New York Law Journal: 3/2010

Return to Sender: The Presumption of Mailing in Certified Mail Return Receipt Cases 

By: Michael C. Rosenberger and Jason Moroff  

Introduction

Generally, “the common law presumption of regularity, that a properly stamped, addressed and mailed envelope is presumed to have been received by the addressee, applies to ordinary first class mail.”[1] The presumption is “founded upon the probability that the officers of the government will do their duty, in the usual course of business.” [2] But wait a minute Mister Postman, if the presumption is based upon the usual course of business of the post office, then it stands to reason that the standard to raise such presumption would vary based upon the method of mailing chosen by the sender. The United State Postal Service offers myriad mailing methods beyond ordinary first class mail that may be selected by the sender. Pursuant to the United States Postal Service Domestic Mail Manual these methods are considered to be an “extra service” and require a supplemental charge as these methods of mailing require additional steps beyond that of ordinary first class mail.[3]

The purpose of this article is to address the legal standard regarding the presumption of receipt that should be applied to documents sent certified mail return receipt requested, and the impact this potentially stricter standard should have on a sender’s burden in demonstrating a document was actually received by its intended recipient.

Return Receipt: Purpose and Process

The purpose behind the certified mail return receipt service offered by the United States Postal Service is to, “provide a mailer with evidence of delivery (to whom the mail was delivered and date of delivery), along with information about the recipient’s actual delivery address.”[4] At the time the service is selected the mailer may choose to receive the return receipt either by mail or electronically.[5] Thereafter, the United States Postal Service keeps and maintains a record of delivery, which includes the recipient’s signature for a period of no more than two years.[6]

When a sender chooses to mail a parcel Certified Mail Return Receipt Requested instead of First Class (i.e., regular mail), they are electing an alternative method of delivery.  For parcels being sent First Class, the sender needs only to properly address and label the envelope and affix a sufficient amount of postage.  After a First Class parcel is dropped into a USPS mail receptacle, or handed to a Postal employee, it is considered to be under the exclusive care and custody of the postal service. Thereafter, delivery is presumed unless the parcel is returned.

In contrast, senders electing to use the Certified Mail Return Receipt Requested method of delivery are required to take several additional steps in order for the USPS to be able to deliver and properly confirm receipt of the parcel.  First, senders utilizing this method are required to fill out two forms, and must pay an extra fee for each in addition to the regular postage rate.  The first form is the green receipt, Certified Mail Receipt, PS Form 3800, which includes a barcode.[7] This form acts solely as an identifier for the parcel itself. The barcode is unique to the parcel, and enables the sender to track the parcel en route.  Customers are instructed when filling out Form 3800 that they can check online at the USPS website to locate the package and to confirm delivery.

The second form that must be filled out when electing to use this delivery method is the green card, Domestic Return Receipt, PS Form 3811.  It contains fields which indicate who the parcel was delivered to as well as the date of delivery.  In addition, the return receipt delivery record is maintained by the USPS.[8] The specific purpose of Form 3811 is to provide the mailer with both a receipt of mailing and a physical return receipt.  The recipient, or addressee, must print and sign their name within the appropriate sections of the green card. To complete delivery of the parcel, the postal carrier must obtain this information from the addressee and fill in the date of delivery.  Therefore, it can not be presumed that the parcel was received unless it was signed for by the recipient. The green card form is eventually mailed back to the sender via the USPS, and acts as the senders return receipt, or a verification of the confirmed delivery.

A sender choosing to mail a parcel via this alternative delivery method is afforded several benefits under the law. However, if a sender selects this alternative method they must also carry the burden of presenting the evidence of a properly signed return receipt card.  Although the law inNew Yorkwith regard to this subject is limited, a review of the existing case law reveals that a party electing this method may carry a far more substantial burden to obtain the benefit of the presumption of receipt.

The Law

The distinction between a parcel that is sent via certified mail return receipt requested as opposed to regular first class mail has been addressed by a number of lower courts and the Appellate Division Second Department.

The issue first arose in Metropolitan Life Insurance Co. v. McRae, where a judgment creditor moved for contempt against a debtor that failed to respond to an information subpoena.[9] The subpoena was mailed to the debtor by certified mail return receipt requested. However, the green cards were never signed and the mail was unclaimed. Although the general presumption of mailing does not require receipt to be established, such is not the case when an item is mailed via certified mail return receipt requested.  The court reasoned that “where the method of mailing requires the addressee to sign a return receipt, the presumption of receipt which attaches to first class mail is inapplicable, because the mailing cannot be received until the addressee signs for it.”[10] Therefore, an individual that chooses “certified or registered mail with a return receipt, the act of mailing alone is not sufficient to constitute service.”[11]Because the signed green receipt cards were never returned signed, the lower court found that the debtor could not be held in contempt because it could not be shown that the subpoena was actually received.

Thereafter, in State v. International Fidelity Ins. Co., the Department of Taxation and Finance sought to recover bonds issued on behalf of a purchaser.[12]  The plaintiff moved for summary judgment and the defendant cross-moved for the same relief.  In support of its motion for summary judgment defendant alleged that the bonds had been cancelled and written notice was sent to plaintiff via certified mail return receipt requested. Defendant argued that it sufficiently raised the “presumption of receipt” by describing the standard office practice and procedure used to ensure that items are properly addressed and mailed. However, the court disagreed with defendant’s argument because the mail was sent certified mail return receipt requested.  The court held that when “an item is mailed by certified mail return receipt requested, the Post Office’s duty would not end with the mere transmission of the letter.” After the letter is transmitted, “the Post Office must obtain the recipient’s signature on the green receipt card and return the receipt to the sender of the certified mail.”[13] The distinction “makes sense” as the “very reason for transmitting mail by certified mail is to avoid reliance on the presumption of receipt.”[14]

However, in Hastava & Aleman Associates P.C. v. State Farm Mut. Auto Ins. Co., an insurance carrier denied an applicant’s claim on the ground that the injured party failed to attend an Examination Under Oath thereby vitiating the policy. Defendant moved for summary judgment. In support of its motion defendant alleged that it mailed the EUO requests via certified mail return receipt requested. Although defendant annexed an affidavit from an individual with personal knowledge of the mailing practices and procedures, it did not annex the signed green receipt card. Plaintiff opposed arguing that while the insurer could prove mailing under the general mailing standard, the presumption of receipt does not attach to Certified Mail Return Receipt without the production of the signed green receipt card.

The Court rejected the plaintiff’s argument.  The Court reasoned that it is the act of mailing itself that raises the presumption of receipt and defendant should not be punished for choosing a mailing method that helps ensure that the mail is received.  The court also found that even to the extent the lack of receipt would be problematic, in the instant matter there was no actual denial of receipt by plaintiff.

However, the decision in Hastava, supra, fails to consider two important issues addressed in the cases previously set forth supra, which highlight the danger of using Certified Mail Return Receipt Requested when not required.  The first is that the presumption of mailing stems from the assumption that the officers of the government will do their duty and deliver the properly mailed and addressed parcel.[15] The presumption does not stem from the action of the mailer, but the presumed action of the USPS to do their duty.  In a case with certified mail the USPS is supposed to properly deliver the parcel and then return the Receipt after it is signed.  The USPS failure to return the receipt either means unequivocally that the USPS did not follow the rules and procedures of the agency with respect to the mailing at issue or the receipt was never signed.

The second misapprehension stems from the Court’s belief that the defendant would somehow be punished by losing the presumption of receipt by choosing an alternative method of mailing.  This misses the nature and purpose of the type of mailing being used.  Unlike First Class mail, Certified mail cannot simply be left in a mail box.  The mail itself must be signed for which requires an individual to be at the address.  As mail is delivered during normal business hours it is foreseeable that certified mail addressed to a residence would not be deliverable.  While certain notices may be left alerting the recipient that a parcel was missed it does not equate to receipt.  So by mailing the parcel Certified Mail Return receipt requested it can be argued that there is less of a chance the parcel will actually be delivered.  In such a case, it is the receiver that is being punished for the mailing method being used.

Conclusion

Certified mail is chosen to guarantee there is no mistake that the item has been received. The sender seeks certainty as opposed to a presumption, specifically requesting that a member of the United States Postal Service obtain a signature from the recipient and then to have the receipt mailed back to the sender.  This is the duty of the post office and since the general presumption is based upon the “probability “ that their job will be done, then the failure to present the signed return receipt card is fatal to proving receipt as it is presumed that if the green card reached its intended recipient it would have been signed for and returned. Under this standard, the failure to present the signed green return receipt card would actually create and irrebuttable presumption of non-receipt.


[1] See, Metropolitan Life Insurance Co. v. Young, 157 Misc.2d 452 (N.Y. City Civ. Ct. 1993; See also,News Syndicate Company v. Gatti Paper Stock Corp., 256 N.Y. 211 (1931).

[2] News Syndicate, supra at 214.

[3] USPS Domestic Mail Manual §503.

[4] USPS Domestic Mail Manual §6.2.1

[5] Id.

[6][6] USPS Domestic Mail Manual §3.2; §6.5

[7] USPS Domestic Mail Manual §3.3.3

[8] USPS Domestic Mail Manual §503.8.0

[9] 157 Misc.2d 452 (N.Y. City Civ. Ct. 1993).

[10] Metropolitan Life, supra at 454.

[11] Id.

[12] 181 Misc.3d 595 (N.Y. Sup.Ct. 1999)

[13] Id. at 599.

[14] Id.

[15] See, News Syndicate, supra.

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