FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case came on for trial before the Court without a jury on the 11th day of December, 1995. Having considered the evidence and argument of counsel, the Court makes the following findings of fact and conclusions of law:
Findings of Facts
1)Plaintiff was employed by Defendant from November 26, 1990 until December 3, 1991 when she was terminated for absenteeism.
2) At the time of Plaintiffs termination from employment, Defendant’s health protection plan was a self-funded benefit plan subject to ERISA, 29 U.S.C. § 1001, et seq., and more specifically, the provisions of COBRA, 29 U.S.C. § 1161, et seq.
3) Plaintiffs termination was a qualifying event under COBRA, 29 U.S.C. § 1163(2).
4) Defendant was the plan administrator for its group health plan.
5) COBRA requires that the plan administrator provide notice to employees of their COBRA rights upon the occurrence of a qualifying event. 29 U.S.C. § 1166(a)(4)(A).
6) Plaintiff maintains she did not receive this notice of her COBRA rights.
7) To assure that the employees receive their COBRA notice upon the occurrence of the qualifying event of discharge, the secretary, Lynn Fisher, would take a packet of COBRA-related information, including the COBRA notice, prepare a mailing label with the employee’s last known address, affix the mailing label to the packet containing the COBRA information and notice, place the labeled packet in the outgoing mail bin, and record on the affected employee’s termination report the date the COBRA packet had been prepared.
8) Ms. Fisher prepared Plaintiffs COBRA packet and marked Plaintiffs termination report with the notation that the COBRA materials had been sent December 10, 1991.
9) From the outgoing mail bin, mail would be picked up by a mail clerk, Greg Garth. Mr. Garth would place proper postage on the mail, assure it was addressed, and put it into mail bags which were retrieved daily by the United States Postal Service.
10) Plaintiff claims she did not receive her notice of COBRA rights, and that failure to receive notice was the reason she did not elect COBRA coverage.
11) Plaintiff changed her residence address twice during her employment, the last time being about six (6) months before her termination.
*236 12) The COBRA notice mailed to Plaintiff was not returned to Defendant as undeliverable.
13) It is more likely than not that Defendant properly placed the proper COBRA notice in the United States mail addressed to Plaintiffs last known address.
14) Defendant made a good-faith effort to forward notice of coverage availability to Plaintiff at her last known address.
15) Plaintiff did not notify Defendant of her last change of address.
16) Any finding of fact that should more appropriately be a conclusion of law is deemed so.
Conclusions of Law
1) Section 1166(a)(2) of COBRA provides that an employer of an employee covered under a plan must notify the administrator of the plan of certain “qualifying events” within thirty (30) days of the event. 29 U.S.C. § 1161(a)(2). Section 1163 includes in its definition of qualifying events the termination of the employee. Section 1166(a)(4)(A) requires the plan administrator in turn provide notice of COBRA rights to the employee.
2) Other than requiring that the notice be in writing, § 1166(a)(2) provides no guidance on the manner in which notice is to be provided to the individual. Other courts that have reviewed this issue have held a good-faith attempt by the employer to comply with a reasonable interpretation of the provision is sufficient.
See Jachim v. KUTV, Inc., et al.,
3) Use of first-class mail was the procedure used by King’s Daughters Clinic. The Court finds that Defendant sent the notice pursuant to a procedure that constitutes a good faith effort to transmit a COBRA notice to Ms. Myers. Lynn Fisher was the employee responsible for addressing COBRA notices at Kings’ Daughters Clinic. She testified that once addressed, they were placed in a bin for postage. A mail clerk, Greg Garth, would collect the mail from each of the bins. He would check the address of each item to insure that address appeared facially complete. He would then weigh the item and place proper postage on the letter. Mr. Garth placed each item of mail into a United States Postal Service mail bag, which would be retrieved by a United States Postal Service employee. This was standard procedure for all mail at King’s Daughters Clinic. Lynn Fisher would note on termination reports that the notice had been mailed. This was done in relation to Plaintiff. Notice was sent in a good faith manner calculated to reach the employee. Plaintiff did not produce any evidence that the mailing was not done pursuant to company procedure. Thus, the COBRA claim should be dismissed.
4) Plaintiff claims that she did not receive her notice, thereby negating Defendant’s proof. However, the cases cited by Plaintiff are inapposite to the ease at bar, because in this case the employer presented evidence of the customary mailing practices used in its business and, more importantly, its business records reflected that the notice had been sent. As noted by the court in
Lawrence v. Jackson Mack Sales, Inc.,
5) The limitations period contained in 29 U.S.C. § 1113, contrary to the Plain
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tiffs assertions, does not apply to causes of action based on violations of the provisions contained in COBRA. Section 1113 applies only to causes of action based on violations of the provisions contained in Part 4 of Title 29, entitled Fiduciary Responsibility.
Starr v. JCI Data Processing, Inc.,
6) Because COBRA does not contain a statute of limitations, the Court is required to “borrow” the most suitable statute or rule of timeliness from some other source.
DelCostello v. International Broth. of Teamsters,
7) The purpose behind COBRA’s enactment was to provide employees with an opportunity to continue to receive group health insurance after the occurrence of a qualifying event, e.g. termination. In order to ensure that the employee has an opportunity to elect to continue insurance coverage, the statute imposes a duty on the employer to notify the employee of her right to continue health insurance coverage. However, the statute also imposes on the employee a duty to notify her employer of her desire to continue the health insurance coverage. If the employee fails to notify her employer within sixty days, a relatively short period of time, the employer may assume that the employee does not want to continue coverage and may terminate the employee’s health benefits. If the employee elects to continue coverage, COBRA requires the employer to continue coverage for 18 months from the date of the qualifying event.
Brown v. Neely Truck Line, Inc.,
8) Plaintiffs argument to adopt Texas’ residual or contract limitations period for COBRA causes of action is equally without merit. First, using a “catchall” limitations period like Texas’ residual statute is not generally favored.
Halkias v. General Dynamics,
9) During her trial, the Plaintiff admitted that she knew by March of 1992 about COBRA and her right to elect to receive continued health insurance coverage. Since the Plaintiff failed to file her lawsuit until September 16, 1994, her COBRA cause of action is barred by limitations.
10) Any conclusion of law that should more appropriately be a finding of fact is deemed so.
JUDGMENT
On the 11th day of December, 1995, this ease was tried before the Court without a jury.
In accordance with the findings of fact and conclusions of law entered by this Court, judgment is entered as follows:
IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff, Helen Myers have and take nothing of and from Defendant King’s Daughters Clinic.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that costs be taxed against the Plaintiff.
IT FURTHER ORDERED, ADJUDGED AND DECREED that this ease is DISMISSED and that any and all pending motions not previously ruled upon by the Court as DENIED as moot.