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).
- Greenwood sued J.J. Hooligan’s and FirstComp Insurance claiming FirstComp was the workers’ compensation carrier at the time of injury.
- FirstComp moved to dismiss, asserting it had canceled the policy for nonpayment and had sent a certified-mail notice of cancellation in November 2011, effective November 19, 2011.
- FirstComp introduced employee affidavits, an internal spreadsheet showing a November 3, 2011 mailing, a certified-mail tracking number, and proof that the compensation court received notice.
- The Workers’ Compensation Court found FirstComp had complied with Neb. Rev. Stat. § 48-144.03 and dismissed FirstComp; Greenwood appealed.
- The Nebraska Supreme Court concluded FirstComp did not present sufficient competent evidence that it actually mailed the certified notice or sufficiently proved its electronic mailing practice, reversed, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether insurer proved statutory notice of cancellation to employer under § 48-144.03 | Greenwood: FirstComp failed to produce return receipt or proof of office mailing practice; tracking number alone is insufficient | FirstComp: Tracking number, employee affidavits, internal records, and notice to court show compliance | Reversed: insurer failed to present sufficient competent evidence of mailing or of its electronic certified-mail process |
| Whether insurer was a proper defendant (i.e., insurer liable on date of injury) | Greenwood: If notice not proved, policy remained in force on injury date | FirstComp: Policy was canceled effective before injury; thus not a proper party | Reversed: dismissal improper because cancellation not proved |
Key Cases Cited
- Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676 (discusses proof required to establish certified-mail notice)
- Houska v. City of Wahoo, 235 Neb. 635, 456 N.W.2d 750 (affidavit of mailing to internal mail chute insufficient as matter of law)
- Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14, 480 N.W.2d 192 (mailing presumption requires proof of USPS depository or consistent office practice)
- Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (appellate courts need not address unnecessary issues)