Karas v. Liberty Ins. Corp.

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STEVEN KARAS ET AL. v. LIBERTY
INSURANCE CORPORATION
(SC 20149)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiffs, whose home was insured by the defendant insurance com-
pany, sought to recover damages from the defendant in an action brought
in the United District Court for the District of Connecticut. The plaintiffs
alleged, inter alia, that the defendant had breached certain provisions
of the applicable homeowners insurance policy by declining coverage
for the purported collapse of their concrete basement walls. The founda-
tion to the plaintiffs’ home had been constructed with defective concrete,
causing it to crack and deteriorate prematurely. Although the plaintiffs’
basement walls did not actually collapse, they suffered from severe
cracking, were bowing inward, and required wood shoring for reinforce-
ment, without which the walls could become unsafe at some point in
the future. The plaintiffs claimed that they were covered under the
policy because the deterioration of the concrete in their basement walls
constituted hidden decay that had so substantially impaired their struc-
tural integrity that they were in a state of collapse, as that term had
been defined in Beach v. Middlesex Mutual Assurance Co. (205 Conn.
246), in which this court concluded that that the term ‘‘collapse’’ in a
homeowners insurance policy, when otherwise undefined, is sufficiently
ambiguous to include coverage for any substantial impairment of the
structural integrity of an insured’s home. The defendant filed a motion
for summary judgment, asserting, inter alia, that the plaintiffs’ loss was
excluded under the provisions of the policy that expressly precluded
coverage for the collapse of a building subject to certain exceptions
that were inapplicable and that, alternatively, the plaintiffs’ claim fell
within an express exclusion in the policy for loss caused by the collapse
of the home’s foundation, of which, according to the defendant, the
home’s basement walls were a part. The District Court denied the defen-
dant’s motion as to the plaintiffs’ breach of contract claim, and, there-
after, that court certified a question of law to this court concerning what
constitutes substantial impairment of structural integrity for purposes of
applying the collapse provision of the plaintiffs’ homeowners’ insurance
policy. Subsequently, this court issued an order reformulating the certi-
fied question to include additional questions. Held:
1. The substantial impairment of structural integrity standard, as set forth
in Beach, was applicable to the collapse provision of the plaintiffs’
homeowners insurance policy: the plaintiffs’ policy having failed to
define the term ‘‘collapse’’ or to limit collapse coverage in words that
unmistakably connoted an actual collapse, there was ambiguity per-
taining to that term, and a policy’s use of the term ‘‘collapse,’’ when not
clearly defined, is fairly susceptible of being interpreted as including
settling or cracking that results in the substantial impairment of the
home’s structural integrity; moreover, although the collapse provision
in the plaintiffs’ policy purported to exclude settling and cracking from
its purview, it did not express a clear intent to exclude coverage for a
collapse that ensues from what initially begins as unexceptional settling
or cracking and what later develops into a far more serious structural
infirmity culminating in an actual or imminent collapse.
2. This court concluded that, to satisfy the substantial impairment of struc-
tural integrity standard, an insured whose home has not actually col-
lapsed must present evidence demonstrating that the home nevertheless
is in imminent danger of falling down or caving in, that is, in imminent
danger of an actual collapse; such a conclusion was implicit in this
court’s holding in Beach, as the cases on which the court in Beach relied
for the proposition that the term ‘‘collapse’’ could encompass something
short of an actual collapse each involved buildings, or parts thereof,
that, like the house in Beach, were in imminent danger of collapsing or
that otherwise had been declared unsafe for their intended purposes;
moreover, the substantial impairment standard is not satisfied merely
by evidence that a building will eventually fall down, particularly when
it is not in immediate danger of collapsing and it likely can be safely
occupied for years, if not decades, into the future.
3. The coverage exclusion in the plaintiffs’ homeowners insurance policy
for the collapse of the ‘‘foundation’’ unambiguously includes the base-
ment walls of the plaintiffs’ home: basement walls invariably are consid-
ered part of a building’s foundation in state and local building codes,
laypersons with no special knowledge of building codes or the intricacies
of home construction generally understand that the concrete basement
walls of a home are part of its foundation, definitions of the term
‘‘foundation’’ in dictionaries circulating at or around the time the applica-
ble homeowners insurance policy was issued by the defendant to the
plaintiffs support the view that concrete basement walls, and not just
the footings beneath them, comprise a home’s foundation, and various
governmental entities consistently have referred, in public pronounce-
ments concerning Connecticut’s crumbling foundations problem, to the
affected basement walls as crumbling foundations; moreover, this court,
for more than one century, has used the term ‘‘foundation wall’’ when
referring to the basement wall of a building, a reference to the term
‘‘foundation’’ in an exclusion in the plaintiffs’ homeowners insurance
policy led to the conclusion that that term must mean more than just
a footing, and this court rejected the reasoning of those federal and
state courts that have concluded that the term ‘‘foundation’’ reasonably
may be understood to refer solely to the footings beneath the base-
ment walls.
Argued December 18, 2018—officially released November 12, 2019*
Procedural History
Action to recover damages for, inter alia, breach of
an insurance contract, and for other relief, brought to
the United States District Court for the District of Con-
necticut, where the court, Underhill, J., granted in part
the defendant’s motion for summary judgment; there-
after, the court, Underhill, J., certified a question of law
to this court concerning the application of Connecticut
insurance law; subsequently, this court reformulated
the certified question.
Michael D. Parker, pro hac vice, with whom was
Jeffrey R. Lindequist, for the appellants (plaintiffs).
Robert A. Kole, pro hac vice, with whom was Kieran
W. Leary, for the appellee (defendant).
Paul R. Doyle and Kevin P. Walsh filed a brief for
Connecticut Senator Paul R. Doyle as amicus curiae.
Wystan M. Ackerman filed a brief for the American
Insurance Association et al. as amici curiae.
Thomas O. Farrish filed a brief for the Insurance
Association of Connecticut as amicus curiae.
Ryan M. Suerth, Marilyn B. Fagelson, Proloy K. Das
and Sarah Gruber filed a brief for United Policyholders
as amicus curiae.
Opinion
PALMER, J. In Beach v. Middlesex Mutual Assurance
Co., 205 Conn. 246, 532 A.2d 1297 (1987), this court
determined that the term ‘‘collapse’’ in a homeowners
insurance policy, when otherwise undefined, ‘‘is suffi-
ciently ambiguous to include coverage for any substan-
tial impairment of the structural integrity’’ of the
insureds’ home. Id., 252. In the present case, which
comes to us on certification from the United States
District Court for the District of Connecticut; see Gen-
eral Statutes § 51-199b (d);1 we consider whether that
definition pertains to the collapse provisions of the
homeowners insurance policy issued by the defendant,
Liberty Insurance Corporation, to the plaintiffs, Steven
Karas and Gail Karas, who claim coverage for the crack-
ing and crumbling of their concrete basement walls,
and, if the definition set forth in Beach does apply,
what degree of deterioration constitutes a ‘‘substantial
impairment of the structural integrity’’ of those walls
sufficient to trigger coverage. Beach v. Middlesex
Mutual Assurance Co., supra, 252. We also consider
whether, under Connecticut law, the coverage exclu-
sion in the plaintiffs’ policy for the collapse of the
home’s ‘‘foundation’’ unambiguously includes the base-
ment walls of the home. We conclude, first, that the
Beach standard applies to the plaintiffs’ policy, second,
that the ‘‘substantial impairment of structural integrity’’
standard requires proof that the home is in imminent
danger of falling down, and, third, that the term ‘‘founda-
tion’’ unambiguously encompasses the home’s base-
ment walls.2
The record certified by the District Court contains
the following undisputed facts and procedural history.
The plaintiffs, who purchased their home in the town
of Vernon in 2010,3 are among hundreds of homeowners
in northeastern Connecticut whose foundations were
constructed using defective concrete manufactured by
J.J. Mottes Concrete Company (Mottes). According to
a study commissioned by the state of Connecticut and
conducted by the Department of Consumer Protection,
the stone aggregate used in Mottes concrete between
1983 and 2010 contained significant amounts of pyrrho-
tite, a ferrous mineral that oxidizes in the presence of
water and oxygen to form expansive secondary miner-
als that crack and destabilize the concrete, resulting in
its premature deterioration. See Department of Con-
sumer Protection, State of Connecticut, Report on Deter-
iorating Concrete in Residential Foundations (December
30, 2016) pp. 1, 7–9 (Report on Deteriorating Concrete in
Residential Foundations), available at http://crcog.org/
wp-content/uploads/2016/12/report_on_deteriorating_
concrete_in_residential_foundations.pdf (last visited
November 6, 2019).
In October, 2013, the plaintiffs discovered that their
basement walls were cracking and crumbling in the
manner typical of Mottes concrete. On November 15,
2013, they submitted a claim to the defendant, which
it denied. Thereafter, the plaintiffs commenced an
action in the United States District Court for the District
of Connecticut, alleging that the defendant had
breached the collapse provisions of the policy by declin-
ing to compensate them for the purported collapse of
their basement walls. The plaintiffs also alleged a
breach of the covenant of good faith and fair dealing
and violations of the Connecticut Unfair Insurance
Practices Act (CUIPA), General Statutes § 38a-815 et
seq., and the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq.
In support of their claims, the plaintiffs relied on the
following provisions in their homeowners insurance
policy: ‘‘SECTION I—PERILS INSURED AGAINST . . .
We insure against risk of direct loss to property
described in Coverages A and B only if that loss is a
physical loss to property. We do not insure, however, for
loss . . . [i]nvolving collapse, other than as provided
in Additional Coverage 8 . . . .’’ Additional Coverage
8, in turn, provides in relevant part: ‘‘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. [Certain perils
identified elsewhere in the policy, including fire, light-
ning, windstorm, hail, explosion, riot, civil commotion
and volcanic eruption]; b. [h]idden decay; c. [h]idden
insect or vermin damage; d. [w]eight of contents, equip-
ment, animals or people; e. [w]eight of rain which col-
lects on a roof; or f. [u]se of defective material or meth-
ods in construction, remodeling or renovation if the
collapse occurs during the course of the 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 expan-
sion.’’ According to the plaintiffs, they are entitled to
payment under these policy provisions because the
deterioration of the concrete within their basement
walls constitutes hidden decay that has so substantially
impaired the walls’ structural integrity that they are in
a state of collapse as we defined that term in Beach.
In connection with the present action, the plaintiffs
retained the services of David Grandpre, a structural
engineer who has been retained in more than sixty cases
involving Mottes concrete. In his deposition, Grandpre
testified that the plaintiffs’ foundation had ‘‘the most
severe cracking problem’’ of any of the Mottes founda-
tions he had inspected and that the basement walls were
bowing inward approximately two inches. Grandpre
opined that the chemical reaction occurring within the
concrete cannot be arrested and that the only remedy
is to replace the basement walls. At Grandpre’s recom-
mendation, the plaintiffs installed wood shoring to rein-
force the walls. Grandpre testified that, without the
shoring, the home ‘‘might become unsafe at some time
in the near future.’’ When pressed on when the base-
ment walls might become unsafe, Grandpre responded
that he did not think he could ‘‘say within a reasonable
degree of engineering certainty’’ that the walls will fall
down ‘‘within the next 100 years,’’ although he thought
that it is likely that they will do so within that time
frame ‘‘based on the fact that portions of the wall are
already crumbling and falling to the floor . . . .’’
The defendant filed a motion for summary judgment,
asserting, inter alia, that the loss claimed by the plain-
tiffs is excluded under the provisions of the policy that
expressly preclude coverage for the collapse of a build-
ing unless it results from one of several specified causes,
none of which, the defendant argued, was applicable
to the plaintiffs’ claim. The defendant further argued
that the plaintiffs’ reliance on our definition of the term
‘‘collapse’’ in Beach was misplaced because the collapse
provisions of their policy and the parallel provisions
of the policy at issue in Beach, although similar, are
sufficiently different to render Beach inapplicable to
the present case. The defendant also maintained that,
under Beach, a policyholder cannot establish a substan-
tial impairment of a building’s structural integrity with-
out proof that the building is in imminent danger of
falling down, and, because the basement walls of the
plaintiffs’ home are in no such danger, the plaintiffs
cannot prevail on their claim, even if the Beach standard
is applicable. Finally, the defendant asserted that the
plaintiffs’ claim fell within an express exclusion in the
policy for loss caused by collapse of the home’s founda-
tion because, according to the defendant, it cannot rea-
sonably be disputed that a home’s basement walls are
part of the foundation.
The District Court denied the defendant’s motion for
summary judgment as to the plaintiffs’ breach of con-
tract claim but granted it as to the plaintiffs’ remaining
claims.4 Thereafter, the defendant requested that the
District Court seek this court’s guidance by way of
certification with respect to the following three
questions:
‘‘1. Is ‘substantial impairment of structural integrity’
the applicable standard for ‘collapse’ under the [plain-
tiffs’ homeowners insurance policy] provision at issue?
‘‘2. If the answer to question one is yes, then what
constitutes ‘substantial impairment of structural integ-
rity’ for purposes of applying the ‘collapse’ provision
of [the plaintiffs’ homeowners] insurance policy?
‘‘3. Under Connecticut law, [does] the [term] ‘founda-
tion’ . . . in a [homeowners] insurance policy unam-
biguously include basement walls? If not, and if [that
term is] ambiguous, should extrinsic evidence as to the
meaning of ‘foundation’ . . . be considered?’’5 Karas
v. Liberty Ins. Corp., Docket No. 3:13-cv-01836 (SRU),
2018 WL 2002480, *4 (D. Conn. April 30, 2018).
The District Court granted the defendant’s certifica-
tion request only as to the second question; id., *5;
concluding that guidance as to the meaning of ‘‘substan-
tial impairment of structural integrity’’ was warranted
because ‘‘[n]o Connecticut appellate decision has
squarely applied Beach and arrived at a definition of
‘substantial impairment of structural integrity’ ’’; id., *3;
and because the issue of insurance claims arising from
crumbling basement walls—an extremely distressing
and costly problem that is estimated to have affected
as many as 34,000 homes6—is ‘‘plainly of great impor-
tance to the [s]tate . . . and implicates broad ques-
tions of Connecticut public policy.’’ (Citations omitted;
internal quotation marks omitted.) Id., *3 and n.4. The
District Court, however, declined to certify the first and
third questions, concluding, with respect to the first
question, that, because the collapse provisions of the
policy in the present case do not define the term ‘‘col-
lapse’’ and otherwise are virtually identical to the rele-
vant provisions of the policy at issue in Beach, the
substantial impairment standard applies to the policy
in this case no less than it applied to the policy in Beach.
Id., *4 and n.5. As to the third question, the District
Court determined that certification was unnecessary
because Connecticut federal and state trial courts uni-
formly have rejected insurers’ claims that the term
‘‘foundation’’ unambiguously includes basement walls;
id., *4; those courts have concluded, rather, that the
term also reasonably can be understood to refer solely
to the concrete footing on which the basement walls
rest but does not include the walls themselves.7
Following the District Court’s order certifying the
second question only, the defendant, as authorized by
Practice Book § 82-4, filed an objection to that certifica-
tion order. In particular, the defendant requested that
this court answer, in addition to the question certified
by the District Court, the two questions that the District
Court had declined to certify. In support of this request,
the defendant asserted, with respect to the first ques-
tion, that the District Court incorrectly concluded that
the collapse provision in the plaintiffs’ policy is materi-
ally identical to the collapse provision at issue in Beach.
With respect to the third question, the defendant main-
tained that the District Court’s reliance on Connecticut
Superior Court and United States District Court cases
in declining to certify that question was misplaced
because those cases were wrongly decided and are
contrary to the weight of authority from other jurisdic-
tions holding that a building’s foundation includes its
basement walls. The defendant also argued that,
because no Connecticut appellate decision has
addressed the issue of whether the term ‘‘foundation’’
in a homeowners insurance policy unambiguously
encompasses basement walls, the defendant ‘‘and likely
other insurers . . . will not abandon their argument
[that it does]’’ such that ‘‘a definitive resolution of the
issue [by the Connecticut Supreme Court] that would
apply across all cases’’ would have the salutary effect
of saving the parties in those future cases considerable
time and resources that otherwise would be spent liti-
gating that issue.
In light of the significant number of cases in which
any one or more of the three questions are likely to arise,
we deem it prudent to grant the defendant’s request
and, accordingly, to issue an order reformulating the
District Court’s certified question to include the
remaining two questions.8 Additional facts and proce-
dural history will be set forth as necessary.
I
We begin with the issue of whether we should apply
Beach’s substantial impairment standard to the collapse
provision of the plaintiffs’ homeowners insurance pol-
icy. In support of its claim that we should not, the
defendant contends that the plaintiffs’ policy defines
the term ‘‘collapse’’ with sufficient clarity and, there-
fore, that the Beach standard, which pertains only to
policies that do not contain such a definition of the
term, is not applicable. The defendant further maintains
that, under this court’s reasoning in Beach, the collapse
language used in the plaintiffs’ policy operates to limit
collapse coverage to a catastrophic event characterized
by a sudden and complete falling in of a structure, an
event that concededly has not occurred in the pres-
ent case.
Before considering the applicability of Beach to the
present circumstances, we first set forth certain well
established principles applicable to the interpretation
of a policy of insurance. ‘‘An insurance policy is to be
interpreted by the same general rules that govern the
construction of any written contract . . . . In accor-
dance with those principles, [t]he determinative ques-
tion 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. . . . 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. . . . Under
those circumstances, the policy is to be given effect
according to its terms. . . . When interpreting [an
insurance policy], we must look at the contract as a
whole, consider all relevant portions together and, if
possible, give operative effect to every provision in
order to reach a reasonable overall result. . . .
‘‘In determining whether the terms of an insurance
policy are clear and unambiguous, [a] court will not
torture words to import ambiguity [when] 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. . . . 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.’’ (Internal quotation marks
omitted.) Lexington Ins. Co. v. Lexington Healthcare
Group, Inc., 311 Conn. 29, 37–38, 84 A.3d 1167 (2014).
Finally, in construing an insurance contract, ‘‘[c]ontext
is often central to the way in which policy language is
applied; the same language may be found both ambigu-
ous 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.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Id., 41–42. Mindful
of these guiding principles, we turn to our decision
in Beach.
The issue in that case was whether a house that was
still standing but ‘‘in imminent danger of falling over’’
due to cracks in the foundation; (internal quotation
marks omitted) Beach v. Middlesex Mutual Assurance
Co., supra, 205 Conn. 249; could be deemed to be in a
state of collapse for purposes of applying a homeowners
insurance policy that excluded losses resulting from
‘‘settling, cracking, shrinkage, bulging or expansion’’ of,
among other things, pavement, foundations, walls and
floors, ‘‘unless . . . collapse of a building . . . not
otherwise excluded ensues,’’ in which case the loss
resulting from the collapse was covered. (Internal quo-
tation marks omitted.) Id., 250. The plaintiffs, Carter L.
Beach and Mary Lawton Beach, brought an action
against their insurer, the defendant Middlesex Mutual
Assurance Company (Middlesex), after Middlesex
denied their claim for the alleged collapse of their
house. Id., 247. At trial, which was conducted before a
trial referee, the evidence established that the Beaches
had discovered a crack in one of their basement walls
and notified Middlesex of the problem. Id. Middlesex
sent a claims adjuster to their house to inspect the
damage, and, while conducting the inspection, the
adjuster noticed that the house had actually separated
from the top of the foundation. Id. Nevertheless, Middle-
sex denied the Beaches’ claim on the ground that the
damage to their foundation was the result of settling,
which the insurance policy expressly excluded. Id., 248.
The crack continued to widen and, within three
months, grew to a width of approximately nine inches.
Id. As we explained, the trial referee further found that
the ‘‘wooden support beams on top of the foundation
wall had pulled apart and the concrete floor of the patio
adjacent to the north side of the house had cracked
and fallen in. Concerned over this deteriorating state
of affairs, Carter Beach requested a site visit by [Middle-
sex’] engineer . . . but was told that coverage would
still be denied because no ‘collapse’ of his home had
occurred.’’ Id. Thereafter, the Beaches hired a contrac-
tor to make all necessary repairs to their home; by then,
‘‘the foundation wall had tipped over into the basement
from the top and was no longer supporting the house.’’
Id. ‘‘Because the house never actually caved in [how-
ever], the [Beaches] continued in occupancy during the
period in which [the contractor] undertook the needed
structural repairs. Despite the nonoccurrence of a sud-
den catastrophe, the trial referee heard and found credi-
ble the testimony of a number of witnesses that the
house would have caved in had the plaintiffs not acted
to repair the damage. The trial referee expressly found
that, ‘[g]iven the state of the structure, eventually the
house would have fallen into the cellar.’ The referee
concluded that ‘the foundation in the [Beaches’] house
cracked . . . that the foundation failed structurally,
and that the function of the foundation, both as a sup-
port structure for the house and a retaining wall, had
become materially impaired, constituting collapse.’ ’’
Id., 248–49.
The trial court accepted the report of the trial referee,
adopted the trial referee’s recommendations, and ren-
dered judgment in accordance with the report. See id.,
249. In doing so, the trial court explained that it had
found the trial referee’s report ‘‘ ‘to be sound, compre-
hensive and logical both factually and legally, including
the [trial referee’s] recommendations . . . [1] that a
‘‘collapse’’ in the sense of a material impairment of the
basic structure of a building was included within the
coverage of the insurance policy involved in [the] action
. . . and [2] that the structure in question was in immi-
nent danger of falling over . . . .’ ’’ Id.
On appeal to this court, Middlesex claimed that the
trial court had incorrectly determined that a ‘‘collapse’’
is anything other than a catastrophic event involving a
sudden and complete falling down or caving in of a
building. See id., 250. Specifically, Middlesex argued
that ‘‘the standard dictionary definition of ‘collapse’ on
its face unambiguously connotes a sudden and com-
plete catastrophe’’; id.; characterized by a ‘‘falling in’’
or ‘‘loss of shape . . . .’’ Id., 252. Because the Beaches’
house was indisputably still standing, Middlesex main-
tained that the house reasonably could not be deemed
to have collapsed for purposes of triggering the policy’s
collapse provision. See id., 250–51. We disagreed,
rejecting Middlesex’ contention that the standard dic-
tionary definition of ‘‘collapse’’ supported only one
meaning, namely, a sudden and complete falling down
or caving in. Id. We concluded that, ‘‘[a]lthough ‘col-
lapse’ encompasses a catastrophic breakdown, as [Mid-
dlesex] argue[d]’’; id., 251; it also includes, according
to Webster’s Third New International Dictionary, ‘‘a
breakdown in vital energy, strength, or stamina . . . .’’
(Internal quotation marks omitted.) Id., 250. Accord-
ingly, and in light of the principle that ambiguous lan-
guage in an insurance contract is afforded the meaning
most favorable to the insured; id.; we upheld the trial
court’s determination that Middlesex was liable to the
Beaches under the policy. Id., 253.
In reaching our determination, we also rejected Mid-
dlesex’ assertion that its interpretation was ‘‘the only
one consistent with the terms of the clause excluding
liability for loss by ‘settling, cracking, shrinking, bulging
or expansion.’ ’’ Id., 251. Specifically, Middlesex argued
that this exclusionary clause must be read to ‘‘modify
and inform the meaning of ‘collapse’ and necessarily
narrow the purview of ‘collapse’ to [a] casualty of a
sudden and cataclysmic nature.’’ Id. Although we agreed
that Middlesex’ interpretation was ‘‘a plausible one’’; id.;
we concluded that there was another, equally plausible
reading, namely, that the policy ‘‘exclude[s] loss related
to ‘settling, cracking, shrinkage, bulging or expansion,’
only [as] long as ‘collapse’ does not ensue. Nowhere
does the policy express a clear, unambiguous intent to
exclude coverage for a catastrophe that subsequently
develops out of a loss that appeared, at its inception,
to fall within the rubric of ‘settling, cracking, shrinkage,
bulging or expansion.’ On the contrary, the disputed
policy provision covers a loss for ‘collapse’ [that], not
otherwise being excluded, ‘ensues.’ To ‘ensue’ means
‘to follow as a chance, likely, or necessary consequence
. . . . [Webster’s] Third New International Dictionary
[(1961) p. 756]. By its reference to a ‘collapse’ that
‘ensues,’ the policy . . . can reasonably be understood
to have contemplated coverage for a ‘collapse’ that fol-
lows consequentially from excluded activity. Read in
its entirety, therefore, the defendant’s policy does not
unambiguously limit its liability to a ‘collapse’ of a sud-
den and catastrophic nature.’’ Beach v. Middlesex
Mutual Assurance Co., supra, 205 Conn. 251–52. We
further observed that, ‘‘[a]lthough the judicial decisions
elsewhere are divided, the more persuasive authorities
hold that the term ‘collapse’ is sufficiently ambiguous
to include coverage for any substantial impairment of
the structural integrity of a building. . . . The cases to
the contrary, which hold that ‘collapse’ unmistakably
connotes a sudden falling in, loss of shape, or flattening
into a mass of rubble, have come to be in the distinct
minority.’’ (Citations omitted.) Id., 252.
The defendant in the present case asserts that the
language of the plaintiffs’ homeowners insurance policy
is materially different from the language at issue in
Beach because the plaintiffs’ policy makes clear that a
sudden falling or caving in is required to trigger collapse
coverage. More specifically, the defendant argues that
‘‘[t]he key difference is that the [policy at issue in]
Beach . . . provide[d] that an excluded cause of loss
(cracking) could potentially progress to the point where
it becomes an ‘ensu[ing]’ covered ‘collapse,’ while the
[policy in the present case] makes clear that a loss
consisting of ‘settling, cracking, shrinking, bulging or
expansion’ is not a collapse under any circumstances.’’
(Emphasis in original.) Although the language of the
collapse provisions of the plaintiffs’ policy is somewhat
different from that of the collapse provisions in the
Beaches’ policy, we disagree that this difference is suffi-
cient to remove the ambiguity identified in Beach per-
taining to the term ‘‘collapse.’’ As we previously
explained, the plaintiffs’ policy provides in relevant
part: ‘‘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
. . . . Collapse does not include settling, cracking,
shrinking, bulging or expansion.’’ As in Beach, the term
‘‘collapse’’ is not further defined in the plaintiff’s policy,
and, although the collapse provision purports to
exclude settling, cracking, shrinking, bulging and
expansion from its purview, it does not express a clear
intent to exclude coverage for a collapse that ensues
from what initially began as unexceptional, run-of-the-
mill settling, cracking, shrinking, bulging or expansion
but what later developed into a far more serious struc-
tural infirmity culminating in an actual or imminent
collapse. We therefore agree with those courts that have
concluded that a policy’s use of the term ‘‘collapse,’’
when not clearly defined, is ‘‘fairly susceptible to being
interpreted as not including mere settling or cracking,
but including settling or cracking that results in substan-
tial impairment of a home’s structural integrity . . . .’’
(Emphasis in original; internal quotation marks omit-
ted.) American Concept Ins. Co. v. Jones, 935 F. Supp.
1220, 1227 (D. Utah 1996); see id. (‘‘[i]t appears that the
clear modern trend is to hold that collapse coverage
provisions . . . [that] define collapse as not including
cracking and settling . . . provide coverage if there is
substantial impairment of the structural integrity of the
building or any part of a building’’); see also, e.g., Agosti
v. Merrimack Mutual Fire Ins. Co., 279 F. Supp. 3d
370, 376 (D. Conn. 2017) (‘‘the term collapse standing
alone, is sufficiently ambiguous to include coverage for
any substantial impairment of the structural integrity
of a building’’ (internal quotation marks omitted));
Schray v. Fireman’s Fund Ins. Co., 402 F. Supp. 2d
1212, 1218 (D. Or. 2005) (‘‘the modern trend [is to]
apply the collapse coverage if any part of the building
sustained substantial impairment to its structural
integrity’’).
Indeed, if the defendant had wished to limit its col-
lapse coverage to a sudden and catastrophic event, it
very easily could have done so in plain and unambigu-
ous terms. As one court aptly observed in addressing
this issue, ‘‘[t]he controversy surrounding the definition
of ‘collapse’ began prior to 1960. See Government
Employees [Ins.] Co. v. DeJames, 256 Md. 717, [723–24,
261 A.2d 747] (1970) (citing cases [decided] as early as
1958). Particularly with this much warning, the insurer
is capable of unambiguously limiting collapse coverage
[to a building reduced to a flattened form or rubble,
namely, an actual collapse] if it wishes to do so. See
Rosen v. State Farm General [Ins.] Co., 30 Cal. 4th 1070,
[1073, 1076, 70 P.3d 351, 135 Cal. Rptr. 2d 361] (2003)
(no coverage for imminent collapse of deck when policy
provided ‘[w]e insure only for direct physical loss to
covered property involving the sudden, entire collapse
of a building or any part of a building . . . [and that]
[c]ollapse means actually fallen down or fallen into
pieces.’) . . . .’’ (Emphasis in original.) Schray v. Fire-
man’s Fund Ins. Co., supra, 402 F. Supp. 2d 1218; see
also Liston-Smith v. CSAA Fire & Casualty Ins. Co.,
287 F. Supp. 3d 153, 157, 159 (D. Conn. 2017) (additional
coverage for collapse did not cover cracks in foundation
under homeowners insurance policy that defined ‘‘col-
lapse’’ 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 current intended purpose’’). Because the plain-
tiffs’ policy does not limit collapse coverage in words
that unmistakably connote an actual collapse, whereby
a building is reduced to a flattened form or rubble, we
agree with the plaintiffs that the substantial impairment
standard applies to the present case.
The defendant nonetheless contends that we should
interpret the plaintiffs’ policy as requiring such a cata-
strophic event in light of our statement in Beach that,
if the insurer in that case had ‘‘wished to rely on a single
facial meaning of the term ‘collapse’ as used in its policy,
it had the opportunity expressly to define the term to
provide for the limited usage it . . . claims to have
intended. See, e.g., Nida v. State Farm Fire & Casualty
Co., 454 So. 2d 328, 334 [(La. App.), cert. denied, 458
So. 2d 486 (La. 1984)].’’ Beach v. Middlesex Mutual
Assurance Co., supra, 205 Conn. 251. The defendant
argues that, because the collapse provision of the policy
in Nida is identically worded to the collapse provision
of the policy in the present case and this court cited
Nida for the proposition that Middlesex could have
expressly defined the term ‘‘collapse’’ to require a sud-
den and catastrophic event, we are obliged to conclude
that the substantial impairment standard that we
adopted in Beach does not apply in the present case.
Although concededly our reference to Nida in Beach
was not a model of clarity, the defendant reads too
much into our citation to that case. In referring to Nida
in Beach, we intended only to underscore the point
that insurers can define ‘‘collapse’’ in terms that would
unambiguously exclude losses resulting from settling,
cracking, shrinking, bulging or expansion, and the spe-
cific page to which we cited in Nida does no more than
that. See Nida v. State Farm Fire & Casualty Co., supra,
454 So. 2d 334 (explaining that language in question
was ‘‘neither ambiguous nor unclear’’). We were not
required in Beach to decide, and did not purport to
decide, whether we agreed with the court in Nida that
the policy language at issue in that case unambiguously
limited collapse coverage in the manner determined by
that court. That question being squarely before us now,
we conclude, for the foregoing reasons, that it does not.
II
Having determined that the substantial impairment
of structural integrity standard applies to the plaintiffs’
homeowners insurance policy, we now must clarify
what constitutes such an impairment. Urging us to
adopt a temporal requirement, the defendant argues
that, if the term ‘‘collapse’’ is to have any real meaning,
substantial impairment of structural integrity must
denote that the building, though not yet in pieces on
the ground, is in imminent danger of falling down.
According to the defendant, collapse cannot mean ‘‘the
[mere] gradual deterioration of a concrete foundation
spanning not days, weeks, months or even years but
decades, with no end (or actual ‘collapse’) in sight,’’
because no one would construe the term ‘‘collapse’’ to
describe such a state of affairs. In other words, the
defendant insists, ‘‘[a] gradual process that may (or
may not) result in a structure falling down at some
indeterminate date decades from now is not a ‘collapse’
today . . . .’’ The defendant further observes that
courts in other jurisdictions that have adopted the sub-
stantial impairment standard invariably require that the
building be in imminent danger of falling down, thereby
rendering it unsafe for occupancy, before collapse cov-
erage is triggered. Finally, the defendant asserts that
our decision in Beach quite clearly contemplates the
necessity of an imminence requirement.
The plaintiffs, for their part, claim that such a require-
ment is not only unwarranted, but contrary to the rea-
soning of Beach. Although acknowledging that ‘‘ ‘[t]he
facts of Beach reflect the existence of an immediate
danger of a complete falling in of the building,’’ the
plaintiffs, relying primarily on Dino v. Safeco Ins. Co.
of America, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (June 28, 2018) (66 Conn.
L. Rptr. 652), and Roberts v. Liberty Mutual Fire Ins.
Co., 264 F. Supp. 3d 394 (D. Conn. 2017), nevertheless
contend that ‘‘ ‘the immediacy of that danger does not
appear to drive the court’s reasoning’ ’’ in Beach. The
plaintiffs further assert that the imposition of an immi-
nence requirement would place Connecticut homeown-
ers in the untenable position of having ‘‘to wait until
the house [is] about to fall in’’ before submitting a claim,
even though their contractual and common-law duty to
mitigate damages would be triggered as soon as they
noticed cracks in their foundation, which, in cases
involving Mottes concrete, typically happens years
before the house is in any imminent or serious danger
of falling down. In such circumstances, the plaintiffs
argue, homeowners would ‘‘be denied coverage in every
case of gradual, but inevitable, failure of the structure’’
of their home, which, they maintain, would render col-
lapse coverage under their homeowners insurance poli-
cies ‘‘completely illusory.’’ We agree with the defendant.
As the District Court observed in certifying this ques-
tion, since our adoption of the substantial impairment
standard in Beach thirty-two years ago, this court has
had no occasion to apply or otherwise consider the
standard in any other case. Most unfortunate, however,
due to the crisis involving crumbling basement walls
that has confronted homeowners in Connecticut begin-
ning in the early 2000s, both federal and state trial courts
in Connecticut have been called on to do so numerous
times. As several of those courts have observed, there is
a split among them as to what constitutes a substantial
impairment of structural integrity. Whereas some have
held that the standard requires proof that ‘‘a building
would have caved in had the plaintiffs not acted to
repair the damage’’; (internal quotation marks omitted)
Roberts v. Liberty Mutual Fire Ins. Co., supra, 264 F.
Supp. 3d 407; cf. Dino v. Safeco Ins. Co. of America,
supra, 66 Conn. L. Rptr. 665–66; others have concluded
that, if the plaintiff adduces the opinion of an expert
that the structural integrity of a foundation is materially
impaired, it is up to the jury, on the basis of that expert
testimony, to decide whether that impairment is sub-
stantial enough to satisfy the standard. See, e.g., Jang
v. Liberty Mutual Fire Ins. Co., Docket No. 3:15 CV
1243 (JBA), 2018 WL 3195148, *2 (D. Conn. February
22, 2018); see also Metsack v. Liberty Mutual Fire Ins.
Co., Docket No. 3:14-CV-01150 (VLB), 2017 WL 706599,
*6 (D. Conn. February 21, 2017) (plaintiffs presented
evidence that cracks in basement walls comprised
structural integrity of home, and, therefore, there was
material dispute as to whether damage constituted col-
lapse within meaning of homeowners insurance policy).
Courts embracing the latter view read Beach as placing
no particular definitional constraint on what constitutes
a substantial impairment of a building’s structural integ-
rity, such that an impairment generally will be sufficient
to meet the standard if a jury finds that it is.
Even those courts that have adopted the former view
and require proof that a building would have caved
in at some point in time if the homeowner had not
undertaken the necessary repairs have not required a
showing by the homeowner that the structure was in
imminent danger of falling down. See, e.g., Roberts v.
Liberty Mutual Fire Ins. Co., supra, 264 F. Supp. 3d
408 (‘‘[Beach] indicated [that] it was sufficient that even-
tually the house would have fallen into the cellar’’
(emphasis in original; internal quotation marks omit-
ted)). In declining to read Beach as imposing an immi-
nence requirement, one court noted that the Beaches
‘‘continued in occupancy during . . . repairs’’ and that
‘‘the house never actually caved in’’; (internal quotation
marks omitted) id.; facts that, the court observed, sup-
ported the conclusion that a substantial impairment of
a building’s structural integrity need not be ‘‘so severe
as to materially impair [the] building’s ability to remain
upright.’’ (Internal quotation marks omitted.) Id. For
courts that embrace this view, requiring proof that the
building will eventually fall in, even if that event may be
decades away, ‘‘achieves an appropriate middle ground
that avoids either eviscerating catastrophic coverage
of collapse . . . or effectively nullifying the faulty
workmanship and settling exclusions.’’ (Internal quota-
tion marks omitted.) Id., 407. It also ensures that
‘‘[i]nsurers will not escape paying for catastrophic col-
lapse[s] simply because insureds mitigate their losses
by conducting emergency repairs, but, at the same time,
they also will not . . . [become] liable for run-of-the-
mill basement wall leakage and shifting problems.’’
(Internal quotation marks omitted.) Id. We conclude
that neither of these two views of the substantial impair-
ment standard represents an accurate characterization
of our holding in Beach.
As we explained, the issue we addressed in Beach
was whether a house that was still standing but ‘‘in
imminent danger of falling over’’; Beach v. Middlesex
Mutual Assurance Co., supra, 205 Conn. 249; could
nevertheless be deemed to be in a state of collapse
for purposes of a homeowners insurance policy that
excluded losses resulting from ‘‘settling, cracking,
shrinkage, bulging or expansion’’ unless a ‘‘collapse of
a building . . . not otherwise excluded ensue[d]
. . . .’’ (Internal quotation marks omitted.) Id., 250.
Because of the factual context in which the Beaches’
claim of coverage was made, we had no reason to con-
sider whether a building that was not in any imminent
danger of falling over also could be found to be in a
state of collapse under the same insurance policy. In
light of the facts of Beach, and the cases we relied on
in adopting the substantial impairment standard as an
alternative to the catastrophic event standard advo-
cated by Middlesex, we believe the answer to that ques-
tion—that the building must be in imminent danger of
falling down—was implicit in our holding in Beach.
As the defendant notes, the cases we cited in Beach
for the proposition that the term ‘‘collapse’’ could
encompass something short of a catastrophic event
each involved buildings, or parts of buildings, that, like
the house in Beach, were in imminent danger of falling
over or otherwise had been declared unsafe for their
intended purposes, in most cases both. See, e.g., Auto
Owners Ins. Co. v. Allen, 362 So. 2d 176, 176–77 (Fla.
App. 1978) (‘‘[The homeowners’ expert] stated that one
exterior wall of the building had collapsed and a second
was leaning out from the interior wall a significant
distance. It was his opinion that the roof was kept from
immediately falling only by resting on the interior walls
and that the function of the wall and building . . .
including the function of supporting the superstructure
. . . was impaired and the total building . . . was in
imminent danger of falling further.’’ (Internal quotation
marks omitted.)); Nationwide Mutual Fire Ins. Co. v.
Tomlin, 181 Ga. App. 413, 414, 352 S.E.2d 612 (1986)
(‘‘[t]he exterior brick walls of the house have cracked
and pulled away from the structure,’’ requiring plaintiffs
to install ‘‘wood supports against the walls to prevent
them from falling’’ (internal quotation marks omitted));
Rogers v. Maryland Casualty Co., 252 Iowa 1096, 1099,
109 N.W.2d 435 (1961) (‘‘Of course [the] walls had not
completely fallen down. [But] [s]izable chunks of stucco
had fallen from the foundation, and the entire north
basement wall was in danger of falling in. The house was
seriously damaged from cracks, bulging and buckling
of the basement walls. The jury could find its basic
structure was materially impaired and [that] it was dan-
gerous to occupy it.’’); Government Employees Ins. Co.
v. DeJames, supra, 256 Md. 721 (‘‘[w]hen asked to char-
acterize the condition of the wall, [the expert witness
stated that] it had failed, explaining that this was an
engineering term meaning its condition was beyond any
reasonable use, that it could no longer usefully sustain
a load, that [i]t certainly was unsafe, that [i]t would not
be safe if the wooden framework supporting the first
floor joists and the shoring were removed’’ (internal
quotation marks omitted)); Vormelker v. Oleksinski, 40
Mich. App. 618, 622, 199 N.W.2d 287 (1972) (shifting
foundation rendered home ‘‘uninhabitable’’); Morton v.
Travelers Indemnity Co., 171 Neb. 433, 439, 106 N.W.2d
710 (1960) (‘‘[a consulting engineer] advised that the
walls needed to be replaced or repaired by being braced
or otherwise supported, because they could completely
collapse in the foreseeable future’’); Morton v. Great
American Ins. Co., 77 N.M. 35, 37, 419 P.2d 239 (1966)
(‘‘the failure and collapse of a part of [the] plaintiffs’
house was of such an extent that its condition created
an unsafe and dangerous situation with the possibility
of further extensive damage to [the] dwelling’’ (internal
quotation marks omitted)); Employers Mutual Casu-
alty Co. v. Nelson, 361 S.W.2d 704, 709 (Tex. 1962)
(‘‘[w]e think the term [collapse] can be defined properly
as a sinking, bulging, breaking or pulling away of the
foundation or walls or other supports so as materially
to impair their function and to render the house unfit
for habitation’’); Thornewell v. Indiana Lumbermens
Mutual Ins. Co., 33 Wis. 2d 344, 349, 147 N.W.2d 317
(1967) (‘‘[i]f the condition of the part of the building
claimed to be in a state of collapse is such that the
basic structure or substantial integrity of the part is
materially impaired so that it cannot perform its struc-
tural function as a part of the building and is in immedi-
ate danger of disintegrating, then it can be said to be
in a state of collapse within the meaning of the extended
coverage of the policy’’). Like many of these courts,
we concluded in Beach that ‘‘[r]equiring the insured to
await an actual collapse [before coverage is triggered]
would not only be economically wasteful . . . but
would also conflict with the insured’s contractual and
[common-law] duty to mitigate damages.’’ (Citation
omitted.) Beach v. Middlesex Mutual Assurance Co.,
supra, 205 Conn. 253 n.2.
Cases that have been decided since Beach, with the
exception of the crumbling basement wall cases in Con-
necticut, also require that a building be in imminent
danger of falling down and therefore unsafe for its
intended purpose. This requirement, as many of these
courts have observed, ‘‘avoids both the absurdity of
requiring an insured to wait for a seriously damaged
building to fall and the improper extension of coverage
beyond the terms of the policy . . . .’’ Doheny West
Homeowners’ Assn. v. American Guarantee & Liabil-
ity Ins. Co., 60 Cal. App. 4th 400, 406, 70 Cal. Rptr. 2d
260 (1997) (‘‘since any of the excluded causes could
result in collapse if the initial damage was neglected
for a long enough period, an [imminence] limitation is
logically necessary if we are to avoid converting this
insurance policy into a maintenance agreement,’’ and
‘‘[t]his construction of the policy . . . is consistent
with the policy language and the reasonable expecta-
tions of the insured’’); see also KAAPA Ethanol, LLC
v. Affiliated FM Ins. Co., 660 F.3d 299, 306 (8th Cir.
2011) (imminence requirement ‘‘comports with the rea-
sonable expectations of the parties to the insurance
contract . . . and achieves an appropriate middle
ground that avoids eviscerating catastrophic coverage
of collapse . . . or effectively nullifying the faulty
workmanship and settling exclusions’’); Buczek v. Con-
tinental Casualty Ins. Co., 378 F.3d 284, 290 (3d Cir.
2004) (defining ‘‘collapse’’ as substantial impairment of
structural integrity that ‘‘connotes imminent collapse
threatening the preservation of the building as a struc-
ture or . . . health and safety’’ (emphasis in original;
internal quotation marks omitted)); Whispering Creek
Condominium Owner Assn. v. Alaska National Ins.
Co., 774 P.2d 176, 179 (Alaska 1989) (substantial impair-
ment standard was satisfied because building ‘‘was dan-
gerous and in immediate danger of complete collapse’’);
Doheny West Homeowners’ Assn. v. American Guaran-
tee & Liability Ins. Co., supra, 406 (jurisdictions that
apply substantial impairment standard ‘‘do not extend
coverage to impairment of structural integrity, even if
the impairment is substantial, if it is unrelated to actual
collapse,’’ but, rather, ‘‘those [jurisdictions] either
implicitly or explicitly require that collapse be imminent
and inevitable, or all but inevitable’’); Doheny West
Homeowners’ Assn. v. American Guarantee & Liabil-
ity Ins. Co., supra, 407 (observing that Beach itself was
‘‘decided on facts that indicate imminent danger and a
degree of damage that indicates that the building will
not stand’’); Fantis Foods, Inc. v. North River Ins. Co.,
332 N.J. Super. 250, 260, 753 A.2d 176 (App. Div.) (if
policy contains no definition of term ‘‘collapse,’’ ‘‘such
a policy must be taken to cover any serious impairment
of structural integrity that connotes imminent collapse
threatening the preservation of the building as a struc-
ture or the health and safety of occupants and [pas-
sersby]’’), cert. denied, 165 N.J. 677, 762 A.2d 658 (2000);
401 Fourth Street, Inc. v. Investors Ins. Group, 583 Pa.
445, 460, 879 A.2d 166 (2005) (‘‘imminent falling down
of a building or part thereof’’ was required to trigger
collapse coverage); Ocean Winds Council of Co-Own-
ers, Inc. v. Auto-Owner Ins. Co., 350 S.C. 268, 271, 565
S.E.2d 306 (2002) (‘‘[w]e find a requirement of imminent
collapse is the most reasonable construction of the
policy clause covering risks of direct physical loss
involving collapse’’ (internal quotation marks omitted)).
We agree with these well reasoned cases. We also
agree with the following explication of the standard set
forth by the Washington Supreme Court in Queen Anne
Park Homeowners Assn. v. State Farm Fire & Casualty
Co., 183 Wash. 2d 485, 352 P.3d 790 (2015): ‘‘Of the defini-
tions [of collapse] offered . . . substantial impairment
of structural integrity is both reasonable and the most
favorable to the insured. Based on the language of the
[p]olicy, however, we caution that ‘collapse’ must mean
something more than mere ‘settling, cracking, shrink-
ing, bulging or expansion.’ . . . Also, we note that
‘structural integrity’ of a building means a building’s
ability to remain upright and ‘substantial impairment’
means a severe impairment. Taken together, ‘substan-
tial impairment’ of ‘structural integrity’ means an
impairment so severe as to materially impair a building’s
ability to remain upright. Considering the [p]olicy as a
whole, [the court] conclude[s] that ‘substantial impair-
ment of structural integrity’ means the substantial
impairment of the structural integrity of all or part of
a building that renders all or part of the building unfit
for its function or unsafe and, in this case, means more
than mere settling, cracking, shrinkage, bulging, or
expansion.’’ (Citation omitted; footnote omitted) Id.,
491–92.
In our view, to conclude otherwise would not only
nullify the exclusion contained in the plaintiffs’ home-
owners insurance policy for losses related to ‘‘settling,
cracking, shrinkage, bulging or expansion,’’ but would
strip the term ‘‘collapse’’ of its natural and ordinary
meaning. The plaintiffs’ assertions to the contrary not-
withstanding, an imminence requirement does not ren-
der collapse coverage under their policy illusory; it
merely gives effect to the reasonable expectations of
the parties as evidenced by the language of the policy.
We therefore disagree with the plaintiffs that Beach
supports the view that the substantial impairment stan-
dard may be satisfied merely by evidence that a building
will eventually fall down, even if it is in no present
danger of doing so, and likely can be safely occupied
for years, if not decades, into the future.
Relying primarily on Roberts v. Liberty Mutual Fire
Ins. Co., supra, 264 F. Supp. 3d 394, the plaintiffs never-
theless contend that an ‘‘eventual collapse’’ standard is
appropriate because it accords with this court’s state-
ments in Beach that (1) the Beaches’ house ‘‘eventually
. . . would have fallen into the cellar’’; (internal quota-
tion marks omitted) Beach v. Middlesex Mutual Assur-
ance Co., supra, 205 Conn. 249; (2) the Beaches ‘‘contin-
ued in occupancy’’ while repairs were made; id., 248;
and (3) the substantial impairment standard was satis-
fied ‘‘even though no actual [caving in had] occurred
and the structure was not rendered completely uninhab-
itable.’’ Id., 253.
We are not persuaded that any of these statements
in Beach are incompatible or otherwise in tension with
an imminence requirement. Our acknowledgment that
the Beaches’ house had not yet caved in but ultimately
would do so was a statement of fact intended merely
to underscore that an actual collapse was not necessary
to trigger coverage under the standard we adopted.
Likewise, our statement that the Beaches remained in
their home while repairs were made contains no sugges-
tion that it was safe for them to do so or, more generally,
that a building that is not in any imminent danger of
falling down and therefore poses no immediate threat to
its occupants could nevertheless satisfy the substantial
impairment standard. Indeed, we sometimes take calcu-
lated risks with respect to our personal safety, and the
fact that we do so does not render those risks prudent
or any less perilous. It bears emphasis, moreover, that
the trial referee credited testimony in Beach that ‘‘the
foundation wall had tipped over into the basement from
the top and was no longer supporting the house.’’
(Emphasis added.) Id., 248. In view of this and other
findings concerning the urgent nature of the problem,
including the trial court’s express determination that
the house was in ‘‘imminent danger of falling over’’; id.,
249; it cannot reasonably be argued either that there
was no immediate risk of the house’s falling down or
that the house posed no threat to the physical safety
of those who resided there, even if they chose to remain
in the house while it was being repaired.
We therefore conclude that, to meet the substantial
impairment standard, an insured whose home has not
actually collapsed must present evidence demonstra-
ting that the home nevertheless is in imminent danger
of such a collapse. Of course, whether this evidence
satisfies the standard in any particular case necessarily
will depend on the specific facts of the case and the
strength and credibility of the expert testimony adduced
by the insured and the insurer.
III
Finally, we turn to the issue of whether the coverage
exclusion in the policy for the collapse of the home’s
‘‘foundation’’ unambiguously includes the basement
walls of the home. In support of their contention that
it does not, the plaintiffs primarily rely on the decisions
of the United States District Court for the District of
Connecticut and state trial courts, which uniformly
have rejected insurers’ claims that the foundation of a
home clearly includes the home’s basement walls;
rather, those courts have concluded that the term rea-
sonably can be interpreted to refer solely to the footings
beneath the basement walls. In contending that those
cases were wrongly decided, the defendant identifies
what it claims are significant flaws in the reasoning of
the decisions and emphasizes, first, that neither this
court nor the Appellate Court has ever endorsed the
view that the term ‘‘foundation’’ properly can be under-
stood to refer solely to the footings beneath the founda-
tion’s walls and, second, that virtually every indepen-
dent source of the meaning of the term, including
dictionaries, newspaper articles, statutes, and recent
government reports addressing the state’s so-called
crumbling foundations crisis, categorically refute that
view. The defendant also argues that the plaintiffs’
homeowners insurance policy itself belies any such
understanding of the meaning of the term ‘‘foundation’’
because the policy expressly distinguishes between a
‘‘footing’’ and a ‘‘foundation,’’ thereby making clear that
the two terms have different meanings. We conclude
that the term ‘‘foundation’’ in the plaintiffs’ policy unam-
biguously includes the home’s basement walls.
We begin our analysis by noting that the plaintiffs do
not dispute that basement walls are invariably consid-
ered part of a building’s foundation in state and local
building codes and among building professionals.
Indeed, the plaintiffs’ own expert, Grandpre, testified
unequivocally on this point during his deposition.
Grandpre also testified that the definition of ‘‘founda-
tion’’ contained in the report of the Department of Con-
sumer Protection on the crumbling foundations issue
comports with his own understanding of that word.
That report provides that ‘‘[a] foundation for a residen-
tial structure consists of three essential parts. The foot-
ing provides the base which supports the foundation
walls and the slab forms the floor.’’ (Emphasis added.)
Report on Deteriorating Concrete in Residential Foun-
dations, supra, p. 2 n.1. According to Grandpre, this
definition is ‘‘the standard of the industry . . . .’’
Of course, the fact that building professionals invari-
ably understand that basement walls are part of a
home’s foundation is not dispositive of our inquiry
because it is well settled that the terms of an insurance
policy, unless otherwise clearly defined in the policy
itself, must be construed as laypersons understand
them. See, e.g., Israel v. State Farm Mutual Automobile
Ins. Co., 259 Conn. 503, 509, 789 A.2d 974 (2002); see
also 2 S. Plitt et al., Couch on Insurance (3d Ed. Rev.
2010) § 22:38, p. 22-164 (‘‘[t]he rule that words in insur-
ance policies are to be construed using their ordinary
and popular meanings has long been recognized . . .
and has been applied in the context of various types
of insurance’’). We are persuaded, however, that even
laypersons with no special knowledge of building codes
or the intricacies of home construction understand that
the concrete basement walls of a home are part of
its foundation.
Our conclusion finds support in the various dictionar-
ies in circulation at or around the time the policy was
issued to the plaintiffs. See, e.g., Buell Industries, Inc.
v. Greater New York Mutual Ins. Co., 259 Conn. 527,
539, 791 A.2d 489 (2002) (it is appropriate to look to
dictionary definition of term to ascertain its commonly
approved meaning). For example, Webster’s Third New
International Dictionary defines ‘‘foundation’’ in rele-
vant part as ‘‘the supporting part of a wall or structure
usu[ally] below ground level and including footings
. . . the whole masonry substructure of a building
. . . .’’ (Emphasis added.) Webster’s Third New Inter-
national Dictionary (2002) p. 898. Consistent with this
definition, it defines ‘‘footing’’ in relevant part as ‘‘an
enlargement at the lower end of a foundation wall,
pier, or column to distribute the load . . . .’’ (Emphasis
added.) Id., p. 885. Merriam-Webster’s Collegiate Dic-
tionary similarly defines ‘‘foundation’’ in relevant part as
‘‘the whole masonry substructure of a building . . . .’’
(Emphasis added.) Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2003) p. 494. According to the Random
House Unabridged Dictionary, a ‘‘footing’’ is ‘‘the part
of a foundation bearing directly upon the earth.’’
(Emphasis added.) Random House Unabridged Diction-
ary (2d Ed. 1993) p. 746. These sources demonstrate
that, although footings are certainly part of a home’s
foundation, they do not constitute the entire founda-
tion, which is also comprised of the basement walls.9
The fact that concrete basement walls, and not just
footings, comprise a home’s foundation has also been
confirmed repeatedly by the government entities tasked
with addressing Connecticut’s crumbling foundations
problem, including the legislature, the Office of the
Attorney General, the Department of Insurance and, as
previously noted, the Department of Consumer Protec-
tion. In all of their public pronouncements addressing
the issue, these entities have unfailingly referred to the
affected basement walls as crumbling foundations. See,
e.g., General Statutes § 8-441 (establishing ‘‘Crumbling
Foundations Assistance Fund’’); General Statutes § 8-442
(establishing ‘‘Collapsing Foundations Credit Enhance-
ments Program’’); General Statutes § 8-443 (a) (authoriz-
ing municipal joint borrowing ‘‘from any source for the
purpose of paying for all or part of the cost of any project
entered into jointly to abate a deleterious condition on
real property that, if left unabated, would cause the col-
lapse of a concrete foundation due to the presence of
pyrrhotite’’); General Statutes § 8-445(authorizing issu-
ance of bonding for purposes of ‘‘Crumbling Founda-
tions Assistance Fund’’); General Statutes § 20-327b (d)
(4) (G) (‘‘[p]rospective buyers may have a concrete foun-
dation inspected by a licensed professional engineer
. . . for deterioration of the foundation due to the pres-
ence of pyrrhotite’’); Letter from Attorney General
George Jepsen to Governor Dannel P. Malloy and Jon-
athan A. Harris, Commissioner of Consumer Protection
(July 7, 2016) (concerning consumer protection inves-
tigation of ‘‘[c]rumbling [c]oncrete [h]ome [f]ounda-
tions’’), available at https://portal.ct.gov/-/media/DCP/
pdf/ConcreteStatusreporttoGovandDCPJuly2016PDF
.PDF?la=en (last visited November 6, 2019); Letter from
Andrew N. Mais, Insurance Commissioner, to Insurers
Writing Homeowners and Condominium Insurance in
Connecticut (June 10, 2019) (2019 update to insurers
concerning ‘‘foundations that are crumbling or other-
wise deteriorating’’), available at https://portal.ct.gov/-/
media/CID/2019CrumblingFoundationNotice.pdf (last
visited November 6, 2019). Notably, other government
publications are in accord with this understanding of
what comprises a foundation. For example, a handbook
on home construction issued by the United States
Department of Agriculture provides that ‘‘[f]oundation
walls form an enclosure for basements or crawl spaces
and carry wall, floor, roof, and other building loads.’’ U.S.
Department of Agriculture, Agriculture Handbook No.
73: Wood-Frame House Construction (Rev. April, 1975)
p. 8, available at https://naldc.nal.usda.gov/download/
CAT 87209853/PDF (last visited November 6, 2019). That
handbook also provided that ‘‘footings act as the base
of the foundation and transmit the superimposed load
to the soil.’’ (Emphasis in original.) Id., p. 5. Moreover,
media reports addressing the crumbling foundations
problem also consistently have referred to the affected
basement walls as crumbling foundations. E.g., L. Foder-
aro & K. Hussey, ‘‘Financial Relief Eludes Connecticut
Homeowners with Crumbling Foundations,’’ N.Y. Times,
November 15, 2016, p. A24 (referring to ‘‘crumbling con-
crete foundations’’); S. Haigh, ‘‘Lawmakers Continue
Push To Address Crumbling Foundations,’’ U.S. News
& World Report, March 8, 2019 (referring to Connecti-
cut’s ‘‘crumbling foundations prob-lem’’), available at
https://www.usnews.com/news/best-states/connecticut/
articles/2019-03-08/lawmakers-look-to-more-bills-to
-address-crumbling-basements (last visited November
6, 2019).
Our conclusion finds further support in the fact that,
for well over one century, this court has used the term
‘‘foundation wall’’ when referring to the basement wall
of a building. Beach v. Middlesex Mutual Assurance
Co., supra, 205 Conn. 248 (‘‘[t]he crack in the north
foundation wall continued to widen, and by May of 1976
had reached a width of approximately nine inches’’);
see also Menga v. Kabakoff, 110 Conn. 381, 383, 148 A.
131 (1930) (‘‘[t]here is no claim that the outside of the
foundation walls above the ground was not stuccoed’’);
O’Keefe v. Corp. of St. Francis’s Church, 59 Conn. 551,
556, 22 A. 325 (1890) (‘‘the foundation walls were carried
to a much greater depth than intended in the original
plan or called for in the specifications and contract’’);
Gear v. Barnum, 37 Conn. 229, 231 (1870) (‘‘[t]he foun-
dation walls of a building are a part of the building
itself’’). The fact that we have done so, although not
dispositive of the issue before us, fortifies the conclu-
sion that, in common parlance, a ‘‘basement wall’’ and
a ‘‘foundation wall’’ are one and the same.
Finally, the policy contains an exclusion for loss to
a ‘‘foundation’’ and, by endorsement, loss to a ‘‘footing’’
caused by water or ice. If the term ‘‘foundation’’ means
‘‘footing,’’ as the plaintiffs contend, then the ‘‘footing’’
endorsement is superfluous. ‘‘We previously have rec-
ognized the canon of construction of insurance policies
that a policy should not be interpreted so as to render
any part of it superfluous. . . . Since it must be
assumed that each word contained in an insurance pol-
icy is intended to serve a purpose, every term will be
given effect if that can be done by any reasonable con-
struction . . . .’’ (Internal quotation marks omitted.)
R.T. Vanderbilt Co. v. Continental Casualty Co., 273
Conn. 448, 468, 870 A.2d 1048 (2005). The redundancy
that results from the plaintiffs’ interpretation of the
policy readily can be avoided by treating the terms
‘‘footing’’ and ‘‘foundation’’ as having different mean-
ings, a result that, as we have explained, is also dictated
by the dictionary definitions of those two terms.
The plaintiffs nonetheless urge us to follow the deci-
sions of the United States District Court for the District
of Connecticut and state trial courts that have
addressed this issue, all of which have concluded that
the term ‘‘foundation’’ reasonably may be understood
to refer solely to the footings beneath the basement
walls. Although we hold these courts in high regard,
for the reasons that follow, we are not persuaded by
the reasoning underlying their conclusion that the term
‘‘foundation’’ is ambiguous because it is reasonably sus-
ceptible of the meaning attributed to it by the plaintiffs,
namely, that it includes only the footings and not the
basement walls themselves.
The first case in which a Connecticut court found
the term ‘‘foundation’’ to be ambiguous, which many
courts later followed, was Bacewicz v. NGM Ins. Co.,
Docket No. 3:08-CV-1530 (JCH), 2010 WL 3023882 (D.
Conn. August 2, 2010). As in the present case, the named
defendant in Bacewicz, NGM Insurance Company,
argued that the plaintiffs, Joseph Bacewicz and Janice
Bacewicz, could not recover for the alleged collapse of
their basement walls because foundations were
expressly excluded under the collapse provisions of
their homeowners insurance policy. Id., *3. And like
the plaintiffs in the present case, the Bacewiczes main-
tained that the term ‘‘foundation’’ reasonably could be
understood as connoting only the footings beneath their
basement walls. Id. Although acknowledging that
‘‘much of the evidence in [the] case indicates that the
terms ‘basement walls’ and ‘foundation walls’ are used
interchangeably’’; id., *4; for two reasons, the District
Court nevertheless sided with the Bacewiczes. See id.
First, the District Court found support for the inter-
pretation advanced by the Bacewiczes in Turner v.
State Farm Fire & Casualty Cos., 614 So. 2d 1029 (Ala.
1993). See Bacewicz v. NGM Ins. Co., supra, 2010 WL
3023882, *4 (citing Turner and noting that ‘‘at least one
other court considering a similar question has held that
‘a person of ordinary intelligence could reasonably con-
clude . . . that the term ‘‘foundation’’ refers only to
[footings]’ ’’). In Turner, the plaintiffs, Gary Lee Turner
and Linda C. Turner, purchased their home while it
was still under construction. See Turner v. State Farm
Fire & Casualty Cos., supra, 1030. Before the house
was completed, a basement wall collapsed; id.; and the
Turners filed a claim under their builder’s risk insurance
policy, which the defendant insurer, State Farm Fire
and Casualty Companies (State Farm), denied on the
ground that the policy’s collapse provision excluded
foundations. See id., 1030–31. The Turners thereafter
commenced an action against State Farm, which subse-
quently filed a motion for summary judgment, claiming
that the Turners’ basement walls were excluded from
coverage under the unambiguous terms of the policy.
See id. The trial court agreed with State Farm and
granted its summary judgment motion. See id., 1030.
On appeal to the Alabama Supreme Court, the Turners
claimed ‘‘that the term ‘foundation’ [should] not encom-
pass their basement walls because . . . the walls were
free standing when constructed and formed the interior
walls of the first floor of the house. [The Turners] filled
dirt around the walls to make a basement sometime
after their construction.’’ (Emphasis added.) Id., 1031.
Because the walls purportedly had formed the interior
walls of the first floor of their home when they pur-
chased it, the Turners maintained that ‘‘they understood
the term ‘foundation’ to mean the [three by three foot-
ing] under the basement wall.’’ Id. Solely on the basis
of the Turners’ testimony, the Alabama Supreme Court
concluded that ‘‘a person of ordinary intelligence could
reasonably conclude, as the Turners say they did, that
the term ‘foundation’ refers only to the piece of concrete
at the base of the wall . . . .’’10 Id., 1032.
We agree with the defendant that, contrary to the
conclusion of the District Court in Bacewicz, Turner
is not persuasive authority. To begin with, the facts of
that case are readily distinguishable because there is
no claim in the present case that the plaintiffs’ basement
walls ever formed the interior walls of the first floor
of their home. Perhaps more fundamentally, the court
in Turner engaged in no meaningful analysis of whether
the term ‘‘foundation’’ is reasonably susceptible of a
meaning that would exclude a home’s basement walls
but, rather, simply relied on the Turners’ subjective
understanding of that word, in contravention of the
established principle that a party’s subjective under-
standing of the language used in a contract, unless
objectively reasonable, does not render the language
ambiguous. See, e.g., Yellow Book Sales & Distribution
Co. v. Valle, 311 Conn. 112, 119, 84 A.3d 1196 (2014)
(‘‘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’’ (internal
quotation marks omitted)).
In concluding that the term ‘‘foundation’’ is ambigu-
ous, the court in Bacewicz also relied on the deposition
testimony of Grandpre, who, as in the present case,
was retained by the homeowners and testified as an
expert witness on their behalf. The District Court
observed that Grandpre’s testimony ‘‘appear[ed] to indi-
cate that there are multiple definitions of the term ‘foun-
dation.’ ’’ Bacewicz v. NGM Ins. Co., supra, 2010 WL
3023882, *4. Grandpre, however, provided no such testi-
mony in the present case. To the contrary, he stated
unequivocally that a foundation is comprised of three
parts: the basement walls, the basement floor and the
footings beneath the basement walls. Bacewicz, in our
view, loses its persuasive force in light of the foregoing
critique of Turner and the differing testimony of
Grandpre.
Since Bacewicz, federal and state courts consistently
have rejected insurers’ claims that the term ‘‘founda-
tion’’ unambiguously includes basement walls, conclud-
ing, instead, largely on the basis of Bacewicz—or cases
that relied on Bacewicz—that the word is also reason-
ably understood to refer solely to the footings beneath
a basement wall. See, e.g., Clark v. Amica Mutual Ins.
Co., Docket No. 3:16cv1573 (JBA), 2018 WL 2725441,
*3 (D. Conn. June 6, 2018) (‘‘[The] [d]efendant acknowl-
edges that courts in this district have previously held
that the term ‘foundation’ is ambiguous. . . . Those
cases note that the term ‘foundation’ could also mean
the ‘footings’ of a structure as a number of dictionaries
define the term ‘foundation’ as ‘the lowest [load bearing]
part of the building.’ . . . Indeed, in Bacewicz, the
court specifically [concluded] . . . that ‘a reasonable
jury could find that the basement walls of the [plain-
tiffs’] house did not constitute the ‘‘foundation’’ of the
house.’ ’’ [Citations omitted.]); Roberts v. Liberty
Mutual Fire Ins. Co., supra, 264 F. Supp. 3d 412 (con-
cluding that basement walls were not unambiguously
part of foundation); Metsack v. Liberty Mutual Fire
Ins. Co., Docket No. 3:14-CV-01150 (VLB), 2015 WL
5797016, *6 (D. Conn. September 30, 2015) (citing
Bacewicz and noting that ‘‘[p]rior courts have held that
the term ‘foundation’ could refer to the ‘footings’ of a
structure, citing an Alabama Supreme Court case
[namely, Turner] which described the ‘footings’ as a
‘[three by three] foot piece of concrete under the base-
ment wall’ ’’); Gabriel v. Liberty Mutual Fire Ins. Co.,
Docket No. 3:14-CV-01435-VAB, 2015 WL 5684063, *3–4
(D. Conn. September 28, 2015) (citing Bacewicz and
noting that United States District Court for the District
of Connecticut ‘‘has held several times in recent cases
involving nearly identical facts and policy language that
the [term] ‘foundation’ . . . [is] ambiguous . . . . The
same conclusion is appropriate here. The term ‘founda-
tion’ is ambiguous because it is reasonably susceptible
to the [plaintiffs’] interpretation to mean footings under
the basement walls . . . .’’ [Citations omitted.]); Belz
v. Peerless Ins. Co., 46 F. Supp. 3d 157, 163 (D. Conn.
2014) (citing Bacewicz and noting that United States
District Court for District of Connecticut ‘‘has not only
already held that the term ‘foundation’ is ambiguous,
but it did so in a case involving similar basement wall
cracking and identical policy language’’); Karas v. Lib-
erty Ins. Corp., 33 F. Supp. 3d 110, 115 (D. Conn. 2014)
(citing Bacewicz for proposition that alternative ‘‘defini-
tion of ‘foundation’ could be the footing [on] which
the basement walls rest, which does not include the
basement walls’’); Dino v. Safeco Ins. Co. of America,
supra, 66 Conn. L. Rptr. 666 (citing Bacewicz and noting
that ‘‘[e]very state and federal court decision in Con-
necticut considering this issue has concluded that ‘foun-
dation’ . . . [is] ambiguous as applied to the basement
walls of a house’’); Roy v. Liberty Mutual Fire Ins. Co.,
Superior Court, judicial district of Tolland, Docket No.
CV-XX-XXXXXXX-S (February 22, 2017) (citing Bacewicz
for proposition that ‘‘the term ‘foundation’ is ambiguous
because ‘a person of ordinary intelligence could reason-
ably conclude . . . that the term ‘‘foundation’’ refers
to the piece of concrete at the base of the wall, rather
than a concrete basement wall itself’ ’’). Ordinarily, the
weight and unanimity of such authority would lead us
to the same conclusion. As we have indicated, however,
the holding of each of these cases inherited the same
analytical infirmities found in Bacewicz.
Recently, several courts have provided two additional
reasons for concluding that the term ‘‘foundation’’ is
ambiguous as to whether it includes a home’s basement
walls, neither of which is persuasive. First, these courts
have found support for their interpretation in the
‘‘replacement value calculation’’ provision of the policy
at issue in the present case, which prescribes the
method of calculating 80 percent of the replacement
value of a covered building and provides in relevant
part: ‘‘To determine the amount of insurance required
to equal [80 percent] of the full replacement cost of the
building immediately before the loss, do not include
the value of:
‘‘(a) Excavations, foundations, piers or any supports
which are below the undersurface of the lowest base-
ment floor;
‘‘(b) Those supports in (a) above which are below
the surface of the ground inside the foundation walls,
if there is no basement; and
‘‘(c), Underground flues, pipes, wiring and drains.’’
Reading the qualifying phrase ‘‘which are below the
undersurface of the lowest basement floor’’ as modi-
fying all of the excluded items in that provision, the
courts have explained that that provision supports the
conclusion that a foundation can be located entirely
below the undersurface of the lowest basement floor.
See, e.g., Metsack v. Liberty Mutual Fire Ins. Co., supra,
2015 WL 5797016, *7 (‘‘implicit in the [replacement
value] calculation [is the] key [concept] . . . that a
foundation can exist ‘below the undersurface of the
lowest basement floor,’ which implies that a basement
wall and a foundation are not always one and the same’’
[emphasis omitted]); see also Clark v. Amica Mutual
Ins. Co., supra, 2018 WL 2725441, *4 (‘‘the language in
[the replacement value calculation provision] does not
require that the term ‘foundation’ be interpreted as
always including basement walls’’ [emphasis omitted]).
When the provision is read in this manner, the definition
of ‘‘foundation’’ necessarily excludes a home’s base-
ment walls because basement walls are always above
the undersurface of the lowest basement floor.
As the defendant contends, however, this interpreta-
tion of the replacement value calculation provision runs
afoul of the last antecedent rule, a principle of contract
and statutory interpretation pursuant to which a lim-
iting clause or phrase is read as modifying only the noun
or phrase that immediately precedes it; e.g., Corsair
Special Situations Fund, L.P. v. Engineered Framing
Systems, Inc., 327 Conn. 467, 475, 174 A.3d 791 (2018);
see also Connecticut Ins. Guaranty Assn. v. Drown,
314 Conn. 161, 190, 101 A.3d 200 (2014); unless the
limiting language is separated from the preceding noun
or phrase by a comma, in which case ‘‘one may infer
that the qualifying phrase is intended to apply to all its
antecedents, not only the one immediately preceding
it.’’ State v. Rodriguez-Roman, 297 Conn. 66, 76, 3 A.3d
783 (2010). Because there is no comma separating the
phrase ‘‘which are below the undersurface of the lowest
basement floor’’ from the list of items excluded from
the replacement value calculation, that phrase, in the
absence of evidence of a contrary intention—and there
is none in this case—is properly read as referring solely
to the phrase ‘‘or any supports . . . .’’
Although the last antecedent rule is not inviolate, its
application in the present case makes perfect sense.
We see no reason why the parties, in determining 80
percent of the replacement cost of a home, would
exclude only a fraction of the cost of the excavation,
foundation, and piers—namely, the cost corresponding
to the portion of those items that lie ‘‘below the under-
surface of the lowest basement floor . . . .’’ Applica-
tion of the last antecedent rule, by contrast, yields an
eminently reasonable construction of the replacement
value calculation provision pursuant to which every
item that is below the surface of the ground, including
underground flues, pipes, wiring and drains, is excluded
from the calculation, rather than merely a portion of
some of those items.
Applying the canon of statutory construction known
as noscitur a sociis, which in Latin means ‘‘it is known
by its associates’’; (internal quotation marks omitted)
State v. Agron, 323 Conn. 629, 635 n.3, 148 A.3d 1052
(2016); at least two courts also have concluded that,
because the other items excluded from coverage under
the collapse provisions of the policy generally are
located outside of a home,11 the foundation exclusion
is ambiguous insofar as it is not clear whether the exclu-
sion applies to the foundation beneath an insured’s
home or to some other foundation peripheral to the
home. See, e.g., Metsack v. Liberty Mutual Fire Ins.
Co., supra, 2015 WL 5797016, *7 n.2 (‘‘Given that the
term ‘foundation’ is ambiguous, the [c]ourt notes that
[the plaintiffs’] interpretation is potentially supported
by the interpretative [principle] of noscitur a sociis
. . . . With the exception of ‘foundation,’ all of the
terms used in the exclusion reference ancillary struc-
tures to the building itself. A reasonable trier of fact
could conclude that the other terms used in the exclu-
sion shed light on the term ‘foundation’ and suggest
that term to be a reference to a more ancillary structure
than the wall of a basement room.’’ [Citation omitted.]);
Roy v. Liberty Mutual Fire Ins. Co., supra, Superior
Court, Docket No. CV-XX-XXXXXXX-S (‘‘[T]his section of
the policy appears to exclude items that would be found
outside of a building, and not inside a building, such
as an awning, fence, patio, pavement, pool, [and] septic
tank. This list of outside items suggests that what was
intended by this exclusion language includes only items
found outside of the home or at a minimum renders
it ambiguous.’’).
The canon of noscitur a sociis, however, is applied
to aid in the construction of a statute only when the
statutory terms are ambiguous; see, e.g., Soto v. Bush-
master Firearms International, LLC, 331 Conn. 53,
178, 202 A.3d 262, cert. denied sub nom. Remington
Arms Co., LLC v. Soto, U.S. , 140 S. Ct. 513, 205
L. Ed. 2d 317 (2019); and not ‘‘to create uncertainty in
an otherwise unambiguous term . . . .’’ Schenkel &
Shultz, Inc. v. Homestead Ins. Co., 119 F.3d 548, 551
(7th Cir.1997). Because we conclude that the term
‘‘foundation’’ unambiguously includes a home’s base-
ment walls, applying the canon in the present case is
unwarranted. The use of the canon in the present case,
moreover, also contravenes the canon of statutory and
contract interpretation that, ordinarily, when the same
words are used two or more times, they will be given
the same meaning in each instance. See, e.g., State v.
Lutters, 270 Conn. 198, 211, 853 A.2d 434 (2004); see
also 4 W. Jaeger, Williston on the Law of Contracts (3d
Ed. 1961) § 618, pp. 715–16 (it may be presumed that
words used repeatedly in same contract have same
meaning throughout contract). The plaintiffs do not
dispute that the term ‘‘foundation’’ appears throughout
the policy, not just in the provision pertaining to col-
lapse.12 In the absence of evidence of a contrary inten-
tion, therefore, we presume that the parties intended
the term to mean the same thing each time it is used,
rather than one thing for purposes of applying the col-
lapse provision and something entirely different for
every other purpose. See, e.g., Chesapeake Energy
Corp. v. Bank of New York Mellon Trust Co., N.A., 773
F.3d 110, 116 (2d Cir. 2014) (rejecting contract interpre-
tation that would ‘‘[cause] the term to mean different
things in different instances of its appearance’’). In con-
sidering the plaintiffs’ argument, we are also mindful
that, for the vast majority of single-family home owners,
there is only one foundation covered by their homeown-
ers insurance policy: the foundation located directly
beneath the home, on which the home rests. We dis-
agree, therefore, that a reasonable homeowner in the
plaintiffs’ position, upon reading the term ‘‘foundation’’
in his or her homeowners insurance policy, would
believe that the reference did not pertain to the founda-
tion attached to the house but, rather, to some other,
likely nonexistent foundation.
Finally, we reject the plaintiffs’ contention that the
foundation exclusion should not be enforced as written
because the policy expressly covers the ‘‘collapse of a
building or any part of a building’’ and a foundation
indisputably is part of a building. In the plaintiffs’ view,
excluding the foundation from coverage would render
coverage under the policy illusory. As this court has
explained, however, ‘‘[t]he reason for or purpose of an
exclusion clause in a policy is to eliminate from cover-
age specified losses . . . [that] except for the exclu-
sion clause would remain under the coverage. . . .
[T]he word exclusion signifies . . . circumstances in
which the insurance company will not assume liability
for a specific risk or hazard that otherwise would be
included within the general scope of the policy.’’ (Cita-
tions omitted; emphasis added; internal quotation
marks omitted.) Hammer v. Lumberman’s Mutual
Casualty Co., 214 Conn. 573, 588–89, 573 A.2d 699
(1990). Unless the exclusionary language eliminates
coverage altogether, it does not render the coverage
illusory. See, e.g., R.T. Vanderbilt Co. v. Hartford Acci-
dent & Indemnity Co., 333 Conn. 343, 373–74, 216 A.3d
629 (2019) (‘‘even a significant exclusion limiting avail-
able coverage does not mean that the insured did not
get the coverage for which it bargained . . . or that
the insurance policies . . . are rendered meaningless
by virtue of the denial of coverage’’ [internal quotation
marks omitted]); Connecticut Ins. Guaranty Assn. v.
Drown, 134 Conn. App. 140, 153, 37 A.3d 820 (2012)
(rejecting claim that coverage was illusory because,
‘‘[a]lthough [the] exclusion . . . place[d] limits on cov-
erage, [it did] not . . . [eviscerate] all coverage under
the policy’’), aff’d, 314 Conn. 161, 101 A.3d 200 (2014).
Accordingly, the fact that the clause at issue limits the
scope of the policy’s coverage for ‘‘a building or part
of a building’’ by excluding part of the building (the
foundation) does not render that coverage a nullity. As
the defendant stated at oral argument, the policy offers
unqualified coverage for the collapse of a building or
part of a building that may result from any number
of perils. There are even circumstances in which the
foundation itself is covered, such as when the collapse
is the result of wind, fire or an explosion, or if the
foundation collapses as a result of the collapse of the
building. Moreover, the defendant also acknowledges
that, even when the collapse of a foundation is excluded
from coverage because it resulted from hidden decay
within the foundation itself, any damage to the rest of
the building caused by that collapse would be covered.13
See, e.g., Campbell v. Norfolk & Dedham Mutual Fire
Ins. Co., 682 A.2d 933, 936 (R.I. 1996) (‘‘if the collapse
of the basement’s foundation was the cause of the build-
ing’s complete destruction, the insured could collect
for loss sustained to the upper portion of the dwelling
but not for damage to the foundation because loss to
the foundation was the direct result of the falling in of
the foundation itself and not the direct result of the
falling in of the entire building’’ (internal quotation
marks omitted)).
We acknowledge, as the plaintiffs note, that the
Rhode Island Supreme Court reached a different con-
clusion with respect to this issue in Campbell, a per
curiam opinion in which the court determined that the
foundation exclusion at issue ‘‘render[ed] illusory as
applied to the foundation the earlier policy provision
purporting to insure against the risk of ‘collapse of a
building or any part of a building.’ ’’ Id. The court in
Campbell did not explain, however, why exempting the
foundation from the provision granting coverage for
the collapse of a building would render that coverage
illusory, and we cannot perceive any justification for
that conclusion in light of the fact that the policy at
issue in that case, like the policy in the present case,
covers many other losses due to the structure’s col-
lapse. Indeed, the decision of the Rhode Island Supreme
Court in Campbell runs counter to that court’s repeated
holding, consistent with our own precedent and the
case law of virtually every other state, that a policy
provision offering coverage for a particular peril will
not be deemed illusory unless it would not result in
coverage under any reasonably expected set of circum-
stances. See, e.g., Great American E & S Ins. Co. v.
End Zone Pub & Grill of Narragansett, Inc., 45 A.3d
571, 576 (R.I. 2012) (‘‘[w]e will deem an exclusion to an
insurance policy illusory only when it would preclude
coverage in almost any circumstance’’ (internal quota-
tion marks omitted)); see Pressman v. Aetna Casu-
alty & Surety Co., 574 A.2d 757, 759 (R.I. 1990) (it was
against public policy to apply narrow definition to term
in insurance policy because such application rendered
coverage illusory); see also, e.g., Bethel v. Darwin Select
Ins. Co., 735 F.3d 1035, 1040, 1041 (8th Cir. 2013) (Min-
nesota law applies doctrine of illusory coverage to con-
strue insurance contracts ‘‘so as not to be a delusion
to the insured’’ and to avoid ‘‘functionally nonexistent’’
coverage (internal quotation marks omitted)); Cynergy,
LLC v. First American Title Ins. Co., 706 F.3d 1321,
1327 (11th Cir. 2013) (‘‘under Georgia law, an insurance
policy may not purport to offer coverage that inevitably
will be defeated by one of the policy’s exclusions—in
other words, the policy may not offer coverage that is
chimerical’’). In light of the foregoing, we conclude that
the term ‘‘foundation’’ in the plaintiffs’ homeowners
insurance policy unambiguously includes the plaintiffs’
basement walls and that the collapse provision in that
policy applies to any foundation located on the plain-
tiffs’ property, including the one beneath the plain-
tiffs’ house.
IV
We, of course, recognize the seriousness of the crum-
bling foundations problem that confronts the plaintiffs
in the present case, and we also acknowledge the grav-
ity of the problem for so many other homeowners state-
wide. Our sole task, however, is to construe the plain-
tiffs’ homeowners insurance policy as we would any
other such contract, that is, in accordance with its terms
as applied to the facts of the case. We have endeavored
to do so here.
The answer to the first certified question is ‘‘yes,’’ that
is, the ‘‘substantial impairment of structural integrity’’
standard is applicable to the ‘‘collapse’’ provision of the
plaintiffs’ homeowners insurance policy.
The answer to the second certified question is the
‘‘substantial impairment of structural integrity’’ stan-
dard requires a showing that the building is in imminent
danger of falling down or caving in, that is, in imminent
danger of an actual collapse.
The answer to the third certified question is ‘‘yes,’’
that is, the term ‘‘foundation’’ in the plaintiffs’ home-
owners insurance policy unambiguously includes the
basement walls of the plaintiffs’ home.
No costs shall be taxed in this court to any party.
In this opinion the other judges concurred.
* November 12, 2019, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
General Statutes § 51-199b (d) provides in relevant part: ‘‘The Supreme
Court may answer a question of law certified to it by a court of the United
States . . . if the answer may be determinative of an issue in pending
litigation in the certifying court and if there is no controlling appellate
decision, constitutional provision or statute of this state.’’
2
Following our acceptance of the certified questions, we granted permis-
sion to the following groups and individual to file amicus curiae briefs in
this appeal: The American Insurance Association, Property Casualty Insurers
Association of America, and the lnsurance Association of Connecticut, in
support of the defendant’s position, and Connecticut Senator Paul R. Doyle
and United Policyholders in support of the plaintiffs’ position.
3
The plaintiffs’ home was built in 1984.
4
The District Court granted the defendant’s motion with respect to the
plaintiffs’ claims alleging breach of the covenant of good faith and fair
dealing and violations of CUIPA and CUTPA, concluding, inter alia, that
there was no evidence that the defendant had denied the plaintiffs’ claim
in bad faith or otherwise demonstrated a pattern of not attempting in good
faith to promptly and fairly settle claims in which the defendant’s liability
was reasonably clear.
5
We note that, in its proposed third certified question, the defendant
requested that the District Court also seek guidance from this court as to
whether the term ‘‘retaining wall,’’ which, like the term ‘‘foundation,’’ is
excluded from coverage under the policy, unambiguously includes basement
walls. In light of our conclusion that the damage to the basement walls of
the plaintiffs’ home unambiguously falls within the coverage exclusion for
damage to the foundation; see part III of this opinion; we need not decide,
and do not decide, whether the same would be true under the coverage
exclusion for damage to a retaining wall.
6
See L. Foderaro & K. Hussey, ‘‘Financial Relief Eludes Connecticut Home-
owners with Crumbling Foundations,’’ N.Y. Times, November 15, 2016, p.
A24.
7
See, e.g., Clark v. Amica Mutual Ins. Co., Docket No. 3:16cv1573 (JBA),
2018 WL 2725441, *3–4 (D. Conn. June 6, 2018); Roberts v. Liberty Mutual
Fire Ins. Co., 264 F. Supp. 3d 394, 412–13 (D. Conn. 2017); Metsack v. Liberty
Mutual Fire Ins. Co., Docket No. 3:14-CV-01150 (VLB), 2015 WL 5797016,
*6 (D. Conn. September 30, 2015); Gabriel v. Liberty Mutual Fire Ins. Co.,
Docket No. 3:14-CV-01435-VAB, 2015 WL 5684063, *3–4 (D. Conn. September
28, 2015); Karas v. Liberty Ins. Corp., 33 F. Supp. 3d 110, 115 (D. Conn.
2014); Roy v. Liberty Mutual Fire Ins. Co., Superior Court, judicial district
of Tolland, Docket No. CV-XX-XXXXXXX-S (February 22, 2017).
8
Under both General Statutes § 51-199b (f) (3) and Practice Book § 82-
4, the order issued by a court certifying a question of law to this court must
state that this court may reformulate any question that is certified, and, in
accordance with those provisions, the certification order issued by the
District Court in the present case contained such a statement. See Karas
v. Liberty Ins. Corp., supra, 2018 WL 2002480, *5. In addition, both § 51-
199b (k) and Practice Book § 82-4 expressly authorize this court to reformu-
late any question certified to it.
We also note that, as originally certified, the third question would have
required us to determine whether the basement walls of the plaintiffs’ home
fall unambiguously within the meaning of the term ‘‘retaining wall’’ as well
as within the meaning of the term ‘‘foundation.’’ For the reason previously
set forth in footnote 5 of this opinion, we have reformulated the third
certified question by limiting it to the issue of whether the home’s basement
walls are a part of the foundation.
9
The plaintiffs call our attention to Webster’s New World Dictionary of
the American Language, which defines ‘‘foundation’’ as ‘‘the base on which
something rests; specif[ically], the supporting part of a wall, house, etc.,
[that is] usually of masonry, concrete, etc., and at least partially underground
. . . .’’ Webster’s New World Dictionary of the American Language (2d
College Ed. 1972) p. 551. According to the plaintiffs, under this definition,
because footings are the base on which basement walls rest, the term
‘‘foundation’’ reasonably may be understood to refer solely to the footings.
We are not persuaded. The definition of ‘‘foundation’’ contained in Webster’s
New World Dictionary of the American Language is fully consistent with
the definitions previously set forth because it defines a foundation as being
‘‘at least partially underground,’’ and footings, by their very nature, are
never ‘‘partially underground’’; they are entirely underground, below the
undersurface of the foundation walls and floor.
10
It bears noting that the only definitions of the term ‘‘foundation’’ to
which the court in Turner referred were definitions that, as the court itself
acknowledged, supported State Farm’s contention that the term unambigu-
ously encompasses basement walls. See Turner v. State Farm Fire & Casu-
alty Cos., supra, 614 So. 2d 1031–32.
11
As we previously noted, those items are identified in the policy as ‘‘an
awning, fence, patio, pavement, swimming pool, underground pipe, flue,
drain, cesspool, septic tank, foundation, retaining wall, bulkhead, pier, wharf
or dock . . . .’’
12
For example, ‘‘SECTION I—PERILS INSURED AGAINST’’ provides in
relevant part: ‘‘We do not insure . . . for loss . . . [c]aused by . . . [f]reez-
ing, thawing, pressure or weight of water or ice, whether driven by wind
or not, to a . . . [f]oundation . . . .’’ That section further provides: ‘‘We
do not insure . . . for loss . . . [c]aused by . . . [s]ettling, shrinking, bulg-
ing or expansion, including resulting cracking, of pavements, patios, founda-
tions, walls, floors, roofs or ceilings . . . .’’
In addition, ‘‘SECTION I—EXCLUSIONS’’ provides in relevant part: ‘‘We
do not insure for loss caused directly or indirectly by . . . [w]ater below
the surface of the ground, including water which exerts pressure on or
seeps or leaks through a building, sidewalk, driveway, foundation, swimming
pool or other structure.’’
13
As we previously noted, ‘‘Additional Coverage 8’’ of the policy provides
in relevant part: ‘‘Collapse: We insure for direct physical loss to covered
property involving collapse of a building or any part of a building caused
. . . by . . . b. [h]idden decay . . . . Loss to [a] . . . foundation . . . is
not included under [item] b. . . . unless the loss is a direct result of the
collapse of a building.’’ Under the express terms of the policy, therefore,
the collapse of a building or any part of a building, with the exception of
the foundation, caused by hidden decay anywhere in the building, even in
the foundation, is covered under the policy; loss to the foundation is excluded
from coverage if it caused by hidden decay within the foundation itself.