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June 2, 1998


The opinion of the court was delivered by: SHADUR


 Lesley Popovits, f/k/a Lesley Gustafson ("Gustafson" *fn1" ) has sued her ex-employer Circuit City Stores, Inc. ("Circuit City") for its alleged violation of the Consolidated Omnibus Budget Reconciliation Act ("COBRA" *fn2" ) in failing to afford Gustafson continued health insurance coverage after her termination. Both sides have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, with their simultaneous filings in support of their respective motions having generated simultaneous responses. For the reasons stated in this memorandum opinion and order, Gustafson's motion is denied while Circuit City's is granted, and this action is dismissed with prejudice.

 Summary Judgment Standards

 Familiar Rule 56 principles impose on a party seeking summary judgment the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court must "read[] the record in the light most favorable to the non-moving party," although it "is not required to draw unreasonable inferences from the evidence" ( St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n.2 (7th Cir. 1997)). Where as here cross-motions for summary judgment are involved, it is necessary to adopt a dual perspective--one that this Court has often described as Janus-like--that sometimes forces the denial of both motions.

 Here no such risk exists, for the operative facts are really not in dispute. Instead the key issue comes down to the meaning of documents that Circuit City sent to Gustafson telling her of her COBRA rights and what she had to do to exercise them--and that issue really poses a question of law for this Court.


 Gustafson left Circuit City's employ as the result of conduct that Circuit City considered "gross misconduct" (a characterization that, if accurate, would have disqualified her for continued health coverage that COBRA otherwise guarantees (Sections 1161(a) and 1163(2); Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 680 (7th Cir. 1997)). When Gustafson then pursued a successful administrative appeal from the initial denial of unemployment compensation benefits that she had sought, Circuit City notified her of her right to continued coverage. Then after Gustafson sent Circuit City a timely confirmation that she did want to continue her coverage, Circuit City notified her of what had to be done for that purpose. Because Gustafson admits having received the notifications from Circuit City, and because she never made or tendered any premium payments after such notifications, the only question is whether the Circuit City notices complied with its obligations under COBRA. *fn3"

 Compliance with COBRA's Requirements

 After Circuit City had sent Gustafson a December 15, 1995 notification of her right to elect continued insurance coverage (Ex. 1 to this opinion), she returned a COBRA election form to Circuit City on February 6, 1996 (Ex. 2 to this Opinion is the February 1, 1996 forwarding letter from Gustafson's lawyer to Circuit City that enclosed the election form). That caused Gustafson's initial premium payment to be due on March 23, 1996, 45 days after she had made her election. In this instance the matter was more complicated than in the usual situation in which a departing employee is notified about COBRA eligibility either before, at or immediately after termination: Here Circuit City's initial determination that would have disqualified Gustafson for COBRA-required coverage, followed much later by its change of position in light of the administrative order reversing the original denial of unemployment compensation benefits, meant that Gustafson's health care coverage under COBRA's directive could be retroactive for part or all of a very extended timetable.

 As already stated, Gustafson's election form was returned to Circuit City by her lawyer--the same lawyer who now represents her. So Gustafson cannot in good conscience advance any possible complaint that a layperson might assert that she could not have been expected to understand any Circuit City document because it was legal in form. And in fact she has not done so, instead proffering an argument that attributes an illogical and unpersuasive meaning to Circuit City's notification.

 As a legally irrelevant matter, Gustafson's affidavit in support of her Rule 56 motion complains vigorously that Circuit City was wrong in discharging her (Aff. PP4-14), a total red herring in the context of her COBRA claim. *fn4" Rather the only question is whether Circuit City ultimately offered Gustafson the benefits assured by COBRA--and on that score her claim is that her reason for not paying anything is because Circuit City's February 9, 1996 notice (Ex. 3 to this opinion) demanded $ 2,572.02 for the entire 18-month continuation period available through COBRA, *fn5" while she needed only 7 months' gap coverage costing less than half that amount (she had obtained other medical coverage after February 1995).

 That argument by Gustafson is a sure loser, because it employs a spotlight that focuses only on the first two sentences of this paragraph of the February 9, 1996 letter, while attaching no meaning at all to the third sentence:

THERE IS NO EXTENSION OF THE INITIAL PAYMENT DUE DATE. You may pay the Initial Payment in installments; however, the full amount must be paid by the Initial Payment due date. If the full Initial Payment is not made by the due date, coverage will be continued through the date payment was made.

 It should be recalled that because of the delay in Circuit City's offer of COBRA-dictated coverage occasioned by the situation regarding its stated reason for Gustafson's termination, the February 9, 1996 letter was actually sent out after the entire 18-month period of Gustafson's COBRA-assured coverage had already run out (as Ex. 3 accurately stated, that had taken place on January 31, 1996, nine days before the February 9 letter was sent). So it had to be obvious to any objective reader that the letter was one that must be read through a common-sense lens. *fn6"

 To any reasonable reader, the plain message of the ignored third sentence is that Gustafson's payment of less than the "full Initial Payment" would have given her continued coverage through the date for which she did make payment at the specified rate of $ 161.48 per month. And that sensible reading is buttressed by the letter's earlier statement that coverage would be effective from August 1, 1994 and would continue until the earlier of several dates, one of which was Gustafson's becoming covered under some other health plan. It is surely absurd for Gustafson to contend that following a statement that her medical and dental insurance called for an aggregate payment of $ 161.48 a month, she would be required to pay more than $ 2,500 even if she had become covered under another health plan one or two months after leaving Circuit City's employ.

 Suppose however that Gustafson or her lawyer or both were in doubt on that score. It would have taken no effort at all for them to inquire of Circuit City to clear up their doubts *fn7" --but on the only admissible evidence that has been submitted on that score in conjunction with the Rule 56 motions (Aff. P10 from Nancy Brooking, who was Circuit City's Senior Benefits Analyst at the time, having responsibility for the administration of benefits to current and former Circuit City employees), neither of them did so. *fn8" Instead no inquiry was made, no payment at all was made or tendered, and they resorted instead to this groundless lawsuit.


 There is no genuine issue of material fact in this case, and Circuit City is entitled to a judgment as a matter of law. As stated at the outset, Gustafson's Rule 56 motion must be and is denied, Circuit City's cross-motion must be and is granted, and this action is dismissed with prejudice.

 Milton I. Shadur

 Senior United States District Judge

 Date: June 2, 1998


 December 15, 1995

 Lesley Gustafson

 7971 Woodridge Drive, # 202

 Woodridge, IL 60517

 Dear Ms. Gustafson and Family:

 Your participation under the Circuit City Stores Group Health Care Plans terminated on July 31, 1994; however, due to COBRA (federal legislation), you and/or your covered dependent(s) may elect to continue your benefits for a maximum of 18 months (or 36 months if you are a dependent losing eligibility).

 If you or a covered dependent were totally disabled within the meaning of the Social Security Act on July 22, 1994, such individual may continue coverage for up to 29 months. Such individual must inform Circuit City Stores's COBRA Administrator of his/her eligibility for the extended coverage before the end of the 18 month COBRA continuation period, and within 60 days of the date Social Security determines that individual to be disabled. After the initial 18 months of COBRA coverage, continued coverage for the disabled individual will be at an increased cost. Extended coverage terminates in the month that begins 30 days after Social Security determines the disability has ended or 29 months from July 22, 1994, whichever is earlier.

 You may continue coverage under the plan(s) in which you were enrolled on the above date, and only for your dependents who were covered at that time. However, you may add eligible dependents at Annual Open Enrollment (July 1) or within 31 days of a change in family status. Refer to the medical and/or dental Summary Plan Description(s) for details. You may elect to continue the coverage for which you are eligible, or your covered dependents may elect to continue the coverage if you do not.

 You have until February 12, 1996 to notify Circuit City Store's COBRA Administrator of your election to continue your coverage. If you elect to continue, upon receipt of your initial payment, your coverage will be reinstated retroactively to July 31, 1994. Consequently, any claims for services after that date that may have been denied, may then be refiled. If you so elect, your coverage will continue until the earlier of the date:

 1. of the expiration of the covered individual(s) maximum allowed period of continuation;

 2. you become covered under another group health care plan (except if the new group plan limits or excludes benefits for you or one of your dependents due to a pre-existing condition of such individual, then only that individual may continue COBRA coverage until the earlier of termination of the pre-existing condition limitation under the new plan or the termination of the right to continue COBRA coverage);

 3. or your dependent(s) become entitled to Medicare; (NOTE: If entitled to Medicare and enrolled in the dental plan, you can only continue ...

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