Will an Appeals Court Consider Evidence that Attorneys forget to “Offer and Introduce?”

law_justice_court_judge-1024x768Most lawsuits begin with a petition that lays out the facts and basis for a claim. These facts are pertinent to the survival of each claim and defense. Many pretrial hearings and motions are based on what is pleaded in the petition. The face of each pleading can determine the case’s outcome from the beginning. 

To attack the petition to have a lawsuit thrown out of court, attorneys will file motions alleging various exceptions. These exceptions can be based on different issues surrounding the case, such as a prescription or peremption exception. When arguing those exceptions, the attorney must be conscientious to “admit” all the evidence into the record that bolsters their position. The following lawsuit out of Ascension Parish, Louisiana, shows how important it is to properly admit evidence into the record when arguing in Court and what can happen when an attorney forgets to “offer and introduce” evidence filed with a motion.

William and Rosa Cambre owned a building they leased to Premier Performance Marine, L.L.C (Premier). Premier had the building insured by an Atain Specialty Insurance Company (Atain) policy. Therefore, when a storm severely damaged the building, Attain paid Premier under the insurance policy.

However, after Atain learned Premier did not own the building, Atain filed a lawsuit to recover the insurance payment. Additionally, the Cambres filed their lawsuit against Premier. Premier denied liability in both lawsuits and alleged Premier’s insurance agent Bourg was responsible for any misrepresentation or misinformation provided to Atain. Premier joined Bourg in a third-party demand and a cross-claim. 

La. R.S. 9:5606 sets forth a one-year and a three-year peremptive period for claims arising from obligations to provide insurance against insurance agents. Peremption is a period of time for which there is an existence of a right. Once the fixed period of time expires, the right is extinguished. Peremption may not be suspended or interrupted but may be raised in a peremptory exception. La. Code Civ. Pro. art. 927A(2). Evidence may be introduced to either support or oppose the exception of peremption. In the absence of evidence, an exception of peremption is decided on facts alleged in the petition.

The Parties in the proceeding failed to introduce any exhibits into evidence at the hearing on the exceptions. Therefore, the appeals court reasoned only facts alleged in the petitions could be considered. Denoux v.Vessel Management Se-rvices, Inc. Further, the appeals court held none of the petitions filed alleged facts sufficient to establish Premier’s claims are perempted. Bourg had the burden of providing evidence in support of its exception of peremption. Because no evidence was introduced or is contained in the record, the appeals court held the trial court legally erred in dismissing the claims against Bourg and further erred in sustaining the exception of peremption. 

The first pleadings and petitions filed in a lawsuit can set the course for an entire case. If a petition lacks sufficient alleged facts, it can mean your case is lost from the beginning. When filing exceptions attacking the petition, the exhibits and evidence must be admitted appropriately to be considered on appeal. A good attorney knows how to offer properly and introduce evidence into the record to give you the best possibility of success from the beginning. 


Written by Berniard Law Firm Blog Writer: Abigail Varney

Additional Berniard Law Firm Articles on Peremption and Insurance claims: Louisiana Legal Malpractice Case Examines Res Judicta and Peremption Exceptions.  

Court Affirms Denial of Claim for Failure to Comply with Flood Insurance Requirements

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