Insured’s Failure to Challenge Trial Court’s Application of Exclusion Makes Appeal Futile

Tred R. Eyerly | Insurance Law Hawaii

    The Texas Court of Appeals affirmed the trial court’s granting of summary judgment to the insurer because the appeal failed to challenge the exclusion under which the insurer found no coverage. Sosa v. Auto Club Indemn. Co., 2022 Tex. App. LEXIS 6520 (Tex. Ct. App. Aug. 30, 2022).

    Sosa’s house was damaged during Hurricane Harry on August 26, 2017. Sosa filed a claim with Auto Club. She reported that two feet of floodwater had entered her home, her roof was missing shingles and was leaking, and she had sustained interior damage. An adjuster estimated the cost to prepare the roof damage was $1,191.96, less that her deductible. Auto Club determined that any remaining damage was caused by flood water, which was expressly excluded from coverage. 

    On November 11, 2020, Sosa filed suit against Auto Club for breach of the policy. Among other things, she argued the adjuster spent minimal time at her home inspecting and was inexperienced. In its answer, Auto Club asserted Sosa’s claim was time-barred by the statute of limitations. Sosa then filed an amended complaint and changed the date of the loss from August 26, 2017, to June 28, 2019. 

    Auto Club filed a motion for summary judgment, primarily arguing the suit was time-barred by both the statute of limitations and the two-year limitations period in the policy. The trial court granted summary judgment to Auto Club.

    On appeal, Sosa primarily agued hat her loss occurred in June 2019, not during Hurricane Harvey in 2017. Therefore, the lawsuit filed in November 2017 was not time-barred. She did not challenge the summary judgment order on the ground that her claimed damages were covered under the policy. Her appellate brief did not mention flood or surface water.  

    Sosa did not ague that the trial court erred by granting summary judgment on the ground that her policy excluded coverage for her damages because they resulted from flood or surface water. This ground independently supported summary judgment in Auto Club’s favor because Auto Club was not liable for damages expressly excluded under Sosa’s homeowner’s policy. Therefore, any other error about which Sosa complained on appeal was harmless in light of the unchallenged ground. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Insurer’s Motion for Summary Judgment on Business Interruption Claim Denied

Tred R. Eyerly | Insurance Law Hawaii

    The insurer’s motion to cap a potential business interruption claim after the insured failed to provide documentation was denied. Lake Charles Instruments Inc. v. Scottsdale Ins. Co., 2022 U.S. Dist. LEXIS 116802 (W.D. La. July 2, 2022).

    Plaintiff operated a business that was damaged during Hurricane Laura on August 27, 2020, and subsequently by Hurricane Delta on October 9, 2020. Plaintiff had a commercial property policy issued by Scottsdale that provided business income coverage of up to $500,000. 

    After Hurricane Laura, plaintiff submitted a claim. Plaintiff requested an advance. Scottsdale paid $50,000 on the business interruption (BI) claim while reserving rights to require full compliance with the policy, including submission of appropriate documentation. Scottsdale continued to request documentation, but none was received. Plaintiff also failed to provide documentation for its BI claim after Hurricane Delta. When documentation was finally provided, Scottsdale disputed that the documentation showed a BI claim that exceeded policy limits. Scottsdale determined the BI claim was below the policy limits.

    Plaintiff filed suit. Scottsdale moved for summary judgment because plaintiff had not provided any report or documentation to refute Scottsdale’s findings. Plaintiff opposed the motion, arguing that its secretary and treasurer was familiar with the company’s bookkeeping and records, and would be able to testify that the company lost more than $500,000 in business income as a result of the storms. 

    Scottsdale argued the declaration from the secretary/treasurer was unsupported and the lay testimony would be insufficient to create a fact issue. The court disagreed. Based on the secretary/treasurer’s knowledge and experience of the business operations after the storm, she could  testify and rebut the opinions offered by Scottsdale’s experts. Therefore, Scottsdale’s motion was denied.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Awarding Insurer Summary Judgment Before Discovery Completed Reversed

Tred R. Eyerly | Insurance Law Hawaii

    The Florida Court of Appeal reversed the trial court’s awarding of summary judgment to the insurer because discovery was not completed. Sacramento v. Citizens Prop. Ins. Corp., 2022 Fla. App. LEXIS 4292 (Fla. Ct. App. June 22, 2022).

    The insured filed a claim under the all-risk policy for water damage caused by Hurricane Irma. Citizens denied the claim based upon a policy exclusion. The insured filed suit on March 8, 2019.

    On April 24, 2020, Citizens moved for summary judgment. A hearing was set for August 10, 2020. Citizens filed a notice for a deposition of a Mitigation Company representative scheduled to occur on December 1, 2020. On August 14, 2020, the insured filed an opposition to the summary judgment motion arguing that it would be premature to grant the motion because there were still pending depositions. The insured specifically requested that the trial court not enter summary judgment until the mitigation company’s representative was deposed because he was a key witness who would be testifying regarding the cause of loss. 

    On August 18, 2020, the trial court heard the motion. Summary judgment was entered in favor of Citizens. The insured appealed.

    While the insured did not file a motion for continuance of the hearing, he did note the deposition in his opposition and called opposing counsel to ask to reset the hearing while the deposition of a key witness had already been noticed. Citizens itself defeated its own summary judgment motion by filing a notice of deposition of a key witness. 

    The trial court could not simply ignore a pending deposition of a witness whose testimony would most likely raise a genuine issue of material fact. The trial court’s order granting summary judgment was reversed and the case was remanded.

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Insured Survives Motion for Summary Judgment in Collapse Case

Tred R. Eyerly | Insurance Law Hawaii

   The insurer’s motion to exclude expert testimony and for summary judgment in a cases involving collapse was denied. Firehouse Church Ministries v. Church Mut. Ins. Co., 2022 U.S. Dist. LEXIS 53959 (D. Miss. March 25, 2022).

    A roof truss, a framework supporting the roof, collapsed in the church. The cause was either deterioration over time or a nearby tornado. The Church claimed that before the tornado passed, the church was clean and in orderly condition. When inspected after the tornado, there was debris and wreckage, including tin, insulation dust, plaster, and ceiling tile, on the floor. 

    The Church had a contractor, Gregory Blanchard, inspect. He added posts to support the truss and made other repairs, but informed the Church that the damage was worse than expected and it could not be easily repaired. 

    The Church filed a claim with Church Mutual Insurance Company (CMIC). An inspector, Jason Grover, was hired by CMIC. He reported the wind during the tornado was not sufficient to cause the damage. Instead, the damage was caused by a progressive failure of the main center roof truss and the supporting wall. Based on Grover’s findings, CMIC denied the claim. The Church then hired another inspector, Nathan Carter, who issued an expert report. Carter determined that the tornado was the only logical cause of the damage. 

    The Church sued, alleging breach of contract and bad faith. CMIC moved to exclude Carter as an expert and for summary judgment. 

    CMIC argued that Carter’s opinions were unreliable. He testified that he had dealt with “quite a few” tornados during his engineering career. He relied on public data from NOAA and is experience and education to determine wind speed. The court found that CMIC’s objections went to the weight and credibility of Carter’s testimony rather than its admissibility. His opinions were based on data, education, experience, and personal observation of the property. Therefore, his testimony was reliable and CMIC’s motion to exclude was denied.

    The court also denied CMIC’s motion for summary judgment. Grover had concluded that the roof truss failed due to long-term deterioration. The Church, on the other hand, relied on Carters’ opinions and conclusions. The court found that genuine issue of material facts existed as to whether CMIC breached the policy. The expert reports supplied differing opinions about what caused the truss to collapse – a material fact needed to decide whether coverage was warranted. A reasonable jury could decide that the roof truss failed due to the tornado and find for the Church as the nonmoving party. 

    Finally, the court granted CMIC’s motion for partial summary judgment on the bad faith claim. The court determined that CMIC had an arguable basis to deny payment due to its engineer’s conclusion that long-term deterioration of the roof truss damaged the building. The record reflected that CMIC realistically evaluated the claim despite the Church’s argument to the contrary.  CMIC acted on a reasonable belief that there was no coverage because the tornado did not proximately damage the property. 

When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 888.684.8305, or email

Insurer’s Late Notice Defense Fails on Summary Judgment

Tred R. Eyerly | Insurance Law Hawaii

    The insurer’s motion for summary judgment to dismiss the claim because the insurer did not provide notice “as soon as practicable” was denied. Vintage Hospitality Group LLC v. Nat’l Trust Ins. Co., 2021 U.S. Dist. LEXIS 192651 (M.D. Ga. Oct. 6, 2021). 

        Vintage owned hotels, one of which was struck by a severe hailstorm on July 21, 2018. Vintage was not aware of roof damage until two months after the storm, and did not make the connection between the hailstorm and roof damage until February 2020, when it reported the damage to National. The claim was denied because it was not reported “as soon as practicable” as required by the policy.

    Vintage sued and National moved for summary judgment. 

    Vintage did not notice the leaks until September 2018. The focus was on fixing the leaks, and connection to the hailstorm did not register. The leaks persisted over the next year and a half. A construction company was called in to evaluate the leaking roof. The construction company advised that the roof had experienced previous hail damage which was causing the leaks. At this point, Vintage connected the damage to the hailstorm. A claim was promptly submitted to National, which denied the claim.

    The National policy did not place a hard deadline for reporting a claim. Georgia law interpreted the phrase “as soon as practicable” as within a reasonable time considering all the circumstances. Vintage reported the claim within a few days of being informed by the roofing contractor that the leaky roof was caused by previous hail damage.

    The court found there was a genuine factual dispute as to whether Vintage gave notice as soon as practicable. The court denied National’s motion.