Barnes v. American Standard Ins. Co. of Wis.
297 Neb. 331
| Neb. | 2017Background
- Barnes held a motorcycle policy with American Standard that included underinsured motorist (UIM) coverage; insurer prepared cancellation notices dated September 18, 2013, allegedly effective October 1 for nonpayment.
- American Standard produced a USPS Form 3877 (Certificate of Mailing) showing three articles with tracking numbers but did not check the "Certified" box and omitted Barnes’ street address on the form; insurer’s mail-clerk affidavits described routine mailing procedures but no direct proof of certified mailing.
- Barnes swore he never received any cancellation notice and was involved in a motorcycle collision on October 10, 2013; he claimed UIM benefits in excess of the $100,000 recovered from the tortfeasor’s insurer.
- American Standard denied coverage asserting the policy had been cancelled; it moved for partial summary judgment on whether cancellation notice was sent by certified mail; Barnes cross‑moved for partial summary judgment that coverage remained in force.
- The district court granted American Standard’s motion, finding the totality of evidence established certified mailing and dismissed Barnes’ complaint; Barnes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether insurer complied with Neb. Rev. Stat. § 44-516(1) requiring cancellation notice be mailed by registered or certified mail | Barnes: no certified mailing proved; Form 3877 is defective and he did not receive notice | American Standard: Form 3877, tracking numbers, and routine-mailing affidavits prove certified mailing | Reversed: insurer failed to prove certified mailing as a matter of law; genuine factual dispute remains |
| Proper allocation of burdens on summary judgment when statutory mailing is at issue | Barnes: insurer bears burden to prove compliance before judgment | American Standard: presented evidence sufficient to meet its burden on summary judgment | Held insurer carries the burden and did not meet it for summary judgment; issues must go to factfinder |
| Evidentiary weight of USPS Form 3877 with defects | Barnes: defective Form 3877 (no certified box, missing street) proves only mailing evidence, not certified service | American Standard: Form 3877 plus habit evidence and tracking numbers suffice | Held Form 3877 without the certified designation and with omissions does not establish certified mail as a matter of law; cannot be resolved on summary judgment |
| Whether tracking numbers equal proof of certified mail | Barnes: tracking numbers alone do not establish certified service | American Standard: tracking numbers indicate certified mailing | Held tracking numbers do not substitute for proof of certified or registered mailing under § 44-516(1) |
Key Cases Cited
- Daniels v. Allstate Indemnity Co., 261 Neb. 671 (insurer bears burden to prove effective cancellation before loss)
- Houska v. City of Wahoo, 235 Neb. 635 (proof of mailing may be shown by customary-office-practice evidence but factual questions go to trier of fact)
- Ragan v. Columbia Mut. Ins. Co., 183 Ill. 2d 342 (statute’s recognized‑form requirement limits permissible proof of mailing; insurer has low threshold but must meet statutory form requirement)
- Coleman v. Commissioner, 94 T.C. 82 (defective Form 3877 may be insufficient; context of trial burden matters)
- Horton v. Washington County Tax Claim Bureau, 623 Pa. 113 (Form 3877 is a certificate of mailing evidencing only the date of mailing, not attachment of additional postal services)