may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
American Family Insurance Company,
Filed July 14, 1998
Nobles County District Court
File No. C2-95-879
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.
LaMar Piper, 615 Second Avenue South, P.O. Box 109, St. James, MN 56081 (for appellant)
William J. Wetering, Hedeen, Hughes & Wetering, 1206 Oxford Street, P.O. Box 9, Worthington, MN 56187-0009 (for respondent)
Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Forsberg, Judge.
On appeal from a judgment following a special verdict, appellant argues the jury erred by finding that respondent insurer had mailed a payment renewal notice to appellant. Because the record contains no evidence that the payment notice was mailed, we reverse.
Respondent sold appellant an automobile insurance policy covering a six-month period. On February 10, 1995, respondent sent appellant a policy review letter, stating that the policy would renew soon; that the renewal term would be from March 15, 1995, to September 15, 1995; that the letter was "NOT A BILL"; and that a separate payment notice would be sent.
The parties dispute whether respondent mailed a separate premium renewal notice to appellant. It is undisputed, however, that appellant failed to make any premium renewal payment.
On April 8, 1995, appellant was involved in a serious accident. When appellant notified respondent about the accident, respondent informed appellant that his policy had lapsed because he had failed to pay the renewal premium.
Appellant sued respondent, seeking coverage under the policy. At trial, a witness testified that respondent's billings and notices were generated from a computer, that the computer's history displays were kept in respondent's normal course of business, and that respondent relied on the computer system to review policy histories, track payments on policies, and enter information about policy-holders.
Computer screen shots of appellant's policy history, along with testimony explaining the screen shots, indicated that a premium renewal notice was generated on February 21, 1995, and that a final notice was generated on March 21, 1995. Another screen shot of appellant's history display indicated that his policy lapsed on April 6, 1995. Respondent's witness testified that, if appellant had paid a premium prior to April, his policy would not have lapsed.
Respondent's witness testified that she assumed it was necessary for a human to transfer the documents from the computer, out of the building, and into the U.S. mail; however, she did not testify about respondent's mailing procedures or whether they were followed with respect to appellant's premium renewal notice.
By special verdict, a jury found that respondent had mailed a separate payment notice to appellant between February 10, 1995, and April 8, 1995. Pursuant to the special verdict, the district court issued an order for judgment dismissing appellant's action.
On appeal from a judgment following a special verdict, we will affirm unless the findings are "perverse and palpably contrary to the evidence" or the evidence "is so clear as to leave no room for differences among reasonable people." Hanks v. Hubbard Broadcasting, Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). "If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed." Id.
In the absence of proof to the contrary, mail properly addressed and stamped is presumed received by the addressee. Nafstad v. Merchant, 303 Minn. 569, 570, 228 N.W.2d 548, 550 (1975). But if the addressee denies receipt of mail, the burden is shifted to the sender to prove timely mailing by a preponderance of the evidence. Id. at 571, 228 N.W.2d at 550. Such proof requires
evidence of habit or custom with respect to mailing from the sender's office, coupled with some evidence showing compliance with the custom in the particular instance.
Although respondent's witness testified at length about appellant's policy history, respondent produced no evidence of its habit or custom with respect to the placement of computer-generated notices in the U.S. mail. The record also lacks any evidence of compliance with such habit or custom in this particular instance.
 Respondent failed to file a brief; therefore, this court ordered the matter to proceed pursuant to Minn. R. Civ. App. P. 142.03 (providing that if respondent fails to file a brief, the case is determined on its merits).
 Although respondent apparently had no statutory or contractual duty to send a payment notice, the district court, in a prior order, concluded that respondent was estopped from denying such duty, in light of its express statement in the policy review letter that a payment notice would be sent to appellant.