Barnes v. American Standard Ins. Co. of Wis. , 297 Neb. 331 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
Cite as 297 Neb. 331
Jimmy R. Barnes, Jr., appellant, v.
A merican Standard Insurance
Company of Wisconsin, appellee.
___ 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 mate-
rial 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 prop-
erly 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.
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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
Cite as 297 Neb. 331
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: Duane
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, K elch,
and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jimmy R. Barnes, Jr., the appellant, was in a motorcycle-
motor vehicle accident. American Standard Insurance Company
of Wisconsin (American Standard) asserted that Barnes’ motor-
cycle 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’ com-
plaint with prejudice. Barnes appeals. We reverse, and remand
for further proceedings.
STATEMENT OF FACTS
On June 7, 2013, Barnes entered into three motor vehi-
cle insurance policies with American Standard, including
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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
Cite as 297 Neb. 331
insurance policy No. 2171-0924-03, which insured a motor-
cycle 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 underin-
sured 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 judg-
ment, 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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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
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benefits. Barnes stated that he was not seeking summary judg-
ment 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 demon-
strative 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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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
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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 can-
cellation 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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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
Cite as 297 Neb. 331
407, 893 N.W.2d 460 (2017). In reviewing a summary judg-
ment, 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 rel-
evant part as follows:
No notice of cancellation of a policy to which section
44-515 applies shall be effective unless mailed by regis-
tered 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 judg-
ment 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 par-
tial 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 vari-
ous 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, colli-
sion, he believed the policy was in full force and effect. The
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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
Cite as 297 Neb. 331
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 cer-
tified box and neglected to include Barnes’ street address
on Form 3877. The district court stated this was “problem-
atic.” The district court reasoned, however, that the defects
could be overcome by American Standard’s presentation of
other evidence showing American Standard’s ordinary mail-
ing 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 cancella-
tion[] 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 cancel-
lation 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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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
Cite as 297 Neb. 331
adhere to summary judgment standards and, therefore, its deci-
sion 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 judg-
ment 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 ful-
filled 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 can-
cellation 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 impli-
cated 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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BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
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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 insur-
ance trade organizations. In 1973, it added the require-
ment that the cancellation notice must be mailed by regis-
tered 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 facili-
tates 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 con-
struing 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 pro-
vision 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 pro-
vided 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 ordi-
nary 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 per-
taining 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 infer-
ences in favor of the moving party rather than the nonmov-
ing 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 num-
bers 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 stat-
ute 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 stan-
dards, 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 nonoc-
currence 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 signifi-
cance 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 certifi-
cate 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] evi-
dence 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 serv­
ice.” See 215 Ill. Comp. Stat. Ann. 5/143.14(a) (LexisNexis
Cum. Supp. 2009). The Ragan decision, which granted sum-
mary 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 legisla-
ture 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 cancella-
tion 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 cancella-
tion 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 explic-
itly 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), concern-
ing 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 reg-
istered, certified, or first-class mail to the insured’s last mail-
ing 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 require-
ments 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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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
BARNES v. AMERICAN STANDARD INS. CO. OF WIS.
Cite as 297 Neb. 331
In sum, taking the inferences in favor of Barnes as the non-
moving party, the evidence submitted by American Standard
did not establish directly that it mailed the notice of cancel-
lation 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 . . . estab-
lishes 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’ com-
plaint with prejudice. The cause is remanded for further pro-
ceedings consistent with this opinion.
R eversed and remanded for
further proceedings.
Stacy, J., not participating.