164 So. 3d 249
La. Ct. App.2014Background
- Puderer sued Honey’s Amusement Corp. and Wattigny for injuries from an April 23, 2006 assault at Honey’s Pool Parlor.
- Defendants could not be served until a special process server was appointed (July 25, 2007) and service completed on November 9, 2007.
- Defaults were entered against both defendants (Dec. 6, 2007; Nov. 10, 2010).
- Puderer sought default judgment; hearing held Nov. 4, 2013; he testified to the assault and injuries.
- Trial court confirmed a default judgment for $107,283.65 plus interest and costs on Dec. 3, 2013.
- Wattigny appeals, arguing failure to introduce a sworn physician narrative or testimony, insufficient proof of service, and lack of apportionment analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prima facie proof under 1702(D) failed? | Puderer relied on medical records and bills as prima facie proof. | Wattigny contends 1702(D) requires sworn physician testimony or narrative. | Court vacates judgment for insufficient 1702(D) proof. |
| Was service properly established? | Plaintiff presented service returns. | Defendant contests sufficiency of service evidence. | Court need not reach this issue since judgment vacated on first issue. |
| Should liability have been apportioned? | Plaintiff sought full default award. | No formal apportionment analysis provided. | Not reached; vacated first, remand for proceedings. |
Key Cases Cited
- Gonzales v. Build-A-Bear Workshop, Inc., 30 So.3d 27 (La.App. 5 Cir. 2009) (prima facie case requires competent evidence; default proof standard)
- Dufrene v. Carter, 917 So.2d 1149 (La.App. 5 Cir. 2005) (medical records alone do not establish prima facie case under 1702(D))
- Mount v. Hand Innovations, LLC, 105 So.3d 940 (La.App. 5 Cir. 2012) (sworn physician testimony or narrative required; medical records insufficient)
- Arias v. Stolthaven New Orleans L.L.C., 980 So.2d 791 (La.App. 4 Cir. 2008) (default proof framework; discussed 1702(B)(2) and medical evidence)
- Oliver v. Cal Dive Intern., Inc., 844 So.2d 942 (La.App. 1 Cir. 2003) (physician letters in records not automatically prima facie proof in default)