Court Says COBRA Notice Claim Was Timely

August 23, 2011 ( – The 11th U.S. Circuit Court of Appeals has found a former Washington Mutual employee’s claim that he was not properly provided with a COBRA notice was filed within the statute of limitations period.

In reversing a lower court decision, the appellate court said it and other courts have applied a federal common-law rule under which a claim accrues when a plaintiff either knows or should know that he has sustained an injury. Dave Cummings said he learned of his right to receive the COBRA notice in a meeting with his lawyer on March 20, 2008. Cummings filed his suit on July 24, 2008, which is within the one-year limitations period that applies to COBRA improper-notice claims, if that period began on March 20, 2008.  

The court noted that under the Consolidated Omnibus Budget Reconciliation Act, the employer must notify its health care administrator of the employee’s termination within 30 days, and the administrator then must notify the employee of his continuation right within 14 days, So, after Cummings’ termination on March 19, 2007, WaMu had up to 44 days to notify him of his continuation right: until May 2, 2007. WaMu argued that this was the date the limitations period began to run.  

WaMu said after terminating Cummings, it sent him notice as required by COBRA of his right to continue his employer-provided insurance coverage for a period following his termination. However, Cummings says he never received this notice and as a result, his insurance was cancelled. He incurred over $2,000 in medical expenses on behalf of his wife.  

The appellate court opinion is here.