NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2018 CA 1482
SHAWN ALBE 1 ew VERSUS a r2G 4 LUIS S. CHAVIRA, JAMES P. DUFFOURC, SHAWN P. MITCHELL, ERLINDA A. BIERRIA, GEICO, THE GENERAL INSURANCE COMPANY, STATE FARM MUTUAL INSURANCE COMPANY
DATE OF JUDGMENT: FJUL 1 8 2019
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER 2016- 12019, DIVISION J, PARISH OF ST. TAMMANY STATE OF LOUISIANA
HONORABLE WILLIAM J. KNIGHT, JUDGE
Charles N. Branton Counsel for Plaintiff A - ppellee Covington, Louisiana Shawn Albe
Stephen Robert Barry Counsel for Defendants -Appellants
Kathleen Crowe Marksbury GEICO [ Government Employees New Orleans, Louisiana Insurance Company] General Insurance Company and GEICO Casualty Company
BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: AFFIRMED. t- CHUTZ, J.
In this personal injury suit, defendant -appellant, GEICO' Casualty Company
GEICO), appeals a default judgment rendered in favor of plaintiff a - ppellee,
Shawn Albe, against defendant, Luis Chavira, as well as the denial of GEICO' s
motion for new trial. For the following reasons, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
During March 2016, plaintiff was involved in two motor vehicle accidents.
The first accident occurred on March 1. According to plaintiff, as he was driving
across a bridge on old Highway 90 near the outskirts of Slidell, he saw a truck in
the westbound lane facing in the wrong direction. When the driver of the truck,
Luis S. Chavira, waved for plaintiff to pass, he did so. Plaintiff testified that after
he went a short distance, "[ h] e [ Chavira] flies up on the side of me and then
proceeds to go in front of my vehicle." As plaintiff started slowing down, he saw
the truck' s brake lights come on, and Chavira began backing the truck toward
plaintiff' s vehicle. Despite plaintiffs attempts to avoid a collision, the truck
driven by Chavira struck the right, front corner of plaintiff's vehicle. According to
plaintiff, Chavira was uninsured/ underinsured.
The state trooper who investigated the accident believed Chavira was
impaired by alcohol and placed him under arrest. Chavira was charged with
driving while intoxicated ( DWI), careless operation, and driving with a suspended
license. He later pled guilty to the DWI charge.
On March 28, plaintiff was involved in the second motor vehicle accident.
He alleges he was stopped in traffic when his vehicle was rear-ended by a vehicle
driven by Erlinda Bierria. According to plaintiff, GEICO was Bierria' s liability
carrier.
Government Employees Insurance Company.
0 On May 19, 2016, plaintiff filed a personal injury suit naming several
defendants, including Chavira and Bierria.2 Plaintiff later amended the petition to
add GEICO as an additional defendant, both in its capacity as Bierria' s liability
insurer and in its capacity as plaintiff' s own uninsured/underinsured insurance
carrier. Although Chavira was served with plaintiff' s petition on May 31, 2016, he
failed to file an answer. A preliminary default was entered against Chavira on July
139 2016, upon motion of plaintiff. Although La. C. C. P. art. 1702( A) allowed
plaintiff to confirm the preliminary default after two days, plaintiff did not do so at
that time.
At a status conference held on August 15, 2017, the district court concluded
the case was not in a procedural posture to set for trial." Shortly thereafter, the
court signed a scheduling order stating it would " entertain a motion to set the case
for trial on or after July 16, 2018." On February 9, 2018, plaintiff' s counsel
confirmed the preliminary default taken against Chavira at a hearing held before
the district court. On February 27, 2018, the district court signed a default
judgment finding Chavira liable to plaintiff for $ 126, 193. 49 in general and special
damages, as well as $ 100, 000. 00 in exemplary damages, plus judicial interest and
costs.
GEICO filed a timely motion for new trial from the default judgment,
alleging the judgment should be vacated or, alternatively, amended. The grounds
asserted for the motion were that plaintiff: ( 1) violated the district court' s order
regarding the earliest date the case could be set for trial ( i.e., July 16, 2018); and ( 2)
failed to provide advance notice to GEICO of the hearing to confirm the
preliminary default. Following a hearing, the district court denied GEICO' s
2 Subsequently, plaintiff settled his claims against Ms. Bierria and filed a motion and order to dismiss his claims against Ms. Bierria and GEICO, in its capacity as Ms. Bierria' s liability insurer. The district court signed the order of dismissal on September 27, 2017.
3 motion for new trial. GEICO now appeals the default judgment and the denial of
the motion for new trial taken from that judgment.
APPLICABLE LAW
Default Judgment:
If a defendant fails to answer a petition within the time provided by law,
judgment by default may be entered against him. La. C. C. P. art. 1701( A);
Arias v. Stolthaven New Orleans, LLC, 08- 1111 ( La. 5/ 5/ 09), 9 So. 3d 815, 819.
Thereafter, the preliminary default may be confirmed after two days, exclusive of
holidays, from the entry of the preliminary default, i.e., on the third " judicial day"
after the entry of the preliminary default. La. C. C. P. art. 1702( A); Arias, 9 So. 3d
at 819.
Confirmation of a preliminary default is similar to a trial at which the
defendant is absent and requires proof of the demand sufficient to establish a prima
facie case. La. C. C. P. art. 1702( A); Arias, 9 So. 3d at 820; NorthShore Regional
Medical Center, L.L.C. v. Dill, 12- 0850 ( La. App. 1st Cir. 3/ 22/ 13), 115 So. 3d
4759 480, writ denied, 13- 0866 ( La. 5/ 31/ 13), 118 So. 3d 396. The elements of the
prima facie case must be established with competent evidence as fully as though
each of the allegations in the petition had been denied by the defendant. In other
words, the plaintiff must present competent evidence that convinces the court that
it is more probable than not that the plaintiff would prevail at a trial on the merits.
Arias, 9 So. 3d at 820; Landry v. Boissenin, 08- 1240 ( La. App. 1st Cir. 12/ 23/ 08),
4 So. 3d 872, 873. In confirming the preliminary default, the plaintiff must prove
both the existence and validity of his claim. There is a presumption that a default
judgment is supported by sufficient evidence, but the presumption may be rebutted
by the record upon which the judgment is rendered. Arias, 9 So.3d at 820.
In reviewing default judgments, an appellate court is restricted to
determining the sufficiency of the evidence offered in support of the judgment.
11 The district court's conclusion regarding the sufficiency of the evidence is a factual
issue governed by the manifest error standard of review, which requires that great
deference be given to the district court' s findings of fact. Arias, 9 So. 3d at 818;
Landry, 4 So. 3d at 873.
Motion for New Trial:
Louisiana Code of Civil Procedure article 1972, which provides the
peremptory grounds for new trial, provides that a new trial shall be granted, upon
contradictory motion, where " the verdict or judgment appears clearly contrary to
the law and evidence." Wood v. Humphries, 11- 2161 ( La. App. 1st Cir. 10/ 9/ 12),
103 So. 3d 1105, 1116, writ denied, 12- 2712 ( La. 2/ 22/ 13), 108 So. 3d 769. A
motion for new trial based on the ground of being contrary to the evidence is
directed at the accuracy of the factfinder' s factual determinations and must be
viewed in that light. Therefore, the judgment should not be set aside if it is
supported by any fair interpretation of the evidence. See Davis v. Wal-Mart
Stores, Inc., 00- 0445 ( La. 11/ 28/ 00), 774 So. 2d 84, 93; Wood, 103 So. 3d at 1117.
Under La. C. C. P. art. 1973, a new trial may be granted in any case where
there is " good ground therefor." Thus, when the district court is convinced from
its examination of the facts that the judgment would result in a miscarriage of
justice, a new trial should be ordered. Bates v. Legion Indemnity Company, 01-
0552 ( La. App. 1 st Cir. 2/ 27/ 02), 818 So. 2d 176, 179- 80.
In a case involving a motion for new trial taken from a default judgment, the
district court should be mindful of public policy considerations, which weigh in the
defendant' s favor, dictating that every litigant should be allowed his day in court.
The district court has wide discretion in determining whether to grant a motion for
new trial, whether on peremptory or discretionary grounds. The court' s ruling will
be set aside only in a case of manifest abuse of discretion. Bates, 818 So. 2d at
180; Official Revision Comment ( d) to La. C. C. P. art. 1971.
E DISCUSSION
In a single assignment of error, GEICO argues the district court erred both in
confirming the preliminary default against Chavira and in denying GEICO' s
motion for new trial. Alternatively, GEICO asks this court to amend the default
judgment to state that the findings on liability and damages contained in the
judgment are not binding on GEICO and are not dispositive of the issue of
plaintiff's entitlement to uninsured/ underinsured motorist coverage.
Confirmation ofPreliminary Default:
GEICO contends the confirmation of the preliminary default on February 9,
2018, violated the district court' s scheduling order indicating no motion to set the
case for trial would be entertained prior to July 16, 2018. GEICO further argues the
default judgment is improper because plaintiff gave no advance notice to GEICO
of the hearing to confirm the preliminary default. We find no merit in these
contentions.
Initially, we note that the district court that confirmed the preliminary
default was the same court that issued the scheduling order. The district court was
in the best position to interpret its own order and whether plaintiff violated the
court' s order. The fact that the court conducted a hearing to confirm the
preliminary default on February 9, 2018, demonstrates it did not consider
plaintiff's confirmation of the preliminary default prior to July 16, 2018, to be a
violation of the scheduling order.
In arguing the confirmation of the preliminary default before July 16, 2018,
violated the scheduling order, GEICO relies on jurisprudence stating that
confirmation of a preliminary default is " similar" to a trial. GEICO asserts the
scheduling order, therefore, applied to the confirmation of the preliminary default.
GEICO is correct in asserting there is Louisiana jurisprudence stating
confirmation of a preliminary default is similar to a trial. See Arias, 9 So. 3d at
n 820; NorthShore Regional Medical Center, L.L.C., 115 So. 3d at 480.
Nevertheless, we are aware of no jurisprudence, and GEICO has cited none,
holding that confirmation of a preliminary default should be treated the same as a
trial. In fact, in recognition of the distinction between the confirmation of a
preliminary default and a trial, Official Revision Comment ( e) to La. C.C. P. arts.
1571 and 1572, which deals with the assignment for and notice of cases for trial,
states:
The minimum standards required by these articles are not applicable to summary cases. Neither are they applicable to default cases, although a confirmation of a default is, in a sense, a " trial." In this connection it is to be noted that the case cannot be set for trial prior to answer filed. [ Bolding added; citations omitted.]
Thus, it is clear that the rules relevant to setting cases for trial do not apply
to confirmations of preliminary defaults.' By logical extension, the same is also
true as to the scheduling order issued by the district court delineating the earliest
date on which the court would consider a motion to set the case for trial. The
court' s scheduling order did not apply to the confirmation of the preliminary
default by plaintiff.
Another consequence of the distinction between a trial and the confirmation
of a preliminary default is that, unlike with a trial, GEICO has not shown it was
entitled to receive advance notice of the confirmation of the preliminary default.
See Forman v Belew, 536 So.2d 821, 822- 23 ( La. App. 1st Cir. 1988); Newfield
v. Gruber, 457 So. 2d 1203, 1204 ( La. App. 1st Cir. 1984); Dismuke v. Quaynor,
25482 ( La. App. 2d Cir. 4/ 5/ 94), 637 So. 2d 555, 563, writ denied, 94- 1183 ( La.
7/ 1/ 94), 639 So. 2d 1164 ( these cases stand for the proposition that confirming a
preliminary default without prior notice to opposing counsel is not an ill practice
under La. C. C. P. art. 2004 unless plaintiff's counsel agreed to give his opponent
3 A further indication of the distinction between the confirmation of a preliminary default and a trial is the statutory framework that prohibits an ordinary proceeding from being set for trial prior to answer, whereas the confirmation of a preliminary default necessarily must occur prior to answer. See La. C. C. P. arts. 1571( A)(2) and 1702( A).
VA notice before confirming the preliminary default or led him to believe notice would
be given by pretending to negotiate a settlement). We know of no statutory
requirement that advance notice of the confirmation of a preliminary default be
given to opposing counsel. As noted above, Article 1571( A)( 1)( a), which requires
that all parties be given adequate notice of trial, does not apply to default
proceedings. Dismuke, 637 So. 2d at 562- 63; Official Revision Comment ( e) to
La. C. C. P. arts. 1571 and 1572.
A plaintiff is required to give advance notice to opposing counsel prior to
confirming a preliminary default only when plaintiff's counsel agreed to give
notice before confirming a default judgment or led opposing counsel to believe
notice will be given by pretending to negotiate a settlement. See Forman, 536
So. 2d at 822- 23; Newfield, 457 So. 2d at 1204. In the instant case, the record is
devoid of any evidence of any such agreement or circumstances. We note that at a
hearing on unrelated motions held approximately two months before the
confirmation, plaintiff' s counsel stated his intention to confirm the preliminary
default against Chavira " in the near future." There is no indication GEICO' s
counsel made attempt at that time to request advance notice of the any
confirmation from plaintiffs counsel.
Finally, GEICO argues the default judgment is contrary to the evidence in
this case. In particular, GEICO contends there is evidence that plaintiff' s injuries
pre- existed the March 2016 accidents, plaintiff was involved in multiple accidents
prior to the March 2016 accidents, plaintiff was a long-time drug abuser and had
tested positive for heroin only four months before the March 2016 accidents, and
plaintiff's subsequent drug rehabilitation resulted from a criminal guilty plea rather
than the March 2016 accidents.
To establish the prima facie case necessary for confirmation of the
preliminary default, plaintiff was required to present competent evidence
N. establishing it was more probable than not that he would prevail at a trial on the
merits in establishing Chavira was solely at fault in causing the March 1, 2016
accident and plaintiff was injured as a result. See Arias, 9 So. 3d at 820; Landry, 4
So. 3d at 873. In confirming the preliminary default, plaintiff was not obligated to
disclose defenses the opposing party potentially could have raised had he made an
appearance. See Alleman v. Guillot, 225 So. 2d 607, 612 ( La. App. 1 st Cir.), writ
refused, 254 La. 858, 227 So. 2d 596 ( 1969). Moreover, in reviewing the default
judgment, this court is restricted to determining the sufficiency of the evidence
offered in support of the judgment under the manifest error standard of review.
Arias, 9 So.3d at 818; Landry, 4 So. 3d at 873.
At the confirmation hearing, plaintiff gave testimony describing how he was
injured when Chavira passed him on the highway, then stopped and backed his
vehicle into plaintiff's vehicle. Plaintiff also testified about the specific injuries he
suffered and the effects those injuries had on his life, including his inability to
work for an extended period. Plaintiff further testified that as a result of the pain
he suffered due to the March 1, 2016 accident, he relapsed and again became
dependent on pain medications, leading to his inpatient treatment at a drug
rehabilitation facility.
In further support of his claims, plaintiff presented the deposition of the state
trooper who investigated the March 1, 2016 accident. The state trooper deposed
that he had "[ n] o doubt at all" that Chavira was impaired due to alcohol and that
Chavira' s impairment was the cause of the accident. The trooper placed Chavira
under arrest at the accident scene, and Chavira subsequently pled guilty to a DWI
charge.
Additionally, plaintiff presented the sworn medical narrative report of his
treating physician, who noted during a March 24, 2016 visit ( prior to the second
accident) that plaintiff had sustained injuries to his neck, back, left knee, and right
E forearm and was experiencing concussive symptoms. The physician opined that
plaintiff' s injuries were related to the March 1, 2016 accident, and he provided an
estimate of plaintiff' s future medical expenses. Plaintiff also introduced certified
medical records and bills supporting his claims, as well as an estimate of the
property damage to his vehicle, which was accompanied by an affidavit of the
person who prepared the estimate.
Based on plaintiff's testimony, the deposition testimony of the investigating
officer, and Chavira' s DWI guilty plea, the district court concluded Chavira was
solely at fault in causing the March 1, 2016 accident due to his intoxication. The
district court further concluded the March 1, 2016 accident exacerbated plaintiff' s
pre- existing injuries, which had resulted from prior, non -related accidents.
In awarding damages, the district court reviewed plaintiff' s certified medical
records and the sworn medical narrative report of his treating physician. Plaintiff
requested damages totaling $ 612, 500. 00, including $ 250, 000.00 in exemplary
damages pursuant to La. C. C. art. 2315. 4. Instead, the district court awarded
plaintiff a total of $126, 193. 49 in general and special damages, plus $ 100, 000 in
exemplary damages due to Chavira' s intoxication. The general and special
damages consisted of. $50, 000. 00 for general damages; $ 25, 000. 00 for past lost
wages; $ 25, 000. 00 for future loss of earning capacity; $ 25, 000. 00 for in-patient
drug rehabilitation; and $ 1, 193. 49 for property damage. The district court rejected
plaintiff' s claim for future medical expenses, finding them to be too speculative.
After a thorough review, we find no manifest error in the district court' s
factual conclusions regarding the March 1, 2016 accident and plaintiff's resulting
injuries. The evidence presented by plaintiff was sufficient to establish a prima
facie case both as to the existence and validity of plaintiffs claims. Considering
the evidence presented, we also find no abuse of discretion in the damages
awarded by the district court.
10 Motion for New Trial:
Initially, we observe that the grounds on which GEICO argued it was
entitled to a new trial are the same grounds on which GEICO argued the district
court erred in confirming the preliminary default. Specifically, in its motion for
new trial, GEICO contended the default judgment was clearly contrary to the law
and the evidence ( a peremptory ground under La. C.C. P. art. 1972( 1)). GEICO
further argued there was a " good ground" for a new trial ( a discretionary ground
under La. C. C. P. art. 1973) because plaintiff violated the district court' s scheduling
order and failed to give advance notice of the confirmation to GEICO' s counsel.
GEICO' s motion for new trial based on the default judgment being contrary
to the evidence challenges the district court' s factual findings. See Davis, 774
So. 2d at 93; Wood, 103 So. 3d at 1117. Since we have previously found the district
court' s factual findings were not manifestly erroneous, a new trial was not
warranted on this basis. Similarly, GEICO did not establish a " good ground" for a
new trial under La. C. C. P. art. 1973 since we have concluded plaintiff did not
violate the district court' s scheduling order and was not required to give GEICO
advance notice of the hearing to confirm the preliminary default under the facts
present. Accordingly, the denial of GEICO' s motion for new trial did not
constitute an abuse of the district court' s wide discretion.
AMENDMENT OF DEFAULT JUDGMENT
Finally, we reject GEICO' s alternative request that the default judgment be
amended to state it does not apply to GEICO. There is no need for such an
amendment since the default judgment was rendered against Chavira, not GEICO.
At its own trial, GEICO will have the opportunity to fully litigate the issues of
liability, insurance coverage, and damages. See Lafayette Insurance Company v.
C.E. Albert Construction Co., Inc., 98- 1831 ( La. App. 4th Cir. 3/ 31/ 99), 731
11 So. 2d 968, 972; Dismuke, 637 So. 2d at 563. Therefore, no purpose would be
served by this court amending the default judgment.
CONCLUSION
For the above reasons, we affirm the February 27, 2018 default judgment
rendered by the district court, as well as the denial of the motion for new trial filed
by GEICO with respect to the default judgment. All costs of this appeal are
assessed to GEICO.
AFFIRMED.