Travis v. Commercial Union Ins. Co.

569 So. 2d 115, 1990 La. App. LEXIS 2294, 1990 WL 157511
CourtLouisiana Court of Appeal
DecidedOctober 16, 1990
Docket89 CA 0576
StatusPublished
Cited by10 cases

This text of 569 So. 2d 115 (Travis v. Commercial Union Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travis v. Commercial Union Ins. Co., 569 So. 2d 115, 1990 La. App. LEXIS 2294, 1990 WL 157511 (La. Ct. App. 1990).

Opinion

569 So.2d 115 (1990)

Joel TRAVIS
v.
COMMERCIAL UNION INSURANCE COMPANY.

No. 89 CA 0576.

Court of Appeal of Louisiana, First Circuit.

October 16, 1990.

*116 William Magee, Covington, for plaintiff-appellee.

Edward A. Rodrigue, Jr., Terry B. Deffes, New Orleans, for defendant-appellant.

Before LOTTINGER and CARTER, JJ., and DOHERTY,[*] J. Pro Tem.

CARTER, Judge.

This appeal arises out of a default judgment.

FACTS

On December 28, 1987, Marcel DeLeebeck, d/b/a Joe's Stop-N-Shop, requested that plaintiff, Joel Travis, assist him in moving a bait machine from his place of business to his home. Travis used his own vehicle to assist DeLeebeck in moving the bait machine. In the course of moving the machine onto Travis' vehicle, the machine shifted, causing Travis to fall and to sustain injuries.

On August 3, 1988, Travis filed suit for damages against Commercial Union Insurance Company (Commercial Union), as the alleged liability insurer of Marcel DeLeebeck, d/b/a Joe's Stop-N-Shop. Thereafter, Travis filed requests for production of the policy of insurance and admissions of certain facts.

Commercial Union did not answer the petition, nor did it answer or object to the requests for admissions. A default judgment was subsequently obtained against Commercial Union on January 5, 1989. In rendering the default judgment, the trial court determined that the Commercial Union policy, a portion of which was introduced into evidence, covered the accident.

*117 In his written reasons for judgment, the trial judge stated:

Plaintiff used the truck he owned to assist DeLeebeck in closing his business. He did not loan the truck to DeLeebeck for his use. The exclusion of Section II, Part B does not apply to `D. A private passenger non-owned automobile used in your business by any person other than yourself.'

Accordingly, the trial court awarded Travis special damages of $1,209.00 and general damages of $10,000.00.

From this adverse judgment, Commercial Union appeals, assigning the following errors:

(1) The trial court erred in finding coverage under a Commercial Union policy without competent evidence of an insurance policy.
(2) The trial court erred in finding that a claim for injuries sustained while loading a vehicle falls within the coverage of a general liability policy.

DEFAULT JUDGMENT

LSA-C.C.P. art. 1702A provides, in pertinent part, as follows:

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.

In order to confirm a judgment by default, the plaintiff must establish the elements of a prima facie case. A prima facie case is established only when the plaintiff proves the essential allegations of his petition, with competent evidence, to the same extent as if these allegations had been specifically denied. Thibodeaux v. Burton, 538 So.2d 1001 (La.1989); Auburn County v. Sheraton Hotel, 559 So.2d 41 (La.App. 4th Cir.1990); Campbell v. Kendrick, 556 So.2d 140 (La.App. 5th Cir.1990); Savic v. Assurance Company of America, 509 So.2d 460 (La.App. 3rd Cir.1987); Philip Werlein, Ltd. v. Central First Baptist Church, 489 So.2d 1026 (La.App. 1st Cir. 1986). In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at a trial on the merits. Thibodeaux v. Burton, 538 So.2d at 1004; Auburn County v. Sheraton Hotel, 559 So.2d at 43.

When the judgment recites that plaintiff has produced due proof in support of his demand and that the law and evidence favor the plaintiff and are against the defendant, the judgment is presumed to be rendered on sufficient evidence and to be correct. Succession of Rock v. Allstate Life Insurance Company, 340 So.2d 1325 (La.1976); Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972); Sudds v. Protective Casualty Insurance Company, 554 So.2d 149 (La.App. 2nd Cir. 1989). In order to obtain a reversal of a default judgment appealed from or to obtain a remand, the defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is correct. Succession of Rock v. Allstate Life Insurance Company, 340 So.2d at 1328-1329; Ascension Builders, Inc. v. Jumonville, 263 So.2d at 878. However, the presumption that the default judgment was rendered upon sufficient evidence and is correct does not apply where the testimony is transcribed and is contained in the record. Sudds v. Protective Casualty Insurance Company, 554 So.2d at 150-151; Savic v. Assurance Company of America, 509 So.2d at 462; Baham v. Faust, 373 So.2d 725 (La.App. 1st Cir.1979). In such a case, the reviewing court is able to determine from the record whether the evidence on which the judgment is based was sufficient and competent. Dunaway v. Woods, 470 So.2d 574 (La.App. 1st Cir. 1985); Hookfin v. Bourne, 469 So.2d 24 (La.App. 1st Cir.1985); Weaver v. Weaver, 438 So.2d 1149 (La.App. 1st Cir.1983).

In the instant case, the trial court record contains the transcribed testimony taken at the confirmation of default hearing. Accordingly, the presumption that the judgment was rendered upon sufficient evidence and is correct is inapplicable, and this court must determine whether the evidence upon which the judgment is based was sufficient and competent.

EVIDENCE OF INSURANCE COVERAGE

LSA-C.C.P. art. 1702B(1) provides:

*118 When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

Generally, when an obligation is based on a writing, prima facie proof of the obligation requires introducing that writing. Ascension Builders, Inc. v. Jumonville, 263 So.2d at 878; Sudds v. Protective Casualty Insurance Company, 554 So.2d at 151. A jurisprudential exception is that when the plaintiff requests admissions of contractual coverage or production of the policy, the defendant's failure to comply may be construed as supplying the missing proof. Sudds v. Protective Casualty Insurance Company, 554 So.2d at 151. See Succession of Rock v. Allstate Life Insurance Company, 340 So.2d at 1329.

In his petition, Travis alleged that, at all times pertinent hereto, "Commercial Union Insurance Company, had in full force and effect a policy of liability insurance covering Marcel DeLeebeck, d/b/a Joe's Stop-N-Shop, insuring against losses of the nature sustained...." Travis also filed a request for production of the insurance policy and a request for admissions. Travis requested admission of the following facts:

1. That the copy of the policy produced in connection with the request for production of documents herein is a genuine and authentic copy of the original.
2. That the vehicle being used by petitioner at the time of the accident was not a vehicle regularly used in the business of Joe's Stop-N-Shop.
3. That the vehicle was being used by Mr. Travis to assist Mr. DeLeebeck in moving his bait machine from his place of business.
4.

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Cite This Page — Counsel Stack

Bluebook (online)
569 So. 2d 115, 1990 La. App. LEXIS 2294, 1990 WL 157511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travis-v-commercial-union-ins-co-lactapp-1990.