Zalma on Insurance
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September 07, 2022
FLOOD EXCLUSION APPLIES TO DEFEAT CLAIM

Insured Admits Loss Caused by Flood Sufficient to Deny Claim

See the full video at https://rumble.com/v1iwpvj-appeal-fails-when-ground-for-judgment-not-disputed.html and at

Virginia Sosa appealed from the county court’s orders granting summary judgment in favor of appellee Auto Club Indemnity Co. (“Auto Club”) and denying Sosa’s motion for new trial. The court granted summary judgment on several grounds raised by Auto Club, including that Sosa’s claims were barred by limitations and by the exclusion in her homeowner’s insurance policy for damages caused by flood and surface water. In Virginia Sosa v. Auto Club Indemnity Co., No. 01-21-00312-CV, Court of Appeals of Texas, First District (August 30, 2022) the Court of Appeal resolved the dispute because Sosa did not, challenge the summary judgment ground that her claims were caused by flood or surface water, which is expressly excluded from coverage under her homeowner’s policy.
BACKGROUND

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 was leaking, and she had sustained interior damage. Auto Club determined that her damage was caused by flood water, which was expressly excluded from coverage under Sosa’s homeowner’s insurance policy that was in effect during Hurricane Harvey.

On September 26, 2017, Auto Club denied her claim. On November 11, 2020, almost three years after the denial and more than three years after the damage, Sosa filed suit against Auto Club for breach of the insurance policy.

Sosa filed a first amended petition, which was her live pleading when the county court entered 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 grounds effective grounds. Auto Club argued that Sosa’s claims are time barred by the two-year-and-one-day limitations period contained in Sosa’s policy because Sosa filed the lawsuit more than three years after her claims accrued, and that Sosa’s policy did not cover loss from flood or surface water, which it contended was the basis of Sosa’s claimed damage.
COUNTY COURT’S RULING AND MOTION FOR NEW TRIAL

The county court granted Auto Club’s summary judgment motion. The court also found that Auto Club had disproved several elements of Sosa’s breach of contract action; flood and surface water damages were not covered under the policy; and all flood and surface water damages were excluded from coverage. The court ordered that Sosa take nothing and dismissed her claims with prejudice.
SUMMARY JUDGMENT

Sosa, as an appellant must challenge each independent ground that could fully support the trial court’s challenged ruling. When an unchallenged ground supports a complained-of ruling or judgment, the Court of Appeal must accept the validity of that unchallenged independent ground, and thus any error in the grounds challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment.

Auto Club sought summary judgment on four grounds.

Auto Club argued that Sosa’s claimed damages were excluded from coverage under the homeowner’s policy, and therefore it was not liable for her damages.

Auto Club argued that Sosa’s claims were time barred.

Auto Club argued that its evidence disproved several elements of Sosa’s breach of contract claim.

Auto Club argued that Sosa’s extracontractual claims were not viable in the absence of a breach of contract.

The Failure to Dispute a Ground for Summary Judgment

On appeal, Sosa challenged only three of the four grounds. Sosa did not challenge the summary judgment order on the ground that her claimed damages were covered under the policy. Indeed, her appellate brief does not mention flood or surface water.

A policy provision that excludes claimed damages is an independent ground that supports dismissal of such claims. Because Sosa’s claims are contractual in nature and Auto Club’s liability for her claims flows from the homeowner’s policy, Auto Club is not liable for damages that are expressly excluded under the insurance policy.

The appellate court concluded that it need not decide whether summary judgment is meritorious on all stated grounds in order to affirm. Because Sosa did not challenge the ruling on appeal the flood exclusion ground independently supports summary judgment in Auto Club’s favor.
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Any other error about which Sosa complained on appeal is harmless considering the unchallenged ground supporting the summary judgment order. Because summary judgment was proper the county court did not abuse its discretion by denying her motion for new trial.

Summary judgment was proper. The Court of Appeal concluded that the county court did not act arbitrarily, unreasonably, or without reference to guiding rules or principles in denying Sosa’s motion for new trial.

The trial judgment was affirmed.
ZALMA OPINION

The facts established that Auto Club had four viable grounds for summary judgment, one of which Sosa did not dispute nor even mention in her appellate briefing. As a result the Court of Appeal had no choice but to affirm the decision of the County Court because her pleadings admitted that the Auto Club’s position was correct. That she tried to cheat by changing the date of loss was contumacious but, in effect, a wasted effort that should have been sanctioned.
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(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, 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 handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and [email protected].

Subscribe and receive videos limited to subscribers of Excellence in Claims Handling at locals.com https://zalmaoninsurance.locals.com/subscribe.

Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.
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Now available Barry Zalma’s newest book, The Tort of Bad Faith, available here.

The new book is available as a Kindle book, a paperback or as a hard cover.

Write to Mr. Zalma at [email protected]; http://www.zalma.com; http://zalma.com/blog; daily articles are published at https://zalma.substack.com.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma; Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at 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/

00:08:30
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See the full video at and at and at https://zalma.com/blog and more than 5150 posts.

You Plead Guilty You Must Accept the Sentence

In Commonwealth Of Pennsylvania v. Mark D. Redfield, No. 20 WDA 2025, No. J-S24010-25, Superior Court of Pennsylvania (September 19, 2025) the appellate court reviewed the case of Mark D. Redfield, who pleaded guilty to third-degree murder for killing April Dunkle with malice using a rifle.

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September 25, 2025
Prelitigation Communications Privileged

The Judicial Proceedings Privilege
Post 5196

Posted on September 25, 2025 by Barry Zalma

See the full video at and at

Judicial Proceeding Privilege Limits Litigation

In David Camp, and Laura Beth Waller v. Professional Employee Services, d/b/a Insurance Branch, and Brendan Cassity, CIVIL No. 24-3568 (RJL), United States District Court, District of Columbia (September 22, 2025) a defamation lawsuit filed by David Camp and Laura Beth Waller against Insurance Branch and Brendon Cassity alleging libel based on statements made in a letter accusing them of mishandling funds and demanding refunds and investigations.

The court examined whether the judicial proceedings privilege applieD to bar the defamation claims.

Case background:

Plaintiffs Camp and Waller, executives of NOSSCR and its Foundation, sued defendants Insurance Branch and Cassity over a letter alleging financial misconduct and demanding refunds and audits. The letter ...

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September 24, 2025
Untrue Application for Insurance Voids Policy

Misrepresentation or Concealment of a Material Fact Supports Rescission

Post 5195

Don’t Lie to Your Insurance Company

See the full video at and at https://rumble.com/v6zefq8-untrue-application-for-insurance-voids-policy.html and at https://zalma.com/blog plus more than 5150 posts.

In Imani Page v. Progressive Marathon Insurance Company, No. 370765, Court of Appeals of Michigan (September 22, 2025) because defendant successfully established fraud in the procurement, and requested rescission, the Court of Appeals concluded that the Defendant was entitled to rescind the policy and declare it void ab initio.

FACTS

Plaintiff's Application:

Plaintiff applied for an insurance policy with the defendant, indicating that the primary use of her SUV would be for "Pleasure/Personal" purposes.

Misrepresentation:

Plaintiff misrepresented that she would not use the SUV for food delivery, but records show she was compensated for delivering food.

Accident:

Plaintiff's SUV was involved in an accident on August ...

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The Dishonest Chiropractor/Physician

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Post 5185
Posted on September 8, 2025 by Barry Zalma

See the full video at https://lnkd.in/gePN7rjm and at https://lnkd.in/gzPwr-9q

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September 08, 2025
The Dishonest Chiropractor/Physician

How a Need for Profit Led Health Care Providers to Crime
Post 5185
Posted on September 8, 2025 by Barry Zalma

See the full video at https://lnkd.in/gePN7rjm and at https://lnkd.in/gzPwr-9q

This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers.

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How a Need for Profit Led Health Care Providers to Crime

See the full video at and at

This is a Fictionalized True Crime Story of Insurance Fraud from an Expert who explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the ­­­Perpetrators than any Other Crime.

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September 03, 2025

Barry Zalma: Insurance Claims Expert Witness
Posted on September 3, 2025 by Barry Zalma
The Need for a Claims Handling Expert to Defend or Prove a Tort of Bad Faith Suit

© 2025 Barry Zalma, Esq., CFE

When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.

On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...

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