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 filed a workers’ compensation claim listing J.J. Hooligan’s and insurer FirstComp.
- FirstComp moved to dismiss, asserting it had cancelled J.J. Hooligan’s workers’ compensation policy for nonpayment and had sent statutorily required notice of cancellation in November 2011 under Neb. Rev. Stat. § 48-144.03.
- FirstComp introduced affidavits, an internal spreadsheet showing a November 3, 2011 notice date, a certified-mail tracking number, and proof the Workers’ Compensation Court received cancellation notice in November 2011.
- The Workers’ Compensation Court found FirstComp had provided sufficient evidence of sending notice by certified mail and dismissed FirstComp as a defendant because it was not the insurer on the accident date.
- Greenwood appealed, arguing FirstComp failed to prove the employer actually received or that FirstComp mailed the certified notice (no return receipt and insufficient proof of office mailing practice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FirstComp complied with § 48-144.03 employer notice requirement for cancellation | Greenwood: FirstComp did not prove mailing — no return receipt and no evidence of office mailing practice; tracking number alone insufficient | FirstComp: Affidavits, internal records, and a USPS certified-mail tracking number show notice was sent | Court reversed dismissal: insufficient competent evidence FirstComp mailed notice as § 48-144.03 requires |
| Whether insurer bears burden to prove effective cancellation before loss | Greenwood: Employer should be protected absent proof of effective cancellation | FirstComp: Asserted it met its burden with the submitted evidence | Court reiterated burden is on insurer and found FirstComp did not meet it |
| Whether a tracking number alone establishes certified mail service | Greenwood: Tracking number doesn’t prove actual mailing | FirstComp: Relied on tracking number as evidence of mailing | Court held tracking number alone insufficient without proof of deposit or detailed mailing practice |
| Whether direct proof or office-practice proof is required to infer mailing | Greenwood: Lack of proof of office practice or direct deposit means no presumption of mailing | FirstComp: Claimed use of electronic USPS system constituted office practice evidence | Court held FirstComp failed to describe its electronic system sufficiently to establish an office-mailing practice inference |
Key Cases Cited
- Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (discusses receipt-of-mail and mailing proof principles)
- Houska v. City of Wahoo, 235 Neb. 635 (insufficient proof that item was mailed where evidence of deposit was lacking)
- Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14 (mailing presumption requires proof of mailroom procedure or authorized depository)
- Estermann v. Bose, 296 Neb. 228 (appellate courts need not address unnecessary issues)