223 So. 3d 1
La. Ct. App.2017Background
- In April 2015 the Wares alleged wind/hail damaged their Denham Springs home and Foremost denied coverage after inspections.
- The Wares filed suit April 7, 2016 seeking damages and penalties under La. R.S. 22:1973 for bad-faith denial.
- Foremost did not answer; the trial court entered a preliminary default (May 19, 2016) and confirmed a final default judgment (May 26, 2016) awarding $30,821.80.
- Foremost appealed, arguing (1) the default was a nullity for lack of proof of service, and (2) the Wares failed to make a prima facie showing under La. Code Civ. P. art. 1702 because they did not introduce the insurance policy.
- The appellate court supplemented the record to include a sheriff’s return showing personal service on Foremost April 20, 2016, but reviewed whether the evidence at the confirmation hearing satisfied art. 1702.
- The court vacated the final default judgment and remanded because the Wares did not introduce the insurance policy into evidence, an essential element of a prima facie case on coverage; appeal costs were assessed to the Wares.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default judgment is null for lack of proof of service | Wares relied on minute entry and counsel's statement that Foremost was served | Foremost: no proof of service in record, so default is void | Service was proved after supplementation: sheriff's return showed personal service; default not void for lack of service |
| Whether evidence at default confirmation satisfied La. Code Civ. P. art. 1702 (prima facie proof of coverage) | Wares: testimony about the policy and policy number and independent adjuster report established coverage and damages | Foremost: Wares failed to introduce the insurance policy itself (and did not request admissions), so essential proof of contract was missing | Wares failed to introduce the insurance policy (and offered no request for admissions); trial court erred—default judgment vacated and case remanded |
Key Cases Cited
- Clay v. Clay, 389 So.2d 31 (La. 1979) (default cannot be entered against one not served)
- Arias v. Stolthaven New Orleans, L.L.C., 9 So.3d 815 (La. 2009) (standards for evidence sufficiency at default confirmation; inadmissible evidence cannot support default)
- Nelson v. Merrick, 970 So.2d 1019 (La. App. 1 Cir. 2007) (exception where defendant's failure to respond to requests for admissions/production may supply missing policy proof)