Insured admits damage caused by flood sufficient to deny claim
Watch the full video at https://rumble.com/v1iwpvj-appeal-fails-when-ground-for-judgment-not-disputed.html and at https://youtu.be/buArlQZf41E
Virginia Sosa appealed the district court’s order granting summary judgment in favor of appellee Auto Club Indemnity Co. (“Auto Club”) and denied Sosa’s motion for a new trial. The court granted summary judgment on several grounds raised by Auto Club, including that Sosa’s claims were barred by the statute of limitations and by the exclusion in her homeowner’s insurance for damage caused by flooding and surface water. IN Virginia Sosa v. Auto Club Indemnity Co., No. 01-21-00312-CV, Court of Appeals of Texas, First District (Aug. 30, 2022), the appellate court resolved the dispute because Sosa did not challenge the summary judgment that her claim was caused by flooding or surface water, which are expressly excluded from coverage under her homeowner’s policy.
Sosa’s house was damaged during Hurricane Harvey on August 26, 2017. Shortly thereafter, Sosa filed a claim with Auto Club, which insured her house. Sosa reported that two feet of floodwater had entered her home, her roof was missing shingles and leaking, and she had sustained interior damage. The Auto Club determined that her damage was caused by floodwaters, which were expressly excluded from coverage under Sosa’s homeowner’s policy that was in effect during Hurricane Harvey.
On September 26, 2017, Auto Club denied her claim. On November 11, 2020, nearly three years after the denial and more than three years after the injury, Sosa filed suit against Auto Club for breach of insurance.
Sosa filed a first amended petition, which was her direct plea when the county court granted summary judgment against her. Sosa’s amended petition was identical to her original petition except that it changed the date of loss from August 26, 2017 to June 28, 2019.
AUTO CLUB’S MOTION FOR SUMMARY JUDGMENT
Auto Club filed a traditional motion for summary judgment, arguing that it was entitled to judgment as a matter of law on several effective grounds. Auto Club argued that Sosa’s claim is barred by the two-year-and-a-day limitations period found in Sosa’s policy because Sosa filed suit more than three years after her claim arose, and that Sosa’s policy did not cover loss from flood or surface water, which it claimed was the basis of Sosa’s alleged injury.
JUDGMENT OF THE DISTRICT COURT AND FOLLOWING ON A NEW TRIAL
The county court granted the Auto Club’s motion for summary judgment. The court also found that Auto Club had disproved several elements of Sosa’s breach of contract claim. flood and surface water damage was not covered by the policy; and all flood and surface water damage were excluded from coverage. The court ordered that Sosa take nothing and dismissed her claim with prejudice.
Sosa, as appellant, must challenge every independent basis that could fully support the court’s challenged ruling. When an unchallenged ground supports an impugned ruling or judgment, the appellate court must accept the validity of the unchallenged independent ground, and therefore any error in the grounds raised on appeal is harmless because the unchallenged independent ground fully supports the appealed ruling or judgment.
Auto Club moved for summary judgment on four grounds.
- Auto Club argued that Sosa’s alleged damages were excluded from coverage under the homeowner’s policy, and therefore it was not liable for her injuries.
- Auto Club argued that Sosa’s claim was time-barred.
- Auto Club argued that its evidence disproved several elements of Sosa’s breach of contract claim.
- Auto Club argued that Sosa’s non-contractual claims were not meritorious in the absence of a breach of contract.
The failure to contest a ground for summary judgment
In the appeal, Sosa contested only three of the four grounds. Sosa did not challenge the summary judgment order on the grounds that her claimed damages were covered by the insurance. Her appeal letter does not actually mention flooding or surface water.
An insurance provision that excludes claimed damages is an independent ground supporting denial of such claims. Because Sosa’s claim is contractual in nature and Auto Club’s liability for her claim stems from the homeowner’s insurance policy, Auto Club is not liable for damages expressly excluded under the policy.
The Court of Appeals concluded that it need not rule on the merits of summary judgment on all of the stated grounds in order to affirm. Because Sosa did not challenge the judgment on appeal, the flood exclusion plea independently supports summary judgment in Auto Club’s favor.
Any other error complained of by Sosa on appeal is harmless given the undisputed basis supporting the summary judgment order. Because the summary judgment was proper, the district court did not abuse its discretion in denying her motion for a new trial.
Summary assessment was correct. The Court of Appeal concluded that the county court did not act arbitrarily, unreasonably or without reference to guiding rules or principles in rejecting Sosa’s request for a new trial.
The judgment of the trial was affirmed.
The facts showed that Auto Club had four viable grounds for summary judgment, one of which Sosa did not contest or even mention in his appellate debriefing. As a result, the Court of Appeal had no choice but to uphold the County Court’s decision as her submissions conceded that the Autoklubben’s position was correct. That she tried to cheat by changing the date of the loss was devastating but really a wasted effort that should have been sanctioned.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims management, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims attorney and more than 54 years in the insurance industry. He can be reached at http://www.zalma.com and firstname.lastname@example.org.
Subscribe and receive videos limited to Excellence in Claims Handling subscribers at locals.com https://zalmaoninsurance.locals.com/subscribe.
Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.
Now available Barry Zalma’s newest book, Bad faith damages, available here.
the book is available as a Kindle book, paperback or hardcover.
Write to Mr. Zalma at email@example.com; http://www.zalma.com; http://zalma.com/blog; daily articles are published on https://zalma.substack.com. Go to the Zalma On Insurance podcast at https://anchor.fm/barry-zalma; Follow Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos on Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/