The opinion
Robert L. Brown, Justice, concurring. The issue before us is whether proof of mailing of the notice of cancellation was so conclusive that the issue could be decided by summary judgment as a matter of law.
The applicable statutes read that notice of cancellation is effective by mailing or delivery to the insured and that proof of mailing is sufficient proof of notice. Ark. Code Ann. §§ 23-89-304 (a)(1), 23-89-305 (1987). On August 29, 1991, 116 notices of cancellation were delivered by Atlanta Casualty in one batch to the postmaster in Georgia. Those notices included one to Clovis Swinney. That same date, 105 notices were delivered to the same postmaster in a second batch which included a notice to Swinney’s lienholder, Mercantile Bank of Jonesboro. The postmaster then signed a form that he “personally mailed” the notices to the insured and the lienholder and the same date signed a certificate that the 221 notices were sent by bulk mail.
There was no certification given by the postmaster to Atlanta Casualty that an individual letter had been sent to Swinney. There was no return receipt from Swinney following delivery of certified mail to him. Swinney signed an affidavit that he did not receive the notice. The lienholder, Mercantile Bank of Jonesboro, also denied receiving notice.
Under our statutes, what happens after mailing, including receipt of notice of cancellation, is irrelevant. Thus, the mere fact that the postmaster certifies that he mailed the notice, albeit by bulk mail, concludes the matter. This raises in my mind, however, a basic question of due process: Should an insurance company be permitted to terminate coverage without some assurance that the insured has been notified of that termination? Swinney does not make a due process argument in this appeal, and for that reason we do not address it. That issue is reserved for another day.
Corbin, J., joins.