residence premises set apart from the dwelling by clear space ․ This coverage does not apply to land, including land on which the other structures are located.  [Policy, page 2 of 14.]

Additional Coverages ․ [page 3 of 14]

8.  Collapse:  We insure for direct physical loss to covered property involving collapse of a building or any part of a building caused by only one or more of the following:

a.  Perils Insured Against in Coverage C—Personal Property

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;

f. Use of defective material or methods in construction, remodeling or renovation if the collapse occurs during the course of construction, remodeling or renovation.   Loss to [a] ․ retaining wall ․ is not included under items b., c., d., e., and f. unless the loss is a direct result of the collapse of a building.  [Page 4 of 14.]

As for the losses under sub-paragraph a, Coverage C—Personal Property, [Page 6 of 14] the claim regarding the retaining wall does not appear to implicate any personal property.   However even if the collapse of the retaining wall were to be construed as a claim as to personal, as opposed to real, property, the coverages in Coverage C are specific only as to the specific perils, as follows:

1.  Fire or lightning;  2. Windstorm or hail;  3. Explosion;  4. Riot or civil commotion;  5. Aircraft;  6. Vehicles;  7. Smoke;  8. Vandalism or malicious mischief;  9. Theft;  10.   Falling objects;  11.   Weight of ice, snow, or sleet which causes damage to property contained in a building;  12.   Accidental discharge or overflow of water or steam;  13.   Sudden and accidental tearing apart, cracking, burning, or bulging (of a system or appliance in a building);  14.   Freezing (of a system or appliance in a building);  15.   Sudden and accidental damage from artificially generated electrical current;  16.   Volcanic eruption.

The plaintiffs point to no other relevant provision of the policy that would provide coverage for this loss.

ENTITLEMENT TO SUMMARY JUDGMENT

The court has previously set forth the standards governing motions for summary judgment in its earlier decision regarding summary judgment, # 126.   The defendant has demonstrated that there is no part of the insurance policy issued to the plaintiffs that covers the damage from the collapsed retaining wall.   The plaintiffs appear to concede as much in their brief opposing this second motion for summary judgment.   Because the policy does not cover this loss, the plaintiffs cannot recover for breach of contract, as is alleged in the First Count of their complaint.   Nor can the plaintiffs prevail on the claims for violation of CUTPA, for bad faith, or for negligent infliction of emotional distress, as are alleged in the Second, Third, and Fourth Counts of the complaint, because the basis for those claims is that there was a wrongful denial of insurance coverage.

The plaintiffs also claim that an unknown individual, who is otherwise unidentified, assured them before the issuance of the insurance policy that the retaining wall was covered under the policy.   However the plaintiffs have submitted no competent evidence as to the identity of the unknown individual or of that person's relationship to the defendant.   That being so, there is no competent evidence that the defendant assured the plaintiffs that there would be insurance coverage for all unspecified perils relating to damage at the site of the retaining wall.

CONCLUSION

The defendant is entitled to summary judgment as to all counts, and judgment shall enter accordingly.

Patty Jenkins Pittman, Judge

Pittman, Patty Jenkins, J.