Walid Attamari v. Allstate Property and Casualty Insurance Company

WALID ATTAMARI * NO. 2024-CA-0128

VERSUS *
COURT OF APPEAL
ALLSTATE PROPERTY AND *
CASUALTY INSURANCE FOURTH CIRCUIT
COMPANY *
STATE OF LOUISIANA
*******

APPEAL FROM
SECOND CITY COURT OF NEW ORLEANS
NO. 2021-00876, “D”
Honorable Ernestine Lillie Anderson-Trahan, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge
Dale N. Atkins)

BELSOME, J., DISSENTS WITH REASONS

Adam S. Lambert
ATTORNEY AT LAW
3531 Plymouth Place
New Orleans, LA 70131

COUNSEL FOR PLAINTIFF/APPELLEE

James L. Donovan, Jr.
Sean M. Donovan
DONOVAN & LAWLER, APLC
4640 Rye Street
Metairie, LA 70006

COUNSEL FOR DEFENDANT/APPELLANT

JUDGMENT AMENDED AND AFFIRMED
AS AMENDED; EXCEPTION OF
PRESCRIPTION DENIED; ANSWER TO
APPEAL DENIED

OCTOBER 4, 2024

TFL

DNA

This matter arises out of a default judgment the insured, Walid Attamari

(Mr. Attamari), obtained against his insurer, Allstate Property and Casualty

Insurance Company (“Allstate”), as a result of injuries sustained in a May 25, 2018

automobile accident.

Mr. Attamari made an underinsured (“UM”) motorist demand against

Allstate after the tortfeasors’ insurer submitted its $15,000.00 policy limits. On

October 28, 2021, Mr. Attamari filed a Petition for Damages and Bad Faith (the

“Petition”), alleging that Allstate’s $7,500.00 unconditional tender offer (“tender

offer”)—one-half of his $15,000.00 UM coverage—was insufficient. After

receiving no answer from Allstate, Mr. Attamari obtained a default judgment on

February 14, 2022. The trial court awarded $6,500.00 in general damages;

$1,000.00 in lost wages; a $15,000.00 penalty for bad faith; and $7,500.00 for

reasonable attorney’s fees. Thereafter, the trial court denied Allstate’s motion for

new trial.1

1 Judge Ad Hoc Nadine Ramsey granted the default judgment and Judge E. “Teena” Anderson-

Trahan presided over Allstate’s Motion for New Trial.

1

On appeal, Appellant, Allstate, contends that Mr. Attamari did not follow the

proper procedures and did not establish a prima facie case to entitle him to a

default judgment. Allstate also alleges that Mr. Attamari’s Petition was prescribed,

as the complaint was filed more than two years after the underlying May 25, 2018

accident date. Mr. Attamari’s answer to Allstate’s appeal maintains the appeal is

frivolous and seeks damages and attorney’s fees.

The record supports Mr. Attamari complied with the requisite procedures

and put forth a prima facie case to obtain a default judgment. Moreover, the

allegations pled within the Petition show that it was timely filed within two years

of Allstate’s tender offer. Accordingly, we deny Allstate’s exception of

prescription and find no abuse of the trial court’s discretion in granting the default

judgment and denying Allstate’s motion for new trial.

However, the trial court’s awards of $15,000.00 for bad faith and $7,500.00

in reasonable attorney’s fees were excessive. The imposition of bad faith penalties

when a tender offer has been made is limited to fifty percent of the difference

between the amount owed and the tender offer. Hence, Allstate’s bad faith penalty

award is reduced to $3,750.00, which is fifty percent of the difference between Mr.

Attamari’s UM demand of $15,000.00 and Allstate’s $7,500.00 tender offer.

Concomitantly, the attorney fee award is reduced from $7,500.00 to $3,750.00,

which represents one-third of the total recovery pursuant to Mr. Attamari’s

contract with his counsel. Therefore, we amend the judgment, and affirm as

amended.

Further, we deny Mr. Attamari’s request for damages and attorney’s fees

based on a frivolous appeal, finding merit to some of the errors maintained by

Allstate.

2

FACTUAL AND PROCEDURAL HISTORY

Mr. Attamari was involved in an automobile accident and sustained injuries

when a vehicle operated by the tortfeasors, insureds of State Farm Mutual

Insurance Company (“State Farm”), ran a stop sign. Mr. Attamari claimed

injuries to his right wrist, cervical spine, upper thoracic area, and was diagnosed

with costochondritis. State Farm paid its policy limits of $15,000.00.

In June 2019, Mr. Attamari made an UM claim against Allstate, his insurer,

for all sums due in excess of the amount extended by State Farm. On December

19, 2019, Allstate unconditionally tendered $7,500.00, half of Mr. Attamari’s

$15,000.00 policy limits. Mr. Attamari rejected Allstate’s tender offer; and on

October 28, 2021, proceeded to file the Petition, seeking damages and penalties for

Allstate’s bad faith. The Petition, filed in Second City Court for the City of New

Orleans (“Second City Court”), was served on Allstate on December 1, 2021.

Upon receiving no answer or communication from Allstate, Mr. Attamari filed a

Motion for Default on February 14, 2022. In the motion, Mr. Attamari asserted

that the Petition was filed on October 28, 2021; personal service was made on

Allstate on December 1, 2021, through the Secretary of State; his counsel sent a

letter via USPS First Class Mail to Allstate on February 2, 2021; and that no

answer had been filed as of the date Mr. Attamari sought the default judgment.2

The Clerk of Court certified that Allstate had not filed an answer.

At the hearing on the default judgment, Mr. Attamari testified regarding the

accident facts, his injuries, medical treatment—which included needles in his

2 For actions filed in parish and city courts, La. C.C.P. art. 4903 provides that “[t]he defendant

shall answer within ten days of the service of citation, except that when the citation is served
through the secretary of state, the delay, as to all defendants, shall be fifteen days after service.”

3

neck—medical expenses, and time missed from work. He asserted that it took

almost two years for him to fully recover. The record contained exhibits identified

as the police report of the accident; Mr. Attamari’s certified medical records from

Spine Care and East Jefferson General Hospital; a notarized statement from Mr.

Attamari’s employer verifying his wage loss; signed affidavits from the State Farm

tortfeasors, dated May 22, 2019, that no other insurance existed for the vehicle

involved in the May 25, 2018 accident; a May 24, 2019 signed release from Mr.

Attamari to State Farm reflecting settlement in the amount of $15,000.00 (the

“Release”); an August 8, 2019 check from State Farm to Mr. Attamari in the

amount of $13,014.20; an August 8, 2019 check for $1,985.80 from State Farm to

Mr. Attamari, his counsel, and Allstate; and lien information communications from

Allstate to Mr. Attamari listing Mr. Attamari as its insured in connection with the

May 25, 2019 accident date. The lien information also included correspondence

from Allstate to Mr. Attamari regarding medical payments and April 23, 2019

correspondence placing Mr. Attamari on notice of Allstate’s $1,985.80 subrogation

lien.

Prior to his summation, the trial court declined counsel’s request to question

Mr. Attamari.3 In his summation, counsel supported Mr. Attamari’s entitlement to

3 The transcript reflects the following exchange between Mr. Attamari’s counsel and the trial

court.

MR. LAMBERT:

And, your Honor, I have an Affidavit from his employer. He
works at Spur General Meyer. They said he missed more time
than that, but that’s what they have an easy record of. He missed
two weeks – the two weeks right after the accident and he had to
use all of his vacation time for two weeks, and he was paid Five
Hundred (500.00) a week. So I’ll give you, Your Honor, a chance
to look at all that and then I’ll make my summation, unless the
Court has any questions.

4

his maximum $15,000.00 UM limits with jurisprudence from the early 2000s that

placed a minimum award of $2,500.00 per month for similar injuries and allowed

for an increase in monthly damages from $2,500.00 to $4,500.00 based on the

current cost of living. At the hearing’s conclusion, “on producing to the Court due

proof in support of the plaintiff’s demands, the Court considering the law and the

evidence to be in favor of the plaintiff,” awarded Mr. Attamari the amounts

requested: $6,500.00 in general damages; $1,000.00 in lost wages; $15,000.00 for

bad faith penalties; and $7,500.00 for attorney’s fees.

Subsequent thereto, Allstate filed its motion for new trial. The motion

maintained that Mr. Attamari did not comply with La. C.C.P. art. 1702 procedures

to obtain a default judgment, included insufficient and inadmissible evidence, and

asserted—via a footnote–that the Petition was prescribed on its face because suit

was filed more than two years after the accident. Allstate re-urged its challenge to

the competency of the evidence at the hearing; however, it conceded that La.

C.C.P. art. 4904 governed the default judgment procedures for city court actions.4

Mr. Attamari countered that he presented competent evidence and followed

the procedures outlined in La. C.C.P. art. 4904 for a default judgment in actions

arising out of city courts. He added that Allstate’s December 19, 2019 tender offer

interrupted prescription; and therefore, the Petition was timely because it was filed

within two years of the tender offer.

The trial court denied Allstate’s motion for new trial. In rejecting Allstate’s

arguments, the trial court observed, in part, that “[i]t sounds like you [Allstate]

THE COURT:

I have no questions.
4 Mr. Donovan, Allstate’s counsel stated, in part, “[c]ounsel has cited Louisiana Code of Civil

Procedure Article 4904, which is, in fact correct; and my office was wrong in that regard.”

5

want to try and [c]ross-examine and do everything that happens at trial, but you

weren’t at the trial . . .” The trial court also inquired “[w]hy didn’t you [Allstate]

answer and come to [t]rial to say all of this?” Allstate acknowledged that it did not

file an answer until February 15, 2023, the day after the default judgment was

obtained.

Thereafter, Allstate timely filed the present appeal, and Mr. Attamari filed

an answer seeking damages for a frivolous appeal.

ASSIGNMENTS OF ERROR

Allstate’s assignments of error fall broadly within two categories: (1) the

trial court erred in granting the default judgment because Mr. Attamari did not

follow the proper procedures and lacked sufficient proof to obtain a default

judgment; and (2) Mr. Attamari’s Petition was prescribed on its face. This Court

shall first consider Allstate’s exception of prescription, as resolution of that issue in

Allstate’s favor would render moot the remaining errors regarding the validity of

the default judgment.

Exception of Prescription

Allstate’s exception of prescription is premised on its position that La. R.S.

9:5629 provides that UM claims are subject to a two-year prescriptive period and

the time begins to run from the date of the accident in which the damages were

sustained.5 Allstate emphasizes that the Petition is prescribed on its face because

the accident happened on May 25, 2018, and suit was not filed until October 28,

2021, more than two years after the accident date.

5 Louisiana Revised Statute 9:5629 states that “[a]ctions for the recovery of damages sustained

in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle
insurance policies are prescribed by two years reckoning from the date of the accident in which
the damage was sustained.”

6

In Louisiana, the burden of proof on an exception of prescription rests with

the party pleading the exception. See Med. Rev. Panel Proc. for Timpton v. Touro

Infirmary, 2020-0522, p. 5 (La. App. 4 Cir. 2/10/21), 313 So.3d 1022, 1027

(citation omitted). However, the burden shifts to the opposing party in the event

the face of the petition reveals the opponent’s case has prescribed. Id. In those

matters where evidence is introduced, the trial court’s findings are reviewed under

the manifest error standard of review. Id., 2020-0522, p. 4, 313 So.3d at 1027

(citation omitted). If no evidence is introduced, then the de novo standard of

review applies, and the exception is decided based on the petition’s allegations,

which are accepted as true. Id.

In the matter sub judice, Mr. Attamari’s Petition represented the following:

8.

An Underinsured Motorist (“UM”) claim was made on the defendant
insurer for all sums due in excess of the amounts paid by State Farm,
but defendant’s UM payment was untimely under the law and
defendant further refuses to pay the total amount due under the
circumstances.
9.

On or about December 19, 2019, the defendant made an unconditional
tender of $7,500.00 under the plaintiff’s UM policy, which amount is
half of the $15,000.00 policy limits and well below the amount
reasonably due under the circumstances for the plaintiff’s severe
personal injuries. Despite several demands therefore, the defendant
refuses to pay anything more.

10.

The defendant has refused to pay all of the amounts reasonably due
for the plaintiff’s serious injuries, medical expenses, and other general
and special damages owed.

11.

Said defendant insurer has violated its duties under McDill v. Utica
and Louisiana laws, including but not limited to those laws relating to
the duties of good faith and actions of bad faith by:

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A) Denying coverage arbitrarily and capriciously;
B) Failing to pay timely;
C) Failing to fairly and adjust the plaintiff’s claims; and
D) Failing to deal in good faith on a UM claim.

Accordingly, Mr. Attamari counters that “on the face of the petition,” his UM

complaint was timely in that the Petition—filed on October 28, 2021—was filed

within two years of Allstate’s unconditional tender, an act that interrupted

prescription pursuant to La. C.C. art. 3466 6 and Demma v. Auto. Club Inter-Ins.

Exch., 2008-2810 (La. 6/26/09), 15 So.3d 95. We agree.

In Demma, 2008-2810, pp. 7-10, 15 So.3d at 100-02, the Court determined

that an unconditional payment made by the uninsured motorist carrier to the

insured was an acknowledgement of liability sufficient to interrupt prescription.

Here, Mr. Attamari’s Petition alleged that Allstate made an unconditional tender

offer on December 19, 2019, and suit was filed on October 28, 2021. Allstate

offered no evidence at the motion for new trial hearing in support its exception of

prescription or to rebut Mr. Attamari’s claim of a tender offer. Under those

circumstances where no evidence is presented, “the exception is decided based on

the facts alleged in the petition, [] which are accepted as true.” Med. Rev. Panel

Proc. for Timpton, 2020-0522, p. 4, 313 So.3d at 1027 (citation omitted).

We also note that Mr. Attamari’s opposition to the exception of prescription

includes a copy of Allstate’s December 19, 2021 correspondence to his counsel

wherein Allstate conveyed a tender offer of $7,500.00.7 The correspondence

encompassed the following:

6 La. C.C. art. 3466 provides that “[i]f prescription is interrupted the time that has run is not

counted. Prescription commences to run anew from the last day of interruption.”
7 Mr. Attamari also represents that Allstate’s communication of the tender offer was made a part

of the record of the default judgment hearing.

8

12/19/2019

ADAM S LAMBERT,

ENCLOSED PLEASE FIND PAYMENT IN THE AMOUNT OF
$7500.00 FOR YOUR UNCONDITIONAL TENDER OF
UNDISPUTED AMOUNT FOR UNDERINSURED MOTORIST BI
LOSS OF 5/25/2018.

CLAIM NUMBER: 0503525957
DATE OF LOSS: 5/25/2018
INSURED: WALID ATTAMARI

In payment for Underinsured Motorist Bodily Injury for Date of Loss
5/28/2018.

Accordingly, applying the precepts set forth in Demma and Timpton, infra,

wherein we accept the facts pled in the Petition as true, Mr. Attamari’s Petition is

timely “on its face.” Moreover, Allstate’s December 19, 2019 tender offer

correspondence reinforces the timeliness of the Petition. Accordingly, this Court

denies Allstate’s exception of prescription. We now return to address the merits of

the appeal.

Default Judgment

Allstate’s errors regarding the propriety of the default judgment encompass

three categories, namely, that (i) default judgment procedures were not properly

followed; (ii) Mr. Attamari did not make a prima facie case for a UM claim; and

(iii) the evidence did not show bad faith and support the trial court’s judgment of

$15,000.00 for “the amount in controversy” and $7,500.00 in attorney’s fees.

Standard of Review

In reviewing a default judgment, an appellate court is limited to determining

the sufficiency of the evidence offered in support of the judgment. Sarasota,

CCM, Inc. v. Supreme Quality Transp., LLC, 2023-0658, p. 3 (La. App. 4 Cir.

3/6/24), 385 So.3d 307, 310 (citation omitted). As this finding is a factual one, the

9

manifest error standard of review applies to decide if the trial court’s

determinations were clearly wrong in light of the entirety of the evidence. Id.,

2023-0658, p. 4, 385 So.3d at 310-11 (citations omitted).

Proper Procedures

On appeal, Allstate relies on La. C.C.P. art. 1702 to argue that Mr.

Attamari’s alleged failure to place into the record a required notice letter, through

the Secretary of State, to advise Allstate that he intended to move for a default

judgment seven days before the default date and his failure to obtain a preliminary

default prior to confirmation of the default judgment were fatal defects. Louisiana

Code of Civil Procedure Article 1702(A)(1) provides, in part, that “[i]f a defendant

in the principal or incidental demand fails to answer . . . , a default judgment in

favor of the plaintiff may be rendered, provided that notice that the plaintiff intends

to obtain a default judgment is sent if required by this Paragraph . . . .”

However, Mr. Attamari responds that the Petition was filed in Second City

Court and default judgment procedures in city courts are controlled by La C.C.P.

art. 4904. In particular, La. C.C.P. art. 4904(A) expresses the following:

In suits in a parish court or a city court, if the defendant fails to
answer timely, or if he fails to appear at the trial, and the plaintiff
establishes a prima facie case by competent and admissible evidence,
a default judgment in favor of the plaintiff may be rendered.

There is no dispute herein that Mr. Attamari’s action was filed in Second

City Court. As such, La. C.C.P. art. 4904 controls the procedure to obtain a default

judgment. Upon review, La. C.C.P. art. 4904 does not mandate notice or a

confirmation of a preliminary default to obtain a default judgment. See Universal

Furniture House, Inc. v. Brown, 1994-193, p. 2 (La. App. 5 Cir. 7/26/94), 641

So.2d 640, 641. The article’s only requirement is for the plaintiff to establish a

10

prima facie case by competent and admissible evidence. Consequently, Allstate’s

claims that proper procedures were not followed because Allstate did not receive

notice or a preliminary default was not confirmed are not meritorious. 8

Prima Facie Evidence/ Proof of UM Coverage

An appellate court’s review of a default judgment considers whether the

record contains sufficient evidence to support a prima face case. See Gresham v.

Prod. Mgmt, Inc., 2002-1228, pp. 3-4 (La. App. 4 Cir. 2/11/04), 868 So.2d 171,

175 (citations omitted). A plaintiff seeking to obtain a default judgment must

support the elements of a prima facie case with competent evidence as fully as

though the defendant had denied each of the allegations. Id., 2002-1228, p. 4, 868

So.2d at 175. Competent evidence is that which convinces the trial court it is more

probable than not that the plaintiff would prevail at a trial on the merits. Id.

Allstate claims Mr. Attamari did not establish a prima facie UM claim

because he did not offer into evidence copies of the tortfeasors’ liability policy or

his Allstate insurance policy. In support of this claim, Allstate primarily relies on

Yancy v. Liberty Surplus Ins. Co., 2008-0280, pp. 2-3 (La. App. 4 Cir. 9/24/08),

996 So.2d 47, 49, and Peel v. Ray, 572 So.2d 739, 740 (La. App. 4th Cir. 1990).

In Yancy, 2008-0280, p. 1, 996 So.2d at 48, the defendants’ liability insurers

appealed the plaintiffs’ default judgment. The insurers argued, in part, that the

8 Mr. Attamari also argues that although La. C.C.P. art. 4902 imposed no duty to send notice of

intent to default to Allstate, nevertheless, he complied with the requirements of La. C.C.P. art.
1702(A)(4) to submit a courtesy copy of the impending default via regular mail. Louisiana Code
of Civil Procedure Article 1702(A)(4) states the following:

(4) In cases involving delictual actions where neither Subparagraph (2) or (3) of
this Paragraph applies, notice that the plaintiff intends to obtain a default
judgment shall be sent by regular mail to the party who fails to answer at the
address where service was obtained at least seven days before a default judgment
may be rendered.

11

plaintiffs failed to present any evidence of the insurance coverage afforded to the

defendants. Id., 2008-0280, p. 2, 996 So.2d at 48-49. The appellate court, relying,

in part, on Peel, vacated the trial court’s grant of summary judgment, determining

that without the introduction of the insurance contract, a valid default judgment

could not be entered. Id., 2008-0280, pp. 2-3, 996 So.2d at 49.

In Peel, 572 So.2d at 739, the plaintiff filed a suit against the defendant, the

defendant’s insurer, and Automotive Casualty, identified as “the

uninsured/underinsured, comprehensive and/or liability carrier for plaintiff.” At

the confirmation of the default judgment against his UM carrier, the plaintiff

testified he had “automobile insurance” with Automotive Casualty. Id., 572 So.2d

at 739. “No documents were presented to prove either the existence of an

insurance contract between the plaintiff and Automotive Casualty or to prove the

alleged personal injury.” Id., 572 So.2d at 739-40. Accordingly, the Peel Court

reversed the default judgment, noting that plaintiff had not produced any sufficient

evidence that Automotive Casualty was liable for any damages sustained or to

document his injuries. Id., 572 So.2d at 740.9 Notwithstanding the requirement for

9 In its reasoning, the Peel Court referenced Brown v. Trinity Ins. Co., 480 So.2d 919 (La. App.

2d Cir. 1985), a case where the plaintiff’s default judgment against the defendant’s alleged
insurer was reversed. The Court noted the following:

In Brown, the plaintiff presented letters from the insurer’s claims supervisors to
the plaintiff's attorney and a copy of a letter concerning settlement from the
claims supervisor to the finance company. The court found that the letters were
insufficient proof of insurance. In the instant case, the plaintiff testified only that
he had “automobile insurance” with defendant Automotive Casualty, without
offering the policy or specifying the type of insurance. Since the plaintiff in the
instant case offered even less proof of insurance than the plaintiff in Brown, he
failed to present sufficient evidence that Automotive Casualty was liable for any
damages he may have sustained in the automobile accident. Thus, the trial court
improperly granted the default judgment.

Peel, 572 So.2d at 740.

12

the production of the insurances policies, upon review, we find the facts of this

case distinguishable from Yancy and Peel and find the cases do not compel the

same results.

In Yancy, the plaintiff attempted to obtain a default judgment against the

liability insurers of the defendants without any evidence of the insurance policies

to show coverage—policies/contracts to which the plaintiff was not a party and had

no first-hand knowledge. Contrariwise, in the present case, Mr. Attamari sought

recovery against his own carrier. As such, as a party to the contract, Mr. Attamari

had independent, first-hand knowledge of its terms and conditions, and as

discussed herein, provided evidence of coverage.

Akin to this matter, this Court acknowledges that the Peel facts also

involved the validity of a default judgment granted against the plaintiff’s UM

carrier. However, the cases are dissimilar. In Peel, the default judgment was

reversed not only because the plaintiff did not provide the UM policy, he also

failed to produce any corroborating evidence of his UM coverage or supporting

evidence of his injuries—outside of his testimony. 572 So.2d at 740. This is not

the situation here.

As to evidence of the tortfeasors’ insurance coverage with State Farm, Mr.

Attamari’s exhibits included separate Sworn Statements of No Other Insurance

(“Sworn Statements”) from Latoya Bush and Chanell Bush, dated May 22, 2019,

attesting as follows:

[T]hat for the accident which occurred on May 25, 2018, the only
insurance available to pay for that claim was the state minimum
($15,000.00) liability policy with State Farm Mutual Insurance
Company. I specifically declare under oath that I have no other auto
liability insurance policy on this vehicle or any other vehicle.

13

Moreover, as previously noted, Mr. Attamari’s evidence of State Farm’s coverage

included the Release and the check payments from State Farm to Mr. Attamari and

Allstate, highlighting the accident date and naming Chanell and Latoya Bush as the

State Farm insureds.

As to proof of his Allstate insurance coverage, Mr. Attamari’s record

exhibits included the 2019 lien communication exhibits, which identified Mr.

Attamari as Allstate’s insured, referenced the accident date, medical payments

made, and notice of a subrogation lien. Allstate’s listing as a payee on the

subrogation check from State Farm to Mr. Attamari also underscored its status as

Mr. Attamari’s carrier. Further, as previously referenced, Mr. Attamari noted in

his opposition to the prescription exception, Allstate’s December 19, 2019 UM

tender offer. Mr. Attamari also offered into evidence the police report exhibit,

which identified the parties in the accident and their respective carriers.

Allstate submits, however, that the police report is not admissible because it

constitutes hearsay evidence. Nevertheless, Allstate avers that if the police report

were admissible, it suggests that a car dealership was the actual owner of the

tortfeasors’ vehicle. If such were the case, then, Allstate argues that Mr. Attamari

did not produce evidence of the car dealership’s insurance coverage for purposes

of determining if other liability coverages existed to compensate Mr. Attamari for

his damages and to undermine his entitlement to UM recovery against Allstate.

In an additional challenge to the liability limits on the tortfeasors’ vehicle,

Allstate also argues that the wording of the tortfeasors’ Sworn Statements does not

conclusively prove their involvement in the accident at issue or establish State

Farm maximum policy limits of $15,000.00. Allstate alleges that the Sworn

14

Statements were vague. It contends that the verbiage used does not rule out the

availability of another liability policy on the at-fault vehicle.

We agree with Allstate that inadmissible evidence, except that specifically

provided by law, cannot be used in support of a default judgment. See Martinez v.

Wilson, 2015-0384, p. 4 (La. App. 1 Cir. 12/17/15), 185 So.3d 65, 68 (citations

omitted). However, we find Allstate’s challenge to the admissibility of the police

report unpersuasive. This Court recognizes that Louisiana courts generally exclude

police reports from being admitted under any exception to the hearsay rule when

they contain conclusions and opinions from talking to other witnesses. See

Domingo v. State Farm Mut. Auto Ins. Co., 2010-264, 2010-316, p. 11 (La. App. 5

Cir. 11/9/10), 54 So.3d 74, 80 (citations omitted). Notwithstanding, in this case,

Mr. Attamari provided his own testimony regarding the accident facts and offered

the tortfeasors’ Sworn Statements regarding their participation in the accident.

Hence, there was other evidence in the record outside the police report to show the

accident facts, establish the tortfeasors’ liability, and the insurance coverages.

Under the circumstances, the admission of the police report into evidence, if error,

amounted to harmless error. See Goza v. Par. of West Baton Rouge, 2008-0086, p.

11 (La. App. 1 Cir. 5/5/09), 21 So.3d 320, 330 (citations omitted).

We also find that Allstate’s challenges regarding the existence of other

insurance coverages by the car dealership owner and the comprehensiveness of the

tortfeasors’ Sworn Statements are defenses to Mr. Attamari’s evidence that could

have been raised at trial. Such issues that might have raised in defense to the suit

are forever foreclosed upon rendition of the judgment of default. Gresham, 2002-

1228, p. 4, 868 So.2d at 175. Accordingly, these arguments require no review by

this Court.

15

“When a demand is based upon a delictual obligation, the testimony of the

plaintiff with corroborating evidence, which may be by affidavits and exhibits

annexed thereto which contain facts sufficient to establish a prima face case, shall

be admissible, self-authenticating, and sufficient proof of such demand.” Id.,

2002-1228, p. 4, 868 So.2d at 175 (citation omitted). Our jurisprudence is well-

settled that a party to a lawsuit may serve as his own “credible witness” provided

that he offers other evidence to corroborate his claim. See O’Rourke v. Tracy, 375

So.2d 747, 748 (La. App. 4th Cir. 1979). This corroboration means general

corroboration only, and does not compel independent proof of each detail of the

witness’ testimony. Id.

Here, Mr. Attamari provided general corroboration that State Farm was the

liability carrier for the tortfeasors and that the policy limits amounted to

$15,000.00. Nonetheless, State Farm, as the tortfeasors’ liability carrier, is not a

party to the default judgment at issue herein. Hence, inapposite to Yancy, Mr.

Attamari need not produce a certified copy of the State Farm liability policy where

its insureds have sworn to the policy’s existence, limits and provided other

corroborating evidence confirming the policy limits.

As to Allstate, Mr. Attamari testified and judicially admitted in his Petition

that he had an Allstate policy with UM limits of $15,000.00. He provided

corresponding exhibits and correspondence in which Allstate acknowledged Mr.

Attamari as its insured. Our jurisprudence is well-established that the issue as to

whether the corresponding evidence corroborates the plaintiff’s testimony is to be

determined by the factfinder; and should not be reversed unless it is clearly wrong.

See Taylor v. Clark, 304 So.2d 728 (La. App. 4th Cir. 1974). Here, the trial court

clearly accredited the testimony of Mr. Attamari, and we cannot say that it was

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clearly wrong to do so. As such, we find that Mr. Attamari’s testimony and the

corresponding evidence constituted general corroboration that Allstate was his UM

carrier without the necessity of offering into evidence an actual copy of the Allstate

policy. Therefore, based on the particular circumstances of this case, Mr. Attamari

provided competent prima facie evidence to recover UM benefits. This error lacks

merit.

Bad Faith

Allstate contends that the awards of $15,000.00 for the amount in

controversy and $7,500.00 for attorney’s fees should be set aside because Mr.

Attamari provided no evidence of bad faith in Allstate’s handling of his UM claim.

Louisiana Revised Statute 22:1892 provides, inter alia, the following:

A. (1) All insurers issuing any type of contract, other than those
specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the
Louisiana Revised Statutes of 1950, shall pay the amount of any claim
due any insured within thirty days after receipt of satisfactory proofs
of loss from the insured or any party in interest. . . .

....

B. (1)(a) Except as provided in Subparagraph (b) of this Paragraph,
failure to make such payment within thirty days after receipt of such
satisfactory written proofs and demand therefor . . . when such failure
is found to be arbitrary, capricious, or without probable cause, shall
subject the insurer to a penalty, in addition to the amount of the loss,
of fifty percent damages on the amount found to be due from the
insurer to the insured, or one thousand dollars, whichever is greater,
payable to the insured, or in the event a partial payment or tender has
been made, fifty percent of the difference between the amount paid or
tendered and the amount found to be due as well as reasonable
attorney fees and costs. . . .

The claimant in a UM claim has the burden of proving the insurer failed to pay the

claim within 60 days after receiving “satisfactory proof of loss.” See McDill v.

Utica Mut. Ins. Co., 475 So.2d 1085, 1089 (La. 1985).

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To establish a “satisfactory proof of loss” of an
uninsured/underinsured motorist’s claim, the insured must establish
that the insurer received sufficient facts which fully apprise the insurer
that (1) the owner or operator of the other vehicle involved in the
accident was uninsured or underinsured; (2) that he was at fault; (3)
that such fault gave rise to damages; and (4) establish the extent of the
damages.

Id. (citation omitted).

Mr. Attamari maintains that his testimony and the record evidence meet the

requisite elements to establish satisfactory proof of loss. He underscores that the

record supported he made a UM demand on Allstate; established the tortfeasors’

fault and their insufficient liability policy limits; produced certified medical

records and expenses which showed the nature and scope of his physical injuries;

related the injuries to the accident date; documented his wage loss; and Allstate’s

failure to timely pay.

A trial court’s determination as to whether an insurer acted in bad faith is

largely a factual finding that will not be disturbed on appeal absent manifest error.

See Arcenaux v. Amstar Corp., 2006-1592, p. 41 (La. App. 4 Cir. 10/31/07), 969

So.2d 755, 781 (citations omitted). In this matter, the trial court determined the

evidence showed that Mr. Attamari had UM coverage with Allstate; Allstate had

notice of the tortfeasors’ fault and lack of sufficient coverage; and Allstate failed to

timely make a reasonable offer to tender Mr. Attamari’s $15,000.00 policy limits

upon demand and receipt of medical records documenting his damages. Hence, in

according deference to the findings of the trial court, we cannot say that the trial

court was manifestly erroneous in its determination that Allstate acted in bad faith

and was arbitrary and capricious in its failure to timely tender the remaining

$7,500.00 of Mr. Attamari’s UM policy limits. However, we do find merit to

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Allstate’s argument that the awards of damages for bad faith in the sum of

$15,000.00 and reasonable attorney’s fees of $7,500.00 were excessive.

Bad Faith Damages

Mr. Attamari judicially admits that Allstate tendered $7,500.00, one-half of

his $15,000.00 UM limits. A review of the transcript reflects that Mr. Attamari’s

counsel requested bad faith penalties of $15,000.00—the self-designated amount in

controversy—specifically arguing that “we would be within our rights to ask for

double the amount of all damages, but we’re asking for double the amount of the

Seventy Five Hundred ($7500.00), which is the amount in controversy.” However,

La. R.S. 22:1892(B)(1)(a) calculates bad faith penalties in the event a tender has

been made based on “fifty percent of the difference between the amount paid or

tendered and the amount found to be due . . . .” In this case, fifty percent of the

difference between the amount due of $15,000.00 and the $7,500.00 tender equals

$3,750.00. Accordingly, we reduce the bad faith penalty award from $15,000.00

to $3,750.00.

Although La. R.S. 22:1892(B)(1)(a) allows for an award of reasonable

attorney’s fees for bad faith, the statute does not specify a formula to calculate the

award. The trial court awarded attorney’s fees herein of $7,500.00 based on

counsel’s representation that “my contract calls for one-third attorney’s fee which

is $7,500.00.” Consequently, the $7,500.00 fee amounted to one-third of the trial

court’s total award of $22,500.00, encompassing the awards of $6,500.00 in

general damages, $1,000.00 in lost wages, and $15,000.00 for bad faith. However,

upon this Court’s limitation of Mr. Attamari’s bad faith penalty award to

$3,750.00, his total recovery has been reduced to $11,250.00. Therefore, pursuant

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to counsel’s one-third recovery contract fee with Mr. Attamari, we amend the

reasonable attorney award to $3,750.00.

Motion for New Trial

Allstate timely sought a new trial to vacate the default judgment based on

alleged procedural defects and the competency of the evidence. To vacate a

default judgment based on procedural defects, the defendant who has been

properly served must demonstrate how it was prevented from filing a responsive

pleading or asserting its defenses. Kimble v. Curahealth New Orleans, LLC, 2020-

0286, p. 9 (La. App. 4 Cir. 7/8/20), 302 So.3d 579, 585. Here, Allstate admitted

that it had been properly served and made no claim that it had been unduly

prevented from timely filing a response or asserting defenses. Additionally,

Allstate raised no argument that the denial of its motion for new trial would

amount to a miscarriage of justice. See Lamb v. Lamb, 430 So.2d 51, 53 (La.

1983) (which reasoned that “not every motion for a new trial filed timely after a

default judgment warrants the granting of a new trial, for not every case is a

miscarriage of justice.”)

The standard of review for a trial court’s ruling on a motion for new trial is

abuse of discretion. See Kimble, 2020-0286, p. 4 (La. App. 4 Cir. 7/8/2020), 302

So.3d 579, 582 (citation omitted). Thus, having already found no procedural

defects and determined that competent prima facie evidence was offered to sustain

the trial court’s grant of the default judgment, the trial court did not abuse its

discretion in the denial of Allstate’s motion for new trial.

Answer to Appeal

In accordance with La. C.C.P. art. 2164, appellate courts have the authority

to render any judgment warranted by the record on appeal, including an award of

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damages for a frivolous appeal.10 See Hunter v. Maximum Grp. Behav. Servs.,

Inc., 2010-0930, p. 6 (La. App. 4 Cir. 3/16/11), 61 So.3d 735, 739. Damages for a

frivolous appeal will be awarded if appellant’s motive is simply to delay,

appellant’s counsel does not seriously believe in the cause he or she advocates, or

the matter presents no substantial legal question. Id. (citations omitted). However,

appeals are generally favored. Id. (citation omitted). Therefore, damages will not

be awarded unless the appeal is clearly frivolous so as to limit the possible chilling

effect frivolous damage awards would have on the appellate process. Id.

Mr. Attamari maintains the appeal is frivolous because Allstate does not

seriously believe in the position it advocates and the appeal is intended solely to

delay. Mr. Attamari stresses that although Allstate argues on appeal that it did not

receive proper notice for purposes of confirming a default judgment, Allstate

admitted at the hearing on the motion for new trial that La. C.C.P. art. 4904

controlled the confirmation of default judgments in city courts; and moreover, that

the article did not require such notice. Mr. Attamari also highlights that Allstate

knew its exception of prescription lacked merit and the Petition was timely filed as

Allstate’s own records showed it made a tender offer, which interrupted

prescription. Upon review, Mr. Attamari’s arguments are not meritorious.

Allstate’s appeal raised substantial legal issues. Specifically, this Court

found merit to Allstate’s arguments that the bad faith and attorney’s fees awards

10 Louisiana Code of Civil Procedure Article 2164 states the following:

The appellate court shall render any judgment which is just, legal, and proper
upon the record on appeal. The Court may award damages, including attorney
fees, for frivolous appeal or application for wits, and may tax the costs of the
lower or appellate court, or any part thereof, against any part to the suit, as in its
judgment may be considered equitable.

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were excessive. Accordingly, Mr. Attamari’s request for frivolous appeal damages

is denied.

DECREE

Based on the foregoing reasons, we amend the judgment to reduce the trial

court’s award of $15,000.00 to $7,500.00 for bad faith and reduce the reasonable

attorney’s fees award from $15,000.00 to $3,750.00. We affirm as amended the

default judgment in all other respects. We further deny Allstate’s exception of

prescription and Mr. Attamari’s answer to the appeal, which requested frivolous

appeal damages.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED;
EXCEPTION OF PRESCRIPTION DENIED; ANSWER TO
APPEAL DENIED

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