Blake J. Bouillion v. Geico Marine Insurance Co.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-41

BLAKE J. BOUILLION

VERSUS

GEICO MARINE INSURANCE COMPANY

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APPEAL FROM THE
LAKE CHARLES CITY COURT
PARISH OF CALCASIEU, NO. 21-1543
HONORABLE RONALD C. RICHARD, CITY COURT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Sylvia R. Cooks, Chief Judge, and John E. Conery and Charles
G. Fitzgerald, Judges.

VACATED AND REMANDED.

Russell J. Stutes, Jr.
Russell J. Stutes, III
Stutes & Lavergne, LLC
600 Broad Street
Lake Charles, Louisiana 70601
(337) 433-0022
Counsel for Plaintiff/Appellee:
Blake Bouillion

Jedd S. Malish
King & Jurgens, LLC
201 St. Charles Avenue, 45th floor
New Orleans, Louisiana 70170
(504) 582-3800
Counsel for Defendant/Appellant:
GEICO Marine Insurance Company

FITZGERALD, Judge.

The issue on appeal is whether the trial court erred in confirming a default

judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Blake J. Bouillion, owns a recreational fishing boat insured by

Defendant, GEICO Marine Insurance Company. The boat was damaged when

Hurricane Laura ripped through Calcasieu Parish in August 2020. A few months

later, Blake submitted a claim to GEICO. GEICO, in turn, hired a marine surveyor,

Marine Consulting Inc. (MCI), to inspect the damage. GEICO also asked Blake to

obtain his own repair estimate.

To this end, Blake obtained an estimate from BNB Detailing (BNB). BNB

estimated total repair costs of $39,796.40. This estimate was given to MCI. MCI,

in turn, concluded that the estimate was unreasonably high. MCI then prepared its

own property damage estimate, concluding that $19,225.56 was more reasonable.

Based on the above, GEICO tendered payment to Blake in the amount of

$15,225.56. The tendered amount represents MCI’s estimate (or $19,225.56) less

Blake’s $4,000.00 deductible.

Thereafter, on August 26, 2021, Blake filed suit against GEICO. Blake

alleged that he was entitled to the total amount of the BNB estimate. Thus, Blake

sought breach-of-contract damages in the amount of $20,570.84. Blake further

sought penalties and attorney fees under La.R.S. 22:1892.

GEICO was served with the petition on September 13, 2021. No responsive

pleadings were filed. Ultimately, a default judgment was entered and later

confirmed against GEICO after an evidentiary hearing on October 27, 2021. In short,

the trial court awarded Blake $16,570.84 in damages for GEICO’s breach of the

insurance contract. Additionally, the trial court awarded Blake $84,000.00 in

combined statutory damages and penalties under La.R.S. 22:1973, along with

$33,563.61 in attorney fees under La.R.S. 22:1892. In total, the trial court awarded

Blake $134,131.45. GEICO timely appealed this judgment.

On appeal, GEICO assigns the following errors:

1. The Trial Court committed manifest error by awarding damages
to [Blake] for his claim for damages under the policy based upon
inadmissible hearsay.

2. The Trial Court committed manifest error by awarding [Blake]
statutory bad faith damages when he failed to prove his
underlying claim for damages under the policy.

3. The Trial Court committed manifest error by awarding [Blake]
damages and penalties pursuant to La.R.S. 22:1973 when his
Petition only alleged that he was entitled to recover penalties and
attorneys’ fees under La.R.S. 22:1892.

LAW AND ANALYSIS

GEICO’s first assignment challenges the sufficiency of the evidence offered

in support of the default judgment. We review this assignment using the manifest

error standard of review. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La.

5/5/09), 9 So.3d 815.

GEICO argues that the trial court awarded Blake damages under the insurance

policy based solely on inadmissible hearsay evidence. This, according to GEICO,

amounts to manifest error. We agree.

The first circuit addressed the prohibition of using hearsay evidence to

confirm a default judgment in Barnett v. State, Department of Health & Hospitals,

15-0633 (La.App. 1 Cir. 11/9/15) (unpublished opinion). There, the appellate court

explained as follows:

A judgment of default must be confirmed by proof of the demand
sufficient to establish a prima facie case. La. C.C.P. art. 1702. The
plaintiff has the burden of establishing a prima facie case by proving
with competent evidence the essential elements of his claim as fully as
if each of the allegations of the petition had been specifically denied.
Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258
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(La.1993). Simply stated, the plaintiff must present evidence sufficient
to convince the court that it is probable he would prevail at a trial on
the merits. Arias, 9 So.3d at 820. . . .

Confirmation of a default judgment is similar to a trial, and the
plaintiff is required to adhere to the rules of evidence despite there
being no opponent to urge objections. Arias, 9 So.3d at 820; Gorman v.
Miller, 12-0412 (La.App. 1 Cir. 11/13/13), 136 So .3d 834, 840 writ
denied, 13-2909 (La.3/21/14), 135 So.3d 620. “Because at a default
confirmation there is no objecting party, to prevent reversal on appeal,
both plaintiff and the trial judge should be vigilant to assure that the
judgment rests on admissible evidence” that establishes a prima facie
case. Arias, 9 So.3d at 820 (quoting George W. Pugh, Robert Force,
Gerald A. Rault, Jr., & Kerry Triche, Handbook on Louisiana Evidence
Law 677 (2007)). Inadmissible evidence, except as specifically
provided by law, may not support a default judgment even though it
was not objected to because the defendant was not present. Id. (citing
19 Frank L. Maraist, Civil Law Treatise: Evidence and Proof § 1.1, at
5 (2d ed.2007)). Thus, it has been repeatedly recognized that hearsay
evidence is not admissible in a proceeding to confirm a default
judgment, unless it falls within a hearsay exception or is expressly
authorized by La. C.C.P. art. 1702. Balakrishnan v. Louisiana State
Univ. Sch. of Med., 05-1266 (La.App. 4 Cir. 9/13/06), 939 So .2d 595,
598 writ denied, 06–2756 (La.1/26/07); 34 So.3d 261; Cunningham v.
M & S Marine, Inc., 05-0805 (La.App. 4 Cir. 1/11/06), 923 So.2d 770,
773. Absent any such exception or authorization, hearsay evidence
does not sustain the burden of proving a prima facie case necessary for
the confirmation of a default judgment. See McRay v. Booker T.
Washington Nursing Home, 30,399 (La.App. 2 Cir. 4/8/98), 711 So.2d
772, 775.

Id. at p. 2.1

Here, the only evidence that Blake introduced at the confirmation hearing to

support his claim for unpaid property damage was the BNB estimate. The BNB

estimate was admitted into evidence in conjunction with Blake’s testimony.

Significantly, Blake did not adduce the testimony of a representative of BNB to

authenticate the damage estimate or to establish the necessary foundation for the

opinions set forth therein.

1
Pursuant to 2021 La. Acts 174, § 5 (eff. Jan. 1, 2022), the Louisiana Legislature adopted
extensive amendments to the Louisiana Code of Civil Procedure articles pertaining to default
judgments. However, this opinion is governed by the pre-amended articles.
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Nevertheless, Blake contends that the BNB estimate is expressly authorized

under La.Code Civ.P. art. 1702(B)(1), which states in relevant part: “When a

demand is based upon a conventional obligation, affidavits and exhibits annexed

thereto that contain facts sufficient to establish a prima facie case shall be admissible,

self-authenticating, and sufficient proof of such demand.” Blake’s argument is

misplaced.

At the outset, there is no question that Article 1702(B)(1) creates an exception

to the hearsay rule. In other words, when a suit is based on a conventional obligation,

proof by affidavit is permitted in lieu of oral testimony. Here, however, no affidavits

were introduced into evidence. The BNB estimate was simply admitted into

evidence in conjunction with Blake’s testimony. On the record before us, the BNB

repair estimate is inadmissible hearsay.

In sum, the BNB estimate—which Blake used to prove his claim for damages

under the insurance contract—is inadmissible hearsay evidence. Without the BNB

estimate, Blake cannot prove the amount of these damages. Thus, Blake failed to

establish a prima facie case, and the trial court manifestly erred in confirming the

default judgment against GEICO.

Also, the trial court’s award of statutory damages and penalties is predicated

upon its award of damages for GEICO’s breach of the insurance contract. The same

is true for the award of attorney fees. Thus, our above ruling has the effect of

vacating the default judgment in its entirety. We will therefore forego any discussion

of GEICO’s remaining assignments of error.

DECREE

The default judgment is vacated in its entirety, and this case is remanded for

further proceedings. All costs of this appeal are assessed to Blake J. Bouillion.

VACATED AND REMANDED.
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THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Uniform Rules, Courts of Appeal, Rule 2-16.3

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