Insured’s Lose Default by Incompetent Proof

Default Judgment Reversed Because Plaintiff Failed to Admit Policy

When an insurance company is served with a suit and fails to respond the plaintiff insured will normally win an enforceable judgment. All they need do is prove the existence of the policy, that there was a claim, and the amount of the claim. Since there is no defendant in court and no evidence permitted after the plaintiff’s case, the plaintiff invariably wins.

In Ware v. Foremost Insurance Company, Court of Appeal of Louisiana, First Circuit — So.3d —-, 2016-1481 (La.App. 1 Cir.) 2017 WL 2399351 (6/2/17) the Wares sued Foremost who failed to respond. They put on a case before a trial court and received a judgment even though they did  not admit a copy of their policy to the court.


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 appealed 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.

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 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.


Initially, Foremost contended that the default judgment should be declared a nullity because no proof of service exists in the record. 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. The appellate court received proof that personal service was made on Foremost on April 20, 2016 by a sheriff’s deputy for the Parish of East Baton Rouge. Thus, the appellate court found that Foremost’s contention that no evidence of service exists is meritless.

Foremost also maintained that the trial court erred in confirming the default judgment against it because the Wares failed to introduce the alleged insurance policy between the Wares and Foremost into evidence.

Confirmation of the default is similar to a trial at which the defendant is absent. The plaintiff must present admissible and competent evidence that establishes a prima facie case, proving both the existence and the validity of the claim. Inadmissible evidence may not support a default judgment even though it was not objected to because the defendant was not present.

There is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered.

To prevail in a suit based on coverage under an insurance policy, the prima facie proof required includes introduction of the insurance policy into evidence. The insurance contract is an essential element of a plaintiff’s prima facie case against an insurance company for purposes of confirming a default judgment.  A jurisprudential exception to this rule is that when the plaintiff requests admissions of contractual coverage or production of the policy and the defendant fails to comply, the defendant’s failure to comply may be construed as supplying the missing proof.

The Wares’ suit was based on coverage under an insurance policy, thus the prima facie proof required in this case includes introduction of the insurance policy into evidence. While the Wares testified regarding the insurance policy and stated the policy number, the Wares did not introduce the insurance policy into evidence, nor did they file a request for admissions.

Because the Wares did not provide an essential element of their prima facie case against Foremost, the trial court erred in granting a default judgment in favor of the Wares against Foremost.


This case is evidence of lazy lawyering. The failure to admit the policy in a trial is sufficient to defeat any suit. The case goes back to the trial court who may not allow the insurer to file an answer or defend. Since proof of service was established another default prove-up can go forward and the plaintiffs may prove the policy. If the trial court allows an answer to be filed the case will go forward like any other case. The insurer should have responded to the complaint and the plaintiffs should have proved the existence of the policy. I predict settlement.



ZALMA-INS-CONSULT                      © 2017 – Barry Zalma

This article and all of the blog posts on this site digests and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 49 years in the insurance business.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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