Greenwood v. J.J. Hooligan's
297 Neb. 435
| Neb. | 2017Background
- Lori Greenwood was injured on January 14, 2012 while working for J.J. Hooligan’s (formerly Pies & Pints, LLC) and sought workers’ compensation benefits.
- FirstComp Insurance claimed it had canceled J.J. Hooligan’s workers’ compensation policy for nonpayment before the accident and moved to be dismissed as a defendant.
- FirstComp introduced employee affidavits, an internal spreadsheet showing a November 3, 2011 cancellation notice, a certified-mail tracking number, and notice-of-coverage records showing the policy canceled effective November 19, 2011.
- Greenwood argued FirstComp failed to prove the employer actually received the certified-mail cancellation or that FirstComp established an office practice sufficient to create a mailing presumption; no return receipt was produced.
- The Workers’ Compensation Court found FirstComp had timely sent the certified-mail notice and dismissed FirstComp; Greenwood appealed.
- The Nebraska Supreme Court reviewed whether FirstComp provided sufficient competent evidence that it mailed the statutorily required certified-mail cancellation under Neb. Rev. Stat. § 48-144.03.
Issues
| Issue | Greenwood's Argument | FirstComp's Argument | Held |
|---|---|---|---|
| Whether insurer proved compliance with § 48-144.03 employer notice requirement (certified mail) | FirstComp did not prove mailing; tracking number and affidavits insufficient without return receipt or evidence of office mailing practice | Tracking number, employee affidavits, internal records, and court notice prove notice was sent | Reversed: FirstComp failed to present sufficient competent evidence of mailing; dismissal was erroneous |
| Whether receipt by employer is required for certified-mail notice under § 48-144.03 | Receipt or return receipt required to show effective cancellation | Statute deems notice given upon mailing; receipt not required for employer | Held: statute does not require employer receipt; insurer need only prove mailing, but FirstComp did not do so here |
| Standard and sufficiency of proof of mailing (direct deposit v. mailing practice inference) | No adequate proof of deposit or of a detailed office practice by which mail was reliably placed with USPS | Affidavits describing use of an electronic USPS-certified-mail system and tracking number suffice | Held: tracking number alone and bare assertions about an electronic system are insufficient; insurer must show direct deposit or sufficiently detailed office practice evidence |
| Burden of proof on cancellation before loss | Insurer bears burden to establish effective cancellation before loss | Same | Held: burden is on insurer; FirstComp did not meet it |
Key Cases Cited
- Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (discusses receipt-of-mail presumption and mailing proof)
- Houska v. City of Wahoo, 235 Neb. 635 (affidavit of mailing to an office mail chute insufficient to prove mailing)
- Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14 (requiring proof of U.S. Postal Service depository or consistent office practice for a mailing presumption)
- Estermann v. Bose, 296 Neb. 228 (appellate courts need not address unnecessary issues)