Don L. Nelson and Deslyn Nelson VS Cedrick Merrick, Bearden Sandwich Company, d/b/a Southern Belle Sandwich Company and Scottsdale Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2381 DON L NELSON AND DESL YN NELSON VS CEDRICK MERRICK BEARDEN SANDWICH COMPANY D B A SOUTHERN BELL SANDWICH COMPANY AND SCOTTSDALE INSURANCE COMPANY JUDGMENT RENDERED SEPTEMBER 19 2007 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT DOCKET NUMBER 530 924 DIVISION D PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE JANICE CLARK JUDGE RICHARD J KENNETH H DODSON ATTORNEYS FOR DON L NELSON AND HOOKS III BA TON ROUGE DESLYN NELSON LA ANDREW A BRAUN ATTORNEYS FOR DEFENDANT APPELLANT DAVID B WILSON NATIONAL UNION FIRE INSURANCE NEW ORLEANS COMPANY OF PITTSBURGH PA LA BEFORE MC 7 GAIDRY MCDONALD AND MCCLENDON JJ 11 lE 1 m bSJM rJrilImd n IZcmt j MCDONALD J This is against an judgment rendered insurer in the Nineteenth Judicial District Court For the appeal an excess following reasons of the confirmation of we reverse the Plaintiff Don L Nelson July was his August 15 2006 Union Fire Insurance defendant Statute for Service s April on was Co Inc petition requested pursuant August 31 struck from the rear by 2005 Nelson filed suit d b State to was PA Company of Pittsburgh was automobile accident in an 2006 2006 No against Company adding National National Union as a the Louisiana Direct Action According 11 filed a Southern Belle a insurer Scottsdale Insurance preliminary default filed October to the motion and order service of the first amended answer was filed into the record behalf of National Union On Monday October District other than the or In first amended a through the Secretary of petition was made on driving employer Beardon Sandwich Sandwich Co and Southern Belle In involved in was operated by Cedric Merrick Merrick trial comi judgment of the 2004 when the vehicle that he vehicle default a the one testified a letters from dollars in excess One letter was an dated umbrella coverage and the second dated excess would be forwarded was insurer the a randomly plaintiffs plaintiff offered and admitted was that there National Union regarding the of default at Deslyn who is also attorneys plaintiffs in the Nineteenth Judicial judge to whom this matter had been Additional evidence counsel for that 2006 duty judge heard the confirmation Don Nelson and his wife two 16 April 12 The insurance as more copy of policy providing 1 million 17 2006 indicating August information policy was not admitted 2 a matter 2006 informed only information available but that request in this including allotted at was that time received it into evidence Company of Pittsburgh 2 000 000 00 Nelson demand until filed was PA with costs of the the insurance policy sufficient evidence to establish vicarious and thus coverage under the sufficient evidence on evidence denied fully as The court that it is merits more must a default Bates 2 27 2002 818 So 2d 176 v of the facts at issue obtain prima facie a Burton default case allegations of produce judgment with competent the petition 538 So 2d 1001 that he would not La 1972 required 178 The insurance an prevail cause See 2006 0766 La A Co 2001 0552 plaintiff who must were 1004 in a trial 1 st court is La on the restricted knows ofa produce it when v La App prima facie G PA v to Cir that is it is the best evidence Jumonville 263 So 2d 875 issued by National Union case policy necessary to obtain a is is valid Strategic Forecasting Group Cir 2 9 07 959 So 2d 914 919 3 1st writing of action and introduction of the Grevemberg App appellate policy allegedly in order to establish the judgment judgment Acsension Builders Inc the foundation for this Inc v Legion Indem principal basis for his claims default to of the evidence offered in support of the sufficiency judgment 878 part of the insured present competent evidence that convinces the probable than reviewing determination of the produce Id When a a each of the though as plaintiff the plaintiffs failed 3 plaintiff to a by the defendant Thibodeaux 1989 on to to the issue of damages establish the elements of must liability failed plaintiffs plaintiffs failed 2 policy and It is well established that for he 1 error suspensive appeal A proceedings at issue Deslyn interest from the date of judicial alleging three assignments of introduce Don L Nelson and signed awarding together and all paid was Union Fire Insurance against National On October 19 2006 judgment Plaintiff is Insurance Co correct in 340 So 2d 1325 of the salient contractual in Succession noting that La 1976 the supreme court found that all upon which provisions Allstate failed to contention that the lieu of the However timely deny crux of the supreme court of the insurance production we s policy do to before important factors that us judgment reciting the evidence was that presumption evidence and is judgment the default correct does on which the case is able to judgment to a overcome 317 940 So 2d 79 the defendant missing proof s a by matter obtain that presumption a that the defendant The rendered was sufficient upon In such a case the consistently held that competent evidence judgment under v Aetna Johnston 82 failure to Id In this based is in the record The v Life an insurance policy Cas Ins Co Broussard La La 477 41 jurisprudential exception the plaintiff requests admissions of contractual coverage policy legal precept sufficient and competent was has default 385 So 2d 316 Cir 9 20 06 the to seeking are determine from the record whether the evidence jurisprudence support that in There contract 818 So 2d at 179 Bates insurance contract itself Holland Cir 1980 by was the evidence upon which the judgment sufficient was apply where the testimony is transcribed not judgment is based Further plaintiffs distinguishable from the bound sufficient which must be with that itself other evidence may be that the evidence is sufficient creates and is contained in the record court was based was Allstate in Rock teaching One is the fact that in Rock the defendant reversal of the default reviewing make Rock insurer not agree introduced to prove the existence of the insurance several suit plaintiff s found in requests for admissions directed were of Rock v Allstate Life comply Id 4 or may be constlued App 1 st App 2nd is that when production as is the of the supplying the We find that failure to introduce the insurance reversal of the default the judgment remaining assigmnents of Costs are assessed to Don L entered in this The enol Nelson and REVERSED 5 policy matter at issue and do judgment appealed Deslyn Nelson not requires address is reversed STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2381 DON L NELSON AND DESLYN NELSON VERSUS CEDRICK MERRICK BEARDEN SANDWICH COMPANY D B A SOUTHERN BELL SANDWICH COMPANY AND SCOTTSDALE INSURANCE COMPANY McCLENDON J agrees and I agree that the default judgment proof In this assigns case the excess admissions insurer said excess reasons in this record is insufficient to confirm the defendants other than the by additional two insurer on letters from counsel clearly do not qualify the issue of its coverage letters do not fall within the Rock jurisprudential representing exception as judicial Thus these
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