ADJ11969555 · December 22, 2023

The evidence presented lacked substantiality to establish by a preponderance of the evidence that the notice of cancellation was mailed as required by law and policy.

From the decision · page 9This case turns on the question of whether or not it has been established by a preponderance of the evidence (California Labor Code section 3202.5) that the notice of cancellation in question (Norguard Exhibit 3) was in fact mailed. There is evidence that it was, but in light of the questions apparent from both the document offered as the documentary evidence in support of the requisite mailing, as well as the questions raised by the depth, or lack thereof, of the understanding of the

The only witness presented by NorGUARD was an underwriting specialist with no direct involvement or personal knowledge of the mailing process.

Favours Applicant prevailed

His lack of firsthand knowledge and reliance on hearsay testimony weakened the evidence of mailing.

NorGUARD Exhibit 27 lacked express markings referencing NorGUARD and appeared to be a mass mailing document without clear indication of who mailed the documents.

Favours Applicant prevailed

This undermined the credibility of the documentary evidence supporting mailing of the notice of cancellation.

From the decision · page 10First of all, the documentary evidence is less than clear. A simple proof of service that the Notice of Cancellation had been sent with a signature by the person who sent it, would have provided the simple, clear and straightforward documentary evidence that would provide clarity on the issue of mailing. Instead, we have what appears to be a document showing a mass mailing without any indication as to who mailed these documents, and doesn't even reference NorGUARD.

WCAB Rule 10625

Proof of service requires a dated and verified declaration identifying the documents served and the parties served, and the method of service.

The petitioner failed to establish by a preponderance of evidence that the notice of cancellation was mailed as required by this rule.

From the decision · page 1In addition to the reasons stated by the Arbitrator in the Report, we note that WCAB Rule 10625 defines "proof of service" as "a dated and verified declaration identifying the document(s) served and the parties who were served, and stating that service has been made and the method by which it has been made...". (Cal. Code Regs., tit. 8, § 10625.) We agree with the Arbitrator that petitioner failed to establish by a preponderance of evidence that a notice of cancellation was in fact mailed.

California Labor Code section 3202.5

Preponderance of the evidence standard applies to establish mailing of the notice of cancellation.

The arbitrator applied this standard to determine that the evidence was insufficient to prove mailing.

From the decision · page 9This case turns on the question of whether or not it has been established by a preponderance of the evidence (California Labor Code section 3202.5) that the notice of cancellation in question (Norguard Exhibit 3) was in fact mailed. There is evidence that it was, but in light of the questions apparent from both the document offered as the documentary evidence in support of the requisite mailing, as well as the questions raised by the depth, or lack thereof, of the understanding of the

California Insurance Code section 676.8

Proof of mailing the notice of cancellation is determinative of whether notice has been legally established under the policy and California Insurance Code section 676.8.

The policy and statutory law require proof of mailing the notice of cancellation to establish coverage cancellation.

From the decision · page 8The sole question of whether NorGUARD has coverage over the injury herein rests on a determination of whether or not the Notice of Cancellation (NorGUARD Exhibit 3) was in fact mailed. The language in the above- mentioned policy, the endorsement and the California Insurance Code are consistent in establishing that it is the proof of mailing the notice in question that is determinative of whether notice has been legally established. The legal basis for issuing the notice, and the fact that the notice was not received, do not appear to be in dispute. There also does not appear to be any dispute that the address for Expressions is 1190 Burnett Avenue, Suite C, Concord, CA 94520.

The documentary evidence (NorGUARD Exhibit 27) was unclear and lacked express markings referencing NorGUARD, raising doubts about its credibility.

From the decision · page 10First of all, the documentary evidence is less than clear. A simple proof of service that the Notice of Cancellation had been sent with a signature by the person who sent it, would have provided the simple, clear and straightforward documentary evidence that would provide clarity on the issue of mailing. Instead, we have what appears to be a document showing a mass mailing without any indication as to who mailed these documents, and doesn't even reference NorGUARD.

The only witness presented by NorGUARD, an underwriting specialist, lacked first-hand knowledge of the mailing process and was unable to provide substantial evidence of mailing.