Barnes v. American Standard Ins. Co. of Wis.
297 Neb. 331
Neb.2017Background
- Jimmy R. Barnes Jr. held three motor-vehicle insurance policies with American Standard, including a motorcycle policy with underinsured motorist (UIM) coverage.
- American Standard prepared cancellation notices on September 18, 2013, alleging nonpayment; notices listed an October 1 effective cancellation date and were addressed to Barnes at his mailing address.
- American Standard relied on USPS Form 3877 (Certificate of Mailing) and internal affidavits to show the notices were sent by certified mail; the Form 3877 at issue did not have the "Certified" box checked and omitted Barnes’ street address, though it bore tracking numbers and postal stamps.
- Barnes stated he never received the cancellation notice and was struck by an underinsured motorist on October 10, 2013; he recovered $100,000 but claimed damages exceeded that and sought UIM benefits from American Standard.
- District court granted American Standard’s motion for partial summary judgment that it had mailed the certified cancellation notice, denied Barnes’ motion, and dismissed Barnes’ complaint with prejudice; Barnes appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether American Standard mailed the cancellation notice by certified mail as required by Neb. Rev. Stat. § 44-516(1) | Barnes: No direct proof of certified mailing; Form 3877 is defective and he did not receive notice, creating a factual dispute | American Standard: Form 3877, tracking numbers, and employee affidavits establish certified mailing and compliance with § 44-516 | Reversed district court; evidence insufficient for summary judgment for insurer—issue of fact remains for trial |
| Burden of proof on statutory mailing requirement | Barnes: Insurer must prove certified mailing; burden not met here | American Standard: Habit evidence and Form 3877 suffice to meet burden on summary judgment | Insurer bears burden to show compliance; here it failed to meet it on summary judgment |
| Proper use and weight of Form 3877 (Certificate of Mailing) | Barnes: Defective Form 3877 (unchecked certified box, missing street) does not prove certified mail | American Standard: Tax-court precedent and habit evidence justify inferring certified mailing despite defects | Form 3877 without required entries furnishes evidence of mailing only and does not prove certified service; tax cases are not controlling here |
| Whether district court properly drew inferences in favor of the moving party | Barnes: Inferences should favor nonmoving party (Barnes) on summary judgment | American Standard: Inferences from forms and affidavits support granting its motion | Court erred by resolving factual disputes and drawing inferences for the movant on summary judgment; those inferences must favor Barnes |
Key Cases Cited
- Daniels v. Allstate Indemnity Co., 261 Neb. 671 (insurer bears burden to establish effective cancellation before a loss)
- Houska v. City of Wahoo, 235 Neb. 635 (absence of direct proof of mailing permits alternative evidence but creates question for trier of fact)
- Coleman v. C.I.R., 94 T.C. 82 (Certificate of Mailing defects limit presumption of timely mailing; context was trial, not summary judgment)
- United States v. Ahrens, 530 F.2d 781 (properly completed postal certificates may give presumption of regularity)
- Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342 (statute requires proof on recognized USPS form; insurer may not rely on other weaker evidence to meet statutory proof requirement)
- Horton v. Washington County Tax Claim Bureau, 623 Pa. 113 (Certificate of Mailing proves date of mailing but does not prove additional postal services such as certified mail)