Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ware v. Foremost Insurance Co.

Court of Appeals of Louisiana, First Circuit

June 2, 2017

TRAVIS WARE AND JAMS WARE
v.
FOREMOST INSURANCE COMPANY

         On Appeal from the 21 st Judicial District Court In and for the Parish of Livingston State of Louisiana Trial Court No. 151, 789 Honorable M. Douglas Hughes, Judge Presiding

          Willis J. Ray Hammond, LA Attorney for Plaintiffs-Appellees, Travis Ware and Janis Ware.

          Valerie Briggs Bargas Baton Rouge, LA Attorney for Defendant-Appellant, Foremost Insurance Company.

          BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          HIGGINBOTHAM, J.

         In this case, the trial court rendered a default judgment in favor of plaintiffs, Travis and Janis Ware, and against defendant, Foremost Insurance Company, in the amount of $30, 821.80. Foremost appeals arguing that the default judgment should be declared a nullity because no proof of service exists. In the alternative, Foremost argues that the trial court erred in confirming the default judgment because the Wares did not present evidence sufficient to establish their prima facie case under Louisiana Code of Civil Procedure article 1702.

         FACTS AND PROCEDURAL HISTORY

         The Wares contend that in April 2015, during a spring thunderstorm, wind and hail caused significant damage to their home in Denham Springs, Louisiana. After the thunderstorm, the Wares contacted Foremost, their alleged homeowner's insurer, to request that the damage to their home be inspected. Foremost, on more than one occasion, inspected the Wares' home but denied coverage for their damages. Subsequently, the Wares retained an adjuster who inspected their home and determined that the cause of the damage to their home was wind and/or hail. The Wares forwarded the report of the independent adjuster to Foremost and again requested coverage, which Foremost denied. Thereafter, on April 7, 2016, the Wares filed a petition for damages against Foremost, seeking payment for damages their home sustained during the thunderstorm. Additionally, the Wares contended that Foremost's denial of coverage was a breach of good faith and fair dealing in contravention of La. R.S. 22:1973, and they sought statutory penalties as provided by the statute.

         On May 19, 2016, the trial court noted that all legal delays had elapsed since service of citation and the petition on Foremost, and ordered a minute entry reflecting a preliminary default. On May 26, 2016, the matter came before the trial court, and after a hearing, the trial court signed a final default judgment in favor of the Wares and against Foremost in the amount of $30, 821.80 in damages and penalties. It is from this judgment that Foremost appeals, contending that the default judgment should be declared a nullity because no proof of service exists. In the alternative, Foremost argues that the trial court erred in confirming the default judgment because the Wares did not present evidence sufficient to establish their prima facie case under La. Code Civ. P. art. 1702.

         STANDARD OF REVIEW

         When reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La. 5/5/09), 9 So.3d 815, 818. This determination is governed by the manifest error standard of review. Id.

         LAW AND ANALYSIS

         Proof of Service

         Initially, Foremost contends that the default judgment should be declared a nullity because no proof of service exists in the record. It is well settled that a default judgment may not be taken against a person who has not received citation and service thereof. Clay v. Clay,389 So.2d 31, 35-36 (La. 1979). Our review of the record reveals that the minute entry of May 19, 2016, indicates that Foremost was served with the petition. Additionally, in the transcript of the default confirmation hearing, the Wares' attorney stated that Foremost was served on April 20, 2016, at its registered address for service of process through the Secretary of State, and the trial court's clerk verified that no answer or opposition had been filed. Initially, the service return was not in the record, but because Rule 2-1.11 of the Uniform Rules of the Courts of Appeal provides that "[s]ubpoenas, notices, and returns may be omitted from the record, unless they are at issue[, ]" this Court ordered that the Clerk of Court for the 21st Judicial District Court supplement the record with any service returns. On ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.