76 So. 3d 1257
La. Ct. App.2011Background
- McIntyre obtained a home purchase and hired an inspector through a realtor; inspection failed to include a requested video sewer inspection and a home warranty.
- HS conduct of the inspection is alleged negligent; homeowner incurred repair costs exceeding $40,000 and health and wage losses.
- McIntyre filed a petition for declaratory relief; HS, Swain, and Lexington (insurer) were served; preliminary default judgments were entered against Swain, HS, and Lexington.
- During default-confirmation, litigation sought to introduce Lexington policy and a post-purchase Gertler Brothers report, but neither was admitted into evidence; medical bills and corroborating invoices were not in record.
- Trial court confirmed default judgments against Swain/HS; Lexington’s appeal was suspensively converted to devolutive; Swain/HS died/withdrew; remaining issues centered on proof of Lexington’s insurance and timeliness of answers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Lexington properly proven as insurer by the policy evidence? | McIntyre asserts Lexington's policy was presented and supports liability. | Lexington contends policy was not admitted into evidence or record. | Default against Lexington reversed; policy not proven. |
| Did the record establish a prima facie case against Lexington to support the default judgment? | Policy and coverage facts establish insurer liability. | Insufficient evidence of the policy; terms/covers not in record. | Insufficient proof; reverse default against Lexington and remand. |
| Are the default judgments against George Swain and HS proper given untimely answers? | Answers from Swain/HS were timely or at least permissible on appeal. | Swain/HS filed untimely answers; cannot be considered. | Untimely answers; default against Swain/HS remains affirmed. |
Key Cases Cited
- Arias v. Stolthaven New Orleans, LLC, 9 So.3d 815 (La. 2009) (default confirmation requires admissible proof and prima facie case)
- Gresham v. Prod. Mgmt, Inc., 868 So.2d 171 (La. App. 4 Cir. 2004) (record must support prima facie case on review)
- Brown v. Trinity Ins. Co., 480 So.2d 919 (La. App. 2 Cir. 1985) (insurance contract essential to prima facie case)
- Hand v. City of New Orleans, 892 So.2d 609 (La. App. 4 Cir. 2004) (return-day timing and extensions impact appellate consideration)
- Cottingim v. Vliet, 19 So.3d 26 (La. App. 4 Cir. 2009) (timeliness of answers affects appellate consideration)