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Nebraska Supreme Court Advance S

297 Nebraska Report

GREENWOOD v. J.J. HOOLIGAN’S

Cite as 297 Neb. 435

Lori Greenwood, appellant, v. J.J. Hooligan’

formerly known as Pies & Pints, L

FirstComp Insurance Company, ap

___ N.W.2d ___

Filed August 4, 2017. No. S-16-932.

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.

Nebraska Supreme Court Online Library

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

09/15/2017 01:10 AM CDT
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GREENWOOD v. J.J. HOOLIGAN’S

Cite as 297 Neb. 435

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 proceeding

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, Cas

Kelch, and Funke

Funke, 

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 
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GREENWOOD v. J.J. HOOLIGAN’S

Cite as 297 Neb. 435

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. 
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GREENWOOD v. J.J. HOOLIGAN’S

Cite as 297 Neb. 435

Attached to the affidavit were an internal spreadsheet record 

of FirstComp which showed that notice was sent on November 

3, 2011, for policy No. WC0l24824-01 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 

2011 and that the policy was canceled November 19, 2011.

Exhibit 3 included an affidavit from another FirstComp 

employee and a copy of J.J. Hooligan’s installment payment 

activity. The employee’s affidavit stated that he had personal 

knowledge of FirstComp procedures for canceling coverage 

and J.J. Hooligan’s account information and that a cancellation notice for policy No. WC0124824-01 was sent to J.J. 

Hooligan’s on November 2, 2011, for nonpayment of premium 

since July 14, 2011. It also stated that no payment of the premium was received after notice of cancellation was sent, so 

the cancellation became effective November 19.

The compensation court found that there was sufficient 

evidence to establish that FirstComp timely sent a notice 

of cancellation to J.J. Hooligan’s by certified mail. It cited 

Johnson’s affidavit stating that the notice of cancellation had 

been sent, the fact that a certified mail tracking number had 

been created for the notice of cancellation, and the fact that 

FirstComp provided notice of cancellation to the compensation court. Accordingly, the compensation court ruled that J.J. 

Hooligan’s insurance coverage through FirstComp was canceled on November 19, 2011. As a result, the compensation 

court dismissed FirstComp as a defendant, because it was not 

a proper party. Greenwood appealed.

ASSIGNMENTS OF ERROR

Greenwood asserts, restated, that the compensation court 

erroneously found that (1) FirstComp proved that it had complied with § 48-144.03’s notification requirements and (2) 

FirstComp was not liable to Greenwood, because it was not 
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GREENWOOD v. J.J. HOOLIGAN’S

Cite as 297 Neb. 435

J.J. Hooligan’s workers’ compensation insurance carrier on 

January 14, 2012.

STANDARD OF REVIEW

[1] 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.1

[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.2

ANALYSIS

FirstComp contends that it was not J.J. Hooligan’s workers’ 

compensation insurance carrier at the time of Greenwood’s 

accident, because it had canceled the policy for nonpayment 

of premium, under the requirements of § 48-144.03. It argues 

that its evidence of a certified mail tracking number, the testimony of two employees, and the fact that it provided notice 

of cancellation to the compensation court proves that it provided sufficient evidence for the compensation court to find 

in its favor.

Greenwood contends that FirstComp neither entered a 

return receipt into evidence nor provided evidence of an office 

practice for sending mail. She asserts that the existence of a 

tracking number does not itself prove that the notice of cancellation was actually mailed. Accordingly, she contends that 

1 Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676 

(2016).

2 Id.
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GREENWOOD v. J.J. HOOLIGAN’S

Cite as 297 Neb. 435

there is a genuine issue of fact regarding whether the notice of 

cancellation was sent to J.J. Hooligan’s.

Section 48-144.03 prescribes the requirements for a notice 

of cancellation of workers’ compensation insurance policies. 

It states that “coverage under a workers’ compensation insurance policy shall continue in full force and effect until notice 

is given in accordance with this section.”3 Regarding the 

cancellation of a policy within the policy period, it states that 

“[n]o cancellation . . . shall be effective unless notice of the 

cancellation is given by the workers’ compensation insurer 

to the Nebraska Worker’s Compensation Court and to the 

employer.”4 Finally, the statute states:

The notices required by this section shall be provided 

in writing and shall be deemed given upon the mailing 

of such notices by certified mail, except that notices 

from insurers to the compensation court may be provided 

by electronic means [and] shall be deemed given upon 

receipt and acceptance by the compensation court.5

[3,4] Unlike a notice of cancellation sent to the compensation court by electronic means, there is no requirement in 

§ 48-144.03 that a notice of cancellation sent by certified mail 

actually be received by the employer. Thus, there is no requirement that a return receipt be executed by the employer. Instead, 

to show compliance with § 48-144.03, the insurer need only 

prove that it sent the notice of cancellation by certified mail to 

the employer.

[5] 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

3 § 48-144.03(1).

4 § 48-144.03(2).

5 § 48-144.03(10).

6 Barnes v. American Standard Ins. Co. of Wis., ante p. 331, ___ N.W.2d 

___ (2017).
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GREENWOOD v. J.J. HOOLIGAN’S

Cite as 297 Neb. 435

[6,7] 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.”7 However, we have 

also stated:

“[A]bsent 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

In Houska v. City of Wahoo,

9

 we considered the statutory 

requirement that a county judge transmit an appraisal report to 

a condemnee—by personal delivery or the sending by ordinary 

mail—within 10 days of receiving it. A defendant introduced 

an affidavit of a judge, stating that the judge had sent the 

report in a prepaid envelope addressed to the plaintiffs and 

placed it in either a USPS depository or the Saunders County 

Court outgoing mail box.10 We held that this evidence was 

insufficient as a matter of law to prove the report was properly mailed.11

In Baker v. St. Paul Fire & Marine Ins. Co.,

12 we considered whether a plaintiff who claimed to have mailed her 

7 Houska v. City of Wahoo, 235 Neb. 635, 641, 456 N.W.2d 750, 754 (1990).

8 Baker v. St. Paul Fire & Marine Ins. Co., 240 Neb. 14, 18, 480 N.W.2d 

192, 197 (1992), citing Houska, supra note 7.

9 Houska, supra note 7.

10 Id.

11 Id.

12 Baker, supra note 8.
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GREENWOOD v. J.J. HOOLIGAN’S

Cite as 297 Neb. 435

final premium installment was entitled to a receipt-of-mail 

presumption, which required a showing that the premium was 

properly mailed. The plaintiff testified that she deposited the 

stamped and preaddressed envelope in the mail chute at her 

office building.13 Although she testified that the mail chute led 

to the building’s mailroom, she provided

no evidence that the mailroom was operated under the 

auspices of the U.S. Postal Service or that it was a U.S. 

Postal Service depository. Neither was there any evidence 

. . . that an authorized individual invariably collected and 

placed all outgoing mail collected from the mailroom in 

a regular U.S. mail depository or that such a procedure 

was actually followed on [that day].14

Accordingly, we held that the plaintiff failed to prove as 

a matter of law that she had properly mailed her premium 

payment.15

The affidavit of Johnson states that the notice of cancellation was sent via certified mailed and provides a tracking 

number for the notice. However, Johnson did not testify to 

having delivered the notice of cancellation to a USPS official 

or depository. Additionally, we recently stated that a tracking 

number alone does not establish certified mail service.16

Further, we agree with Greenwood that FirstComp has not 

provided sufficient proof of a course of office practice to send 

cancellation notices. FirstComp asserts that the fact that it uses 

an electronic mailing system through USPS is proof of its 

course of office practice. However, FirstComp failed to make 

any description of what its electronic mailing system entails. 

From the record, we cannot discern how the electronic system 

sends a notice of cancellation by certified mail.

13 Id.

14 Id. at 18, 480 N.W.2d 197.

15 Id.

16 See Barnes, supra note 6.
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Cite as 297 Neb. 435

It is not our intent to discourage the use of electronic mailing systems, but a party is still required to adduce sufficient 

evidence to detail what its electronic mailing system involves. 

Testimony as to how an electronic mailing system produces 

such notices and sends them by certified mail would provide 

proof that a notice was sent in compliance with § 48-144.03.

Accordingly, we hold that there is not sufficient competent 

evidence in the record to show that FirstComp complied with 

its statutory duty to send J.J. Hooligan’s a notice of cancellation by certified mail before terminating its policy. Therefore, 

the court erred in granting FirstComp’s motion to dismiss.

[8] Because we have determined the compensation court 

erred in sustaining FirstComp’s motion to dismiss, we need 

not address Greenwood’s argument that the court erred in not 

considering an adverse inference based on spoliation regarding 

the notice. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy before it.17

CONCLUSION

FirstComp failed to present sufficient competent evidence 

as to whether it complied with the employer notice of cancellation requirement in § 48-144.03 to warrant an order of dismissal. Accordingly, the compensation court erred in sustaining 

the motion to dismiss in favor of FirstComp. We, therefore, 

reverse the compensation court’s order and remand the cause 

for further proceedings.

 Reversed and remanded

further proceedin

17 Estermann v. Bose, 296 Neb. 228, 892 N.W.2d 857 (2017).