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 naming J.J. Hooligan’s and FirstComp Insurance Company.
- FirstComp moved to dismiss, asserting it had canceled J.J. Hooligan’s workers’ compensation policy for nonpayment and thus was not the insurer at the time of the injury.
- FirstComp submitted three exhibits: employee affidavits asserting a certified-mail notice of cancellation was sent in early November 2011 (with an electronic certified-mail tracking number), an internal spreadsheet showing the notice date, and proof-of-coverage pages showing cancellation effective November 19, 2011.
- Greenwood argued FirstComp offered no return receipt or sufficient evidence of mailing practice and that a tracking number alone did not prove the notice was actually mailed.
- The Workers’ Compensation Court accepted FirstComp’s evidence and dismissed FirstComp as a defendant; Greenwood appealed.
- The Nebraska Supreme Court reversed, holding FirstComp failed to present sufficient competent evidence that it mailed the certified cancellation notice as required by statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FirstComp satisfied § 48-144.03 employer cancellation notice requirement | Greenwood: FirstComp did not prove actual mailing; no return receipt or adequate office practice proof; tracking number insufficient | FirstComp: Employee affidavits, internal records, and a certified-mail tracking number prove notice was sent by certified mail | The court held FirstComp did not present sufficient evidence of mailing under the statute; dismissal was erroneous |
| Standard of proof for statutory cancellation notice | Greenwood: Insurer must prove actual mailing or established mailing practice | FirstComp: Proof of creation of tracking number and internal records suffices | Court: Insurer bears burden; tracking number alone insufficient; must show actual deposit or reliable office practice evidence |
| Admissibility/effect of electronic certified-mail system evidence | Greenwood: System description absent; insufficient detail about how certified mail was produced | FirstComp: Use of USPS electronic mailing system shows compliance | Court: Electronic systems may be used, but party must explain how system produces certified-mail notices and transmits them; FirstComp failed to do so |
| Whether court should draw adverse inference for spoliation of mailing records | Greenwood: Court should infer against insurer for missing records | FirstComp: Not argued here | Court: Declined to reach spoliation argument as unnecessary after resolving insufficiency of evidence |
Key Cases Cited
- Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586 (Neb. 2016) (discussing standards for proving mailing and receipt in workers’ compensation context)
- Houska v. City of Wahoo, 235 Neb. 635 (Neb. 1990) (affidavit of mailing to non-USPS depository insufficient to prove mailing as a matter of law)
- Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14 (Neb. 1992) (testimony of depositing mail into building chute insufficient without proof chute led to USPS depository or reliable mail-collection practice)