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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.

Cite as 297 Neb. 331

Jimmy R. Barnes, Jr., appellant,

American Standard 

Company of Wisconsin, appel

___ N.W.2d ___

Filed July 28, 2017. No. S-16-854.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to any material 

facts or as to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Summary Judgment: Proof. The party moving for summary judgment 

has the burden to show that no genuine issue of material fact exists and 

must produce sufficient evidence to demonstrate that the moving party 

is entitled to judgment as a matter of law.

4. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

5. ____. Summary judgment proceedings do not resolve factual issues, but 

instead determine whether there is a material issue of fact in dispute.

6. ____. If a genuine issue of fact exists, summary judgment may not properly be entered.

7. Insurance: Contracts: Proof. The burden of establishing an effective 

cancellation before a loss is on the insurer.

8. Statutes: Intent: Service of Process. It is the intent of Neb. Rev. Stat. 

§ 44-516 (Reissue 2010) to require registered or certified mail for every 

cancellation notice within its purview. The requirement of registered or 

certified mail facilitates proof of receipt of notice.

9. Insurance: Notice. There is no requirement in Neb. Rev. Stat. § 44-516 

(Reissue 2010) that the insured actually receive notice.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/04/2017 09:07 AM CDT
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10. Statutes: Presumptions: Legislature: Intent. In construing a statute, 

it is presumed that the Legislature intended a sensible, rather than 

absurd, result.

11. Insurance: Service of Process: Notice: Legislature: Intent: Proof. 

By using registered or certified services as required in Neb. Rev. Stat. 

§ 44-516 (Reissue 2010), the Legislature relieved the insurer of proving 

that a notice of cancellation was received.

Appeal from the District Court for Douglas County: Dua

C. Dougherty, Judge. Reversed and remanded for further

proceedings.

Daniel L. Rock and Jordan E. Holst, of Ellick, Jones, Buelt, 

Blazek & Longo, L.L.P., for appellant.

Jane D. Hansen for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

and Funke, J

Miller-Lerman,

NATURE OF CASE

Jimmy R. Barnes, Jr., the appellant, was in a motorcyclemotor vehicle accident. American Standard Insurance Company 

of Wisconsin (American Standard) asserted that Barnes’ motorcycle insurance policy had been canceled prior to the accident 

and denied underinsured coverage to Barnes. Barnes filed a 

complaint with a jury demand in the district court for Douglas 

County in which he claimed wrongful denial of coverage. 

The parties filed cross-motions for partial summary judgment. 

After a hearing, the district court granted American Standard’s 

motion for partial summary judgment, denied Barnes’ motion 

for partial summary judgment, and dismissed Barnes’ complaint with prejudice. Barnes appeals. We reverse, and remand 

for further proceedings.

STATEMENT OF FACTS

On June 7, 2013, Barnes entered into three motor vehicle insurance policies with American Standard, including 
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insurance policy No. 2171-0924-03, which insured a motorcycle and included underinsured motorist coverage. According 

to American Standard’s evidence, it prepared three cancellation 

notices for Barnes’ three motor vehicle policies on September 

18, 2013, because either the bank account from which American 

Standard electronically withdrew Barnes’ monthly premium 

payments had insufficient funds for the payments or the bank 

had rejected the transaction at the time that the premiums 

were due. The notices were addressed to Barnes at his mailing 

address and stated that the three policies would be canceled 

effective October 1 unless the premiums were paid. American 

Standard contends that it mailed Barnes’ automobile insurance 

cancellation notices by certified mail. Barnes alleged that he 

did not receive the cancellation notices.

On October 10, 2013, Barnes was struck by an underinsured motorist while riding his motorcycle. Barnes sustained 

injuries as a result of the accident. He received $100,000 from 

the underinsured motorist’s insurance provider. Barnes alleged 

that his damages were in excess of this amount, so he made a 

claim for underinsured motorist coverage under his American 

Standard motorcycle policy, which he believed was still in 

force at the time of the accident. American Standard contended 

that the policy was not in force at the time of the accident and 

denied the claim.

On September 16, 2015, Barnes filed his complaint with a 

jury demand against American Standard. He alleged that the 

policy covering the motorcycle was in force at the time of 

the accident, and he sought damages and attorney fees. On 

October 7, American Family filed its answer generally denying 

the allegations in the complaint.

American Standard filed a motion for partial summary judgment, in which it stated that it was moving for summary 

judgement “on the issue of whether notice of cancellation was 

sent by certified mail.” Barnes also filed a motion for partial 

summary judgment, in which he stated that he was entitled to 

judgment as a matter of law regarding his claim for insurance 
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benefits. Barnes stated that he was not seeking summary judgment regarding the question of damages.

A hearing was held on April 25, 2016. At the hearing, Barnes 

offered and the district court received exhibits 1 through 11, 

which included: Barnes’ affidavit; blank U.S. Postal Service 

forms 3811 and 3800; a copy of American Standard’s mailing 

log on postal service form 3877 (Form 3877) dated September 

18, 2013; American Standard’s responses to Barnes’ request 

for production of documents; and the cancellation notices 

dated September 18, 2013. American Standard offered and the 

district court received exhibits 12 through 20, which included: 

cancellation notices; two affidavits from American Standard 

employees regarding mailing procedures; documents regarding 

American Standard’s policy cancellation procedure; a demonstrative envelope used to illustrate certified mail; a copy of 

American Standard’s mailing log Form 3877 dated September 

18, 2013; and a U.S. Postal Service certificate of mailing for a 

piece of first-class mail relating to Barnes’ homeowner’s policy 

dated September 18, 2013.

Barnes and American Standard each offered Form 3877, 

which indicated that three pieces of mail were sent to Barnes. 

Form 3877 has a space to indicate what type of service 

was applied to the mail, but the box for “Certified” was not 

checked. Form 3877 has a space where the sender is to include 

the addressee’s information, and it states, “Addressee (Name, 

Street, City, State, & ZIP Code).” (Emphasis in original.) 

American Standard supplied Barnes’ name, city, state, and ZIP 

Code on Form 3877, but it did not include his street or house 

number. Form 3877 contains the postmaster’s stamp, date, 

tracking numbers, fees, and postal worker’s signature.

On August 12, 2016, the district court filed its “Order on 

Cross-Motions for Partial Summary Judgment.” The district 

court cited Neb. Rev. Stat. § 44-516(1) (Reissue 2010), which 

provides that “[n]o notice of cancellation of a policy . . . shall 

be effective unless mailed by registered or certified mail to the 

named insured . . . .” The district court noted that § 44-516 
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does not require American Standard to establish that Barnes 

received the cancellation notice; however, it requires that 

American Standard prove it mailed the cancellation notice to 

Barnes by registered or certified mail.

In its ruling, the district court noted that in the context of 

federal tax cases, other courts have determined that Form 3877 

is an accepted method to prove that an item is sent by certified 

mail. The district court noted the defects in Form 3877, but 

nevertheless determined that the “majority of the evidence in 

this case establishes that [American Standard] complied with 

Neb. Rev. Stat. § 44-516 by sending the cancellation notice 

to [Barnes] via certified mail on September 18, 2013.” The 

district court therefore granted American Standard’s motion 

for partial summary judgment, denied Barnes’ motion for 

partial summary judgment, and dismissed Barnes’ complaint 

with prejudice.

Barnes appeals.

ASSIGNMENTS OF ERROR

Barnes claims, summarized and restated, that the district 

court erred when it found that American Standard sent a cancellation notice to Barnes by certified mail in compliance with 

§ 44-516 and granted American Standard’s motion for partial 

summary judgment, denied Barnes’ motion for partial summary 

judgment, and dismissed Barnes’ complaint with prejudice 

when the matter was before the court on cross-motions for 

partial summary judgment and “discovery was leading to an 

alternate theory of recovery.”

STANDARDS OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. Midland Properties v. Wells Fargo, 296 Neb. 
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407, 893 N.W.2d 460 (2017). In reviewing a summary judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment was granted 

and gives that party the benefit of all reasonable inferences 

deducible from the evidence. Id.

ANALYSIS

The centerpiece of our analysis is § 44-516(1), which both 

parties agree is controlling. Section 44-516(1) provides in relevant part as follows:

No notice of cancellation of a policy to which section 

44-515 applies shall be effective unless mailed by registered or certified mail to the named insured at least thirty 

days prior to the effective date of cancellation, except that 

if cancellation is for nonpayment of premium, at least ten 

days’ notice of cancellation accompanied by the reason 

therefor shall be given.

American Standard filed a motion for partial summary judgment in which it sought judgment in its favor “on the issue 

of whether notice of cancellation was sent by certified mail.” 

Barnes filed a motion for partial summary judgment seeking 

a judgment in his favor to the effect that American Standard 

was liable to him on the insurance policy. Following receipt 

of evidence on the cross-motions for summary judgment, the 

district court filed its order on August 12, 2016. As noted 

above, the district court granted American Standard’s motion 

for partial summary judgment, denied Barnes’ motion for partial summary judgment, and dismissed Barnes’ complaint with 

prejudice. Barnes claims that the district court’s decision was 

error, and we agree.

The parties offered and the district court received various items of evidence at the summary judgment hearing. The 

evidence included Barnes’ affidavit, in which he stated that 

he did not receive the cancellation notice by certified mail or 

otherwise and that at the time of the October 10, 2013, collision, he believed the policy was in full force and effect. The 
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evidence presented by American Standard included affidavits 

and documents regarding its mailing procedures; notices of 

cancellation addressed to Barnes; and Form 3877, also known 

as a Certificate of Mailing. Although not a witness to the 

actual mailing of the notice of cancellation, in her affidavit, 

a mail clerk for American Standard describes the procedure 

that “would” have been followed and offers her belief that the 

notice was sent via certified mail. Although she states that the 

fee on Form 3877 indicates certified service, she does not state 

it is consistent only with certified service. American Standard 

also offered a demonstrative exhibit consisting of an envelope 

with a certified mail label on it to illustrate the appearance of a 

certified mail envelope.

The parties and the court dedicate considerable attention to 

Form 3877 and its defects. In its decision, the district court 

acknowledges that American Standard failed to check the certified box and neglected to include Barnes’ street address 

on Form 3877. The district court stated this was “problematic.” The district court reasoned, however, that the defects 

could be overcome by American Standard’s presentation of 

other evidence showing American Standard’s ordinary mailing procedures and that other notices mailed to Barnes bore a 

street address.

Referring to evidence presented by American Standard, the 

district court stated that the corroborating American Standard 

employee affidavit evidence “suggests that procedures for 

sending certified mail were followed” and that the street 

address on the cancellation notices on policies not at issue 

in this case “creates a strong inference that the cancellation[] notices were all sent to the same address.” Based on 

the inferences, the district court found that the “majority of 

the evidence in this case establishes that [American Standard] 

complied with Neb. Rev. Stat. § 44-516 by sending the cancellation notice to [Barnes] via certified mail on September 18, 

2013.” As explained below, by giving inferences favorable 

to American Standard, we believe the district court failed to 
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adhere to summary judgment standards and, therefore, its decision was error.

[3-6] The party moving for summary judgment has the 

burden to show that no genuine issue of material fact exists 

and must produce sufficient evidence to demonstrate that 

the moving party is entitled to judgment as a matter of law. 

Brock v. Dunning, 288 Neb. 909, 854 N.W.2d 275 (2014). 

In the summary judgment context, a fact is material only if 

it would affect the outcome of the case. Id. Summary judgment proceedings do not resolve factual issues, but instead 

determine whether there is a material issue of fact in dispute. 

Id. If a genuine issue of fact exists, summary judgment may 

not properly be entered. Id. We apply these principles to the 

instant case.

As noted above, for notice of cancellation to be effective 

under § 44-516(1), the notice must be “mailed by registered 

or certified mail to the named insured.” The question posed 

by American Standard’s motion for partial summary judgment 

was whether the notice of cancellation was mailed by certified 

mail. Given the foregoing, whether American Standard fulfilled its statutory duty to mail the notice by certified mail was 

the central material fact raised by American Standard’s motion 

for partial summary judgment.

[7] In a case involving an insurer’s compliance with a 

statutory requirement of notification prior to cancellation, 

we stated that “the burden of establishing an effective cancellation before a loss is on the insurer.” Daniels v. Allstate 

Indemnity Co., 261 Neb. 671, 679, 624 N.W.2d 636, 643 

(2001). In Daniels, we reversed the district court’s order 

granting summary judgment in favor of the insurer. As in 

Daniels, once the statutory notice requirement was implicated in the instant case, it was American Standard’s burden 

to demonstrate compliance therewith in order to show that it 

was entitled to judgment as a matter of law. There is no actual 

direct evidence that the notice of cancellation was mailed 

certified to Barnes, and in the procedural context of a motion 
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for summary judgment, we believe the weight to be accorded 

American Standard’s other evidence must await resolution at 

trial. See Houska v. City of Wahoo, 235 Neb. 635, 456 N.W.2d 

750 (1990).

[8] Our analysis focuses on the controlling statute, § 44-516. 

We have previously considered § 44-516, and we stated as 

follows:

In 1972, in response to a growing national concern 

over arbitrary policy cancellations and nonrenewals, the 

Nebraska Legislature adopted a statutory scheme dealing 

with automobile insurance policy cancellations patterned 

after some model legislation proposed by certain insurance trade organizations. In 1973, it added the requirement that the cancellation notice must be mailed by registered or certified mail. . . .

It is clear to us that the intent of the Legislature in 

the passage of these sections was to clear up confusion 

in the area of automobile insurance policy cancellation, 

not to further it. . . . We are satisfied it is the intent 

of section 44-516, R. R. S. 1943, to require registered 

or certified mail for every cancellation notice [within 

its purview.]

The requirement of registered or certified mail facilitates proof of receipt of notice.

Sanders v. Mittlieder, 195 Neb. 232, 236, 237 N.W.2d 838, 

840 (1976).

[9,10] As we have stated above, § 44-516(1) provides 

that “[n]o notice of cancellation of a policy to which section 

44-515 applies shall be effective unless mailed . . . certified 

mail to the named insured . . . .” There is no requirement in 

the statute that the insured actually receive notice. In construing a statute, it is presumed that the Legislature intended 

a sensible, rather than absurd, result. See In re Adoption of 

Chase T., 295 Neb. 390, 888 N.W.2d 507 (2016). The provision in this statute sets forth precisely what requirement 

must be satisfied in order to successfully accomplish mailing 
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and, hence, cancellation. Thus, where the certified box on 

Form 3877 is checked, proof of certified mailing is greatly 

enhanced. And we have only to apply the requirement to the 

facts at hand. Applying the plain, direct, and unambiguous 

language of § 44-516(1), if the notice of cancellation was 

mailed to Barnes by certified mail, then the cancellation 

would become effective in the number of days thereafter provided elsewhere in the statutes.

We considered a circumstance similar to the instant case in 

Houska v. City of Wahoo, supra, where there was an absence of 

direct proof of actually “sending [the particular letter] by ordinary mail” as prescribed by the relevant statute, Neb. Rev. Stat. 

§ 76-710 (Reissue 2009). On appeal, we reversed the summary 

judgment entered in favor of the defendant.

The plaintiff in Houska contended that the absence of 

direct evidence of compliance with the statute completely 

defeated the defendant’s assertion that it had complied with 

the statutory mailing requirement. We rejected the plaintiff’s 

contention and instead stated that proof of compliance could 

be proved by alternative evidence, such as direct proof pertaining to the particular letter in question or related to the 

deposit of the particular letter with the U.S. Postal Service, 

or sufficient competent evidence demonstrating adherence 

to a customary mailing procedure where letters which are 

properly addressed and stamped are handled in a manner 

whereby the particular letter would have been transmitted 

in accordance with the statute on the particular date of the 

alleged mailing. We stated in Houska that evidence showing 

office custom was followed in connection with the particular 

letter creates an inference that the particular letter comported 

with the statute, but that nevertheless, compliance with the 

statute presented a question for the trier of fact to decide. In 

the instant case, Barnes had demanded a jury trial, so a jury, 

not the court, would be the trier of fact. In Houska, the record 

was insufficient to determine as a matter of law that the 

method of sending the particular letter in question comported 
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with § 76-710, thus creating a genuine issue of material fact 

preventing summary judgment. As in Houska, we believe that 

in the absence of direct proof of compliance, it is proper for 

the finder of fact in the instant case to consider alternative 

evidence when it ultimately resolves the issue of compliance 

with § 44-516.

As we read its order, contrary to the principles controlling 

resolution of summary judgment motions recited above, the 

district court evaluated the evidence, including alternative 

evidence, and resolved factual issues by taking the inferences in favor of the moving party rather than the nonmoving party. As an example, the district court found, inter alia, 

that the information found on the two Forms 3877 “show 

that three articles were sent to [Barnes] with tracking numbers indicating that the items were sent via certified mail.” 

We believe there is no basis in this record to conclude that 

tracking numbers alone establish certified mail service, and 

in any event, it is inappropriate to infer such fact in American 

Standard’s favor.

As the district court’s order acknowledges, American 

Standard failed to check the certified box on Form 3877. In 

finding that this significant defect was overcome by American 

Standard’s evidence, the district court relied heavily on tax 

cases where defects in Form 3877 are common. But we believe 

the district court’s reliance on the tax cases was misplaced.

The primary tax case on which the district court relied in 

its order granting summary judgment in favor of American 

Standard is Coleman v. C.I.R., 94 T.C. 82 (1990). That tax case 

is in agreement with other authorities that state that a properly 

and fully completed Form 3877 is preferable proof and entitles 

the mailer to a presumption of regularity. See United States v. 

Ahrens, 530 F.2d 781 (8th Cir. 1976). But a failure to comply 

with Form 3877’s requirements do not merit the presumption. 

Coleman v. C.I.R., supra.

The issue in Coleman was whether the deficiency sought 

by the tax commissioner was time barred as asserted by the 
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taxpayers as an affirmative defense due to the allegedly tardy 

mailing of the tax commissioner’s notice of deficiency. In the 

instant case, the district court cited Coleman and found that 

the defective Form 3877, combined with American Standard’s 

corroborating habit evidence, established that the mailing to 

Barnes complied with the statutory requirement of certified 

mail. However, the lesson and application of Coleman is not as 

broad as characterized by the district court.

In Coleman v. C.I.R., supra, the tax court had previously 

denied summary judgment on the issue of timely mailing and 

ordered a trial on this question. Coleman was not a summary 

judgment case; instead, it was decided after trial where the 

disputed facts were ripe for resolution. See Wiley v. U.S., 

20 F.3d 222 (6th Cir. 1994) (reversing summary judgment 

in favor of government). Furthermore, as the opinion in 

Coleman explains, the burden of persuasion regarding the 

timeliness of mailing was always on the taxpayers asserting 

the affirmative defense that the action was barred by the statute of limitations. Therefore, although the tax commissioner’s 

evidence of a defective Form 3877 and habit evidence carried 

its burden of production, ultimately, it was the taxpayers’ 

failure to present persuasive evidence of an untimely notice 

that entitled the tax commissioner in Coleman to prevail at 

trial. See, similarly, Cropper v. C.I.R., 826 F.3d 1280 (10th 

Cir. 2016) (affirming judgment in favor of government after 

stipulated trial).

In contrast to Coleman v. C.I.R., supra, the posture of the 

instant case must be determined by summary judgment standards, where the inferences are taken in favor of Barnes as 

the nonmoving party. Whereas the taxpayers in Coleman had 

the burden at trial to establish the nonoccurrence of statutory 

timely mailing, Barnes was not required to prove the nonoccurrence of statutorily required certified mail; instead, upon 

its motion for summary judgment, American Standard bore 

the burden to show that its notice to Barnes had met its 

statutory duty of a certified mailing and that it was entitled 
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to judgment as a matter of law. Following our review of the 

record, we believe that the evidence offered by American 

Standard did not entitle it to judgment.

We find the cases involving disputed insurance claims more 

helpful than the tax cases. These cases explore the significance of the terms used by the U.S. Postal Service. In Horton 

v. Washington Cty. Tax Claim Bureau, 623 Pa. 113, 81 A.3d 

883 (2013), the Supreme Court of Pennsylvania explained 

that the types of mailing and different services added to the 

mailing, such as certified mail and tracking, are contained and 

defined in the Code of Federal Regulations as incorporated 

by the U.S. Postal Service’s Domestic Mail Manual. See, 

also, 39 C.F.R. § 111.1 (2016). Form 3877 is characterized as 

a “‘Certificate of Mailing.’” See Horton v. Washington Cty. 

Tax Claim Bureau, 623 Pa. at 126, 81 A.3d at 891. A certificate of mailing offers the sender “‘evidence that you sent the 

item when you say you did. This official record shows the 

date your mail was accepted. Certificates of mailing furnish 

evidence of mailing only.’” Id. Form 3877, standing alone 

and without the certified box checked off, “‘furnish[es] evidence of mailing only,’” see id.; it does not directly prove the 

mail had other services attached. In the district court’s order 

on summary judgment, it referred to the Form 3877 at issue 

on which the certified box is not checked and Barnes’ street 

address is missing, but did bear a tracking number. Despite the 

limited evidentiary weight of the Form 3877, the district court 

stated that “tracking numbers indicat[e] that the items were 

sent via certified mail.” This determination tending to equate 

tracking numbers with certified mail is not supported by the 

record or the U.S. Postal Manual, and, as we noted above, 

further exhibits the district court’s erroneous approach giving 

inferences to the moving party instead of the nonmoving party 

on summary judgment.

We find informative the reasoning in the opinion of the 

Supreme Court of Illinois in Ragan v. Columbia Mut. Ins. Co., 

183 Ill. 2d 342, 701 N.E.2d 493, 233 Ill. Dec. 643 (1998), 
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interpreting an insurance cancellation notification statute. The 

Illinois Insurance Code requires that an insurance “company 

shall maintain proof of mailing of such notice [of cancellation] 

on a recognized U.S. Post Office form or a form acceptable to 

the U.S. Post Office or other commercial mail delivery service.” See 215 Ill. Comp. Stat. Ann. 5/143.14(a) (LexisNexis 

Cum. Supp. 2009). The Ragan decision, which granted summary judgment in favor of the insured, was quoted at length 

in Hunt v. State Farm Mutual Automobile Insurance Co., 2013 

IL App (1st) 120561, ¶ 36, 994 N.E.2d 561, 570-71, 373 Ill. 

Dec. 792, 801-02 (2013), as follows:

[T]he supreme court stated “[i]t is apparent from the 

wording of the provision in the context of the Insurance 

Code that the purpose of the statute is to protect the 

insured from cancellation of his insurance without his 

knowledge. To accomplish this purpose, the legislature could have required insurance companies to prove 

receipt by the insured. But, by enacting this section, the 

legislature clearly sought to strike a balance between the 

interest of the insured in being informed of a cancellation of his insurance policy and the burden that would 

be put on an insurance company to prove receipt by the 

insured.” [Ragan v. Columbia Mut. Ins. Co., 183 Ill. 

2d] at 351[, 701 N.E.2d at 497, 233 Ill. Dec. at 647]. In 

striking a balance between insured persons and insurers, 

the legislature gave insurance companies a “very low 

threshold of proof” relating to the mailing of cancellation notices, requiring only that the insurer show proof 

of mailing on a recognized United States Post Office 

form or form acceptable to the United States Post Office 

or other commercial mail delivery service. Id. at 351-

52[, 701 N.E.2d at 497, 233 Ill. Dec. at 647]. The court 

then held that a finding that “the statute implicitly allows 

an insurance company to use other evidence to show it 

maintained the proof of mailing when the statute explicitly requires it to maintain such a form would disturb the 
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balance that the legislature sought to achieve in enacting 

[section 143.14].” Id. at 352[, 701 N.E.2d at 497, 233 Ill. 

Dec. at 647].

For completeness, we note that Hunt approved the use of the 

equivalent of Form 3877 by the insurer based on the Illinois 

statute and a provision in the Domestic Mail Manual. Hunt v. 

State Farm Mutual Automobile Insurance Co., supra.

[11] We believe the reasoning in Ragan v. Columbia 

Mut. Ins. Co., supra, is generally relevant to our case. In 

§ 44-516(1), the Legislature specifically selected that the 

notice of cancellation be mailed by “registered or certified 

mail.” We understand that these added services are terms of 

art, and we believe these services were deliberately chosen 

by the Legislature. In this regard, we note, for comparison, 

that in Neb. Rev. Stat. § 44-522(4) (Reissue 2010), concerning property, marine, or liability insurance, the Legislature 

chose to permit notice by “first-class mail.” See § 44-522(4) 

(providing “cancellation or nonrenewal shall be sent by registered, certified, or first-class mail to the insured’s last mailing address known to the insurer”). The Legislature chose to 

require notice by registered or certified mail in § 44-516, but 

it did not choose to require proof that notice of cancellation 

was received. But as the court in Hunt v. State Farm Mutual 

Automobile Insurance Co. expressed, under certain statutes, 

insurance companies have a “‘very low threshold of proof.’” 

2013 IL App (1st) 120561 at ¶ 36, 994 N.E.2d at 570, 373 Ill. 

Dec. at 801. We agree with this observation, and given the 

terms chosen by the Legislature in the applicable Nebraska 

statute, § 44-516, we are not inclined to reduce the requirements further. For completeness, we note that we are aware 

that the mailing-related notice requirements in § 44-516(1) 

and other statutes were expanded upon, pursuant to 2017 Neb. 

Laws, L.B. 406, but they were not effective at the time of the 

underlying events in this case or at the time the district court’s 

opinion was filed.
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In sum, taking the inferences in favor of Barnes as the nonmoving party, the evidence submitted by American Standard 

did not establish directly that it mailed the notice of cancellation by certified mail and it was not entitled to judgment as 

a matter of law. The district court’s order of August 12, 2016, 

is reversed.

CONCLUSION

The district court’s decision, which weighed the evidence 

and found that the “majority of the evidence . . . establishes that [American Standard] complied with Neb. Rev. Stat. 

§ 44-516 by sending the cancellation notice to [Barnes] via 

certified mail,” was not warranted in the procedural context of 

a motion for summary judgment. Accordingly, we reverse the 

order of the district court which granted American Standard’s 

motion for partial summary judgment, denied Barnes’ motion 

for partial summary judgment, and dismissed Barnes’ complaint with prejudice. The cause is remanded for further proceedings consistent with this opinion.

 Reversed and remanded

further proceeding

Stacy, J., not participatin