Court Rules That COBRA Plan Was Secondary Insurer

Peggy Osting was provided coverage by her employer after termination of employment and she was also covered under her spouse’s plan with The Tuttle Group.  

According to Thompson.com, the COBRA plan had paid more than $100,000 in medical claims before discovering the error and trying to recoup its expenses.   After denying its obligation to pay claims as the primary insurer, Osting began submitting claims to Tuttle as primary.   Tuttle said, under its plan’s terms, the COBRA plan was the primary insurer.

The plans then sued each other to determine which was the primary and which was the secondary insurer.

The court found conflicting continuation of coverage provisions in each plan.   The court then decided that when that plan’s other four COB rules do not establish an order of benefit determination, the plan that has covered the person for the longer period of time will be primary. Thompson reports that the court noted that the COBRA plan also had a length of coverage rule with similar language.

The Tuttle plan had covered Osting for almost a year before her employer’s plan started covering her; therefore it was deemed to be the primary insurer.  

Tuttle argued that the COBRA plan should not recover payments it made on a primary basis based on a doctrine that allows dismissal of a suit when there was an unreasonable delay in a plaintiff’s assertion of its legal right.   The court rejected Tuttle’s argument saying the COBRA plan had no knowledge of other coverage, noting that claim forms were marked “No” on the availability of other coverage.