Roberts v. National Health Corp., 1998 U.S. App. LEXIS 446 (4th Cir. 1998) – decided January 14, 1998 – United States Court of Appeals for the Fourth Circuit – Robert E. Hoskins

I represented Roberts. I think back on this case and all I can remember is that it seemed like a “sure thing” when it came through my door, but no court agreed with my view. Roberts dealt with COBRA notice issues. I get many opportunities to represent folks who claim that they did not receive a COBRA notice from their employer to continue health insurance coverage. When such a case comes to me, the first thing I do is write to the employer and ask for a copy of the COBRA notice they provided to my prospective client. Ninety-five percent (95%) of the time the employer is able to provide the notice (and another 4½ % the employer admits they did not give notice and immediately provides it after I write). Roberts is the only case of mine that involves COBRA notice that has ever gone to the Federal Circuit Court level. Roberts was truly unique. Roberts came to me claiming that she not receive COBRA notice. When I asked her employer to provide the notice, they could not. In fact, all the way through the circuit court level the employer admitted that it could not produce the notice that it allegedly sent to Roberts, but the employer was adamant that it did send the notice, nonetheless, because its mailing records showed that it did. I argued that the inability to produce the notice demonstrated that the employer had not met its COBRA notice requirements and, further, that the employer violated ERISA’s record keeping requirements. The district court ruled against me (click here to see the district court opinion) and I appealed on Roberts’ behalf to the United States Court of Appeals for the Fourth Circuit. I truly believed that I would prevail on appeal, but that did not happen. Roberts is one of the few cases in my career where I saw things one way and the courts who considered the case saw things very differently. In a very succinct and to the point opinion, the Fourth Circuit ruled against me and held that the inability to produce the COBRA report was “insufficient to overcome the fact that (the employer) met its burden of proving that it complied with COBRA’s notice provisions”. The court also directly addressed the substance of COBRA’s notice provision holding:

“29 U.S.C. § 1166(a)(4) requires a notice to disclose “such beneficiary’s rights under this subsection.” The information should adequately inform the employee about “the coverage [the employee] [is] entitled to receive and the money that [the employee] owes in order to maintain [] coverage.” Lincoln Gen. Hosp. v. Blue Cross/Blue Shield of Nebraska, 963 F.2d 1136, 1140 (8th Cir. 1992). The notice must be sufficient such that the discharged employee could make an informed and intelligent decision whether to elect continuation coverage. See id. at 1140; Meadows v. Cagle’s, Inc., 954 F.2d 686, 692 (11th Cir. 1992).

Agreeing, as Roberts specifically does on appeal, that NHC did timely send her a COBRA notice, based upon its evidence that it followed its usual and customary business procedure of mailing its form COBRA letter to her at her proper address, it follows that that same form letter should be used to determine whether NHC’s notice was substantively adequate in terms of the requirements of ERISA. In fact, the only evidence in the record from which the adequacy of the notice sent to Roberts may be determined is NHC’s form COBRA letter. We find that the form letter complies with the mandates of § 1166(a)(4). The letter notifies the employee of the date of termination of coverage, as well as the reason for such termination. It sets forth the applicable law as to the requirement of the employer to continue to provide health benefit coverage to the employee, the cost (via an attachment) of the coverage, and the length of time health benefit coverage will continue. It further sets forth all requirements of the employee to elect and keep such coverage, as well as the parameters of the coverage.”

If Roberts came to me today, I would still bring her suit. This just happens to be one of those cases where I will never understand the court’s holding and I just see things a different way. Obviously, the court’s opinion matters and mine does not. (Click here to see the Roberts opinion.)