An Appeal Fails If the Cause of Judgment is not Argued

Insured Admits Flood Loss Sufficient to Deny Claim

Watch the full video at and to

Virginia Sosa appealed the district court’s decision granting summary judgment in favor of appellee Auto Club Indemnity Co. (“Auto Club”) and denying Sosa’s motion for a new trial. The court granted summary judgment on several of Auto Club’s claims, including that Sosa’s claims were barred by the statute of limitations and excluded by his homeowner’s insurance for flood and surface water damage. In Virginia Sosa v. Auto Club Indemnity CoNo. or surface water, which is not specifically designated for use by the landlord.


Sosa’s home was damaged during Hurricane Harvey on August 26, 2017. Soon after, Sosa filed a claim with Auto Club, which insured his home. Sosa said the flood water entered her home, her roof was missing shingles and leaking, and the interior was damaged. The Auto Club determined that the damage was caused by flooding, which was not clearly covered by Sosa’s homeowner’s insurance policy that was in effect during Hurricane Harvey.

On September 26, 2017, Auto Club denied the claims. On November 11, 2020, nearly three years after the denial and three years after the damage, Sosa sued Auto Club for breach of insurance.

Sosa filed a first amended petition, which was his complaint when the district court entered a judgment against him. Sosa’s amended petition was identical to his original petition, except that it changed the date of loss from August 26, 2017, to June 28, 2019.


The Auto Club filed a formal motion for summary judgment arguing that it should be remanded as a matter of law for several practical reasons. Auto Club argued that Sosa’s claim was barred by the two-year-and-a-day statute of limitations in Sosa’s policy because Sosa filed the lawsuit three years after the claim, and that Sosa’s policy did not cover flood damage. or surface water, which he argued was the basis of Sosa’s alleged damages.


The district court granted summary judgment for Auto Club. The court also found that Auto Club pleaded several counts of breach of contract against Sosa; Flood and surface water damage is not covered under this policy; and all flood and surface water damage is not provided for access. The court ordered that Sosa take nothing and rejected his claims with prejudice.


Sosa, if the plaintiff has to object to any independent objection that may be related to the impugned decision of the trial court. If an irrefutable reason supports the appeal decision or decision, the Court of Appeal must accept the validity of the independent irrefutable reason, and thus any error in the reasons challenged on appeal will not be harmful because the independent irrefutable ground fully supports the appeal. control or judgment.

The Auto Club sought summary judgment on four grounds.

  1. The Auto Club argued that Sosa’s claims for damages were not covered by the homeowner’s policy, so they were not subject to damages.
  2. The Auto Club said Sosa’s claims were time barred.
  3. Auto Club said its evidence disproves several elements of Sosa’s breach of contract claim.
  4. Auto Club argued that Sosa’s claims were not valid in the absence of a breach of contract.

Failure to Object to Summary Judgment

On appeal, Sosa contested only three of the four grounds. Sosa did not object to the summary judgment motion on the grounds that his claims were covered by the policy. Indeed, the summary does not refer to flooding or surface water.

A policy that does not cover the damages claimed is an independent reason that supports the exclusion of such claims. Because Sosa’s claim is joint in nature and Auto Club’s liability for its claims is based on the homeowners’ policy, Auto Club should not be liable for what is not covered by insurance.

The court of appeals held that it did not have to decide whether summary judgment was appropriate on all the grounds asserted for affirmance. Because Sosa did not challenge the judgment on appeal, the flood exception is consistent with summary judgment in favor of Auto Club.

Any other error complained of by Sosa on appeal would not be prejudicial in light of the undisputed facts in support of summary judgment. Because summary judgment was appropriate, the district court did not abuse its discretion in denying his motion for a new trial.

Summary judgment was appropriate. The Court of Appeals held that the district court did not act capriciously, unreasonably, or without due process of law or precedent in denying Sosa’s motion for a new trial.

The judgment in this case was affirmed.

The facts established that Auto Club had four grounds for summary judgment, one of which Sosa did not dispute or address in his brief. As a result, the Court of Appeals had no choice but to affirm the decision of the District Court because the complaint accepted that the Auto Club’s opinion was correct. The fact that he tried to cheat by changing the cast date was fraudulent, but in fact, it was a sloppy job that should have been approved.

(c) 2022 Barry Zalma & ClaimSchool, Inc.

Barry Zalma, Esq., CFE, now limits his practice to working as an insurance consultant specializing in insurance coverage, insurance litigation, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He has practiced law in California for over 44 years as an insurance and claims attorney and over 54 years in the insurance business. Available at

Subscribe to and receive the subscription-only Excellence in Claims Handling videos on

Subscribe to Best Practices in Complaints at

Now available Barry Zalma’s new book, Damage to Bad Faith, available here.


The book is available as a Kindle book, paperback or as a hardcover.

Write to Mr. Zalma at; daily news is published on Go to the podcast Zalma Pa Insurance at; Follow Mr. Zalma on Twitter at; Visit Barry Zalma’s videos on at; Visit Barry Zalma on YouTube-; Visit the Insurance Claims Library –