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). She sued her employer and FirstComp Insurance seeking workers’ compensation benefits.
- FirstComp moved to dismiss, claiming it had canceled J.J. Hooligan’s workers’ compensation policy for nonpayment and had sent the required notice of cancellation to the employer under Neb. Rev. Stat. § 48-144.03 before the accident.
- FirstComp introduced three exhibits: employee affidavits, an internal spreadsheet showing a November 3, 2011 notice, and the notice of cancellation; a certified-mail tracking number generated by USPS; and proof the compensation court received notice and listed the policy canceled November 19, 2011.
- Greenwood argued FirstComp did not prove the employer actually received the certified-mail notice, offered no return receipt, and failed to establish an office mailing practice or direct proof of deposit with USPS.
- The Workers’ Compensation Court found FirstComp had timely sent the certified-mail notice and dismissed FirstComp as a defendant. Greenwood appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FirstComp proved compliance with § 48-144.03 by sending certified-mail notice to the employer | Greenwood: Tracking number and affidavits are insufficient; no return receipt or proof of mailing practice; creates genuine factual dispute | FirstComp: Employee affidavits, internal records, and USPS tracking number show the notice was sent by certified mail | Court: Reversed dismissal — insufficient competent evidence that notice was mailed; tracking number and bare affidavits do not prove certified mailing without direct proof or detailed office practice evidence |
| Whether FirstComp was properly dismissed as a party because coverage had been effectively canceled before the loss | Greenwood: Because notice was not proven, FirstComp remained a proper defendant | FirstComp: Cancellation effective Nov. 19, 2011, so it was not carrier at time of injury | Court: Dismissal reversed; factual question remains whether statutory notice was sent, so FirstComp cannot be dismissed on the present record |
Key Cases Cited
- Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (Neb. 2016) (discusses mailing presumptions and proof of certified-mail service)
- Houska v. City of Wahoo, 235 Neb. 635 (Neb. 1990) (affidavit that an item was placed in an internal mail receptacle insufficient to prove it was mailed)
- Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14 (Neb. 1992) (requiring proof of U.S. Postal Service depository or consistent office practice to invoke receipt-of-mail inference)
- Estermann v. Bose, 296 Neb. 228 (Neb. 2017) (appellate scope of review principles cited)