Greenwood v. J.J. Hooligan's
297 Neb. 435
| Neb. | 2017Background
- Lori Greenwood was injured on January 14, 2012 while employed by J.J. Hooligan’s (formerly Pies & Pints) and sought workers’ compensation benefits.
- Greenwood sued J.J. Hooligan’s and FirstComp Insurance Company after FirstComp told her it was not the carrier on the accident date due to nonpayment.
- FirstComp moved to dismiss, asserting it had canceled J.J. Hooligan’s workers’ compensation policy for nonpayment and had sent a certified-mail notice of cancellation in November 2011 under Neb. Rev. Stat. § 48-144.03.
- FirstComp submitted employee affidavits, an internal spreadsheet, a certified-mail tracking number, and proof the compensation court received notice; it did not produce a return receipt or direct proof of deposit with USPS.
- The Workers’ Compensation Court found FirstComp had complied with § 48-144.03, dismissed FirstComp as a defendant, and Greenwood appealed.
- The Nebraska Supreme Court reversed, holding FirstComp failed to present sufficient competent evidence that it sent the certified-mail notice to the employer as required by statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FirstComp proved compliance with § 48-144.03 notice-of-cancellation requirements | Greenwood: FirstComp did not show the notice was mailed; tracking number alone is insufficient; no return receipt or proof of office mailing practice | FirstComp: Employee affidavits, internal records, and a USPS certified-mail tracking number prove the notice was sent by certified mail | Held: Reversed — FirstComp failed to present sufficient competent evidence that it mailed the certified notice to the employer as required; tracking number and bare affidavits insufficient |
| Whether FirstComp was not liable because its policy was effectively canceled before the injury | Greenwood: Cancellation not proven; therefore FirstComp may still be carrier on date of injury | FirstComp: Policy was canceled November 19, 2011; thus it was not carrier on January 14, 2012 | Held: Because cancellation was not proven, dismissal of FirstComp was error; case remanded for further proceedings |
Key Cases Cited
- Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (discussing mailing/proof standards for statutory notices)
- Houska v. City of Wahoo, 235 Neb. 635 (1990) (affidavit that item was placed in county mail box insufficient to prove mailing)
- Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14 (1992) (office-mailbox testimony insufficient to establish U.S. mail deposit without proof of depository practice)
- Estermann v. Bose, 296 Neb. 228 (2017) (appellate court need not address unnecessary issues)