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Greenwood v. J.J. Hooligan's, LLC

Supreme Court of Nebraska

August 4, 2017

Lori Greenwood, Appellant,
v.
J.J. Hooligan's, LLC, formerly known as Pies & Pints, LLC, and FirstComp Insurance Company, Appellees.

         1. Workers' Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

         2. ___: ___. Determinations by a trial judge of the Workers' Compensation Court will not be disturbed on appeal unless they are contrary to law or depend on findings of fact which are clearly wrong in light of the evidence.

         3. Workers' Compensation: Insurance: Contracts: Notice. There is no requirement in Neb. Rev. Stat. § 48-144.03 (Reissue 2010) that a notice of cancellation sent by certified mail actually be received by the employer.

         4. Workers' Compensation: Insurance: Contracts: Notice: Proof. To show compliance with Neb. Rev. Stat. § 48-144.03 (Reissue 2010), the insurer need only prove that it sent the notice of cancellation by certified mail to the employer.

         5. Insurance: Contracts: Notice: Proof. When an insurance carrier is statutorily required to provide notice of cancellation before terminating a policy, the burden of establishing an effective cancellation before a loss is on the insurer.

         6. Notice: Proof. A party may prove it has mailed an item by direct proof of actual deposit with an authorized U.S. Postal Service official or in an authorized depository.

         [297 Neb. 436] 7. ___: ___. Absent direct proof of actual deposit with an authorized U.S. Postal Service official or in an authorized depository, proof of a course of individual or office practice that letters which are properly addressed and stamped are placed in a certain receptacle from which an authorized individual invariably collects and places all outgoing mail in a regular U.S. mail depository and that such procedure was actually followed on the date of the alleged mailing creates an inference that a letter properly addressed with sufficient postage attached and deposited in such receptacle was regularly transmitted and presents a question for the trier of fact to decide.

         8. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         Appeal from the Workers' Compensation Court: Thomas E. Stine, Judge. Reversed and remanded for further proceedings.

          Rolf Edward Shasteen, of Shasteen & Morris, P.C., L.L.O.. for appellant.

          L. Tyler Laflin and Joshua R. Woolf, of Engles, Ketcham, Olson & Keith, P.C., for appellee FirstComp Insurance Company.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.

         NATURE OF CASE

         This case concerns whether an insurance company complied with the notice of cancellation requirements under Neb. Rev. Stat. § 48-144.03 (Reissue 2010). The Nebraska Workers' Compensation Court dismissed FirstComp Insurance Company (FirstComp) as a defendant upon finding that FirstComp complied with § 48-144.03 and, therefore, did not carry workers' compensation insurance for appellee J.J. Hooligan's, LLC, formerly known as Pies & Pints, LLC, at the time of appellant Lori Greenwood's injury. We conclude the compensation court erred in finding that FirstComp provided sufficient evidence of its compliance with the notice [297 Neb. 437] of cancellation requirement in § 48-144.03 and in dismissing FirstComp as a party. Therefore, we reverse, and remand for further proceedings.

         FACTS

         On January 14, 2012, Greenwood was injured while acting in the scope and course of her employment with J.J. Hooligan's. One of the owners of J.J. Hooligan's provided Greenwood with J.J. Hooligan's insurance carrier's contact number. After calling the contact number provided, Greenwood received a return call and was informed that because of nonpayment, FirstComp was not the workers' compensation insurance carrier on the date of the accident.

         Greenwood subsequently filed a petition against J.J. Hooligan's and FirstComp, seeking workers' compensation benefits. FirstComp moved to dismiss, arguing that it was not a proper party, because it had notified J.J. Hooligan's prior to January 2012, in compliance with § 48-144.03, that it had terminated its insurance coverage for nonpayment of its premium and, therefore, did not provide workers' compensation insurance to J.J. Hooligan's on the date of the accident.

         At the hearing, the compensation court admitted three exhibits from FirstComp that were relevant to the motion to dismiss. Exhibit 1 contained an affidavit of Mandy Johnson, a FirstComp employee, which stated that on November 2, 2011, a notice of cancellation of workers' compensation insurance policy No. WC0124824-01 was sent by certified mail to J.J. Hooligan's for nonpayment; that FirstComp uses an electronic mailing system through the U.S. Postal Service (USPS) to send its certified mail; that the certified mail number generated by the USPS was 9171999991703112609757; that because the mailing was completed through an electronic mailing system, there was no physical receipt or ticket produced; and that the USPS keeps records of certified mailings for a period of 2 years and the system that FirstComp uses, through the USPS, keeps records for a period of 3 years. [297 Neb. 438] Attached to the affidavit were an internal spreadsheet record of FirstComp which showed that notice was sent on November 3, 2011, for policy No. WC0124824-01 and a copy of the notice of cancellation.

         Exhibit 2 contained the proof-of-coverage pages from the Nebraska Workers' Compensation Court showing that cancellation was received by the compensation court in November ...


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