(concurring in result).
I concur in result in Issue I. Simply stated, King’s pre-termination qualification for Medicare coverage did not terminate his right to extended COBRA coverage under 42 U.S.C. § 300bb-2(2)(D)(ii). The Federal Courts of Appeal which have considered this issue have concluded that where there is a “gap” in coverage, pre-termination private medical coverage will not terminate extended COBRA coverage under 42 U.S.C. § 300bb-2(2)(D)(i). Oakley v. City of Longmont, 890 F.2d 1128 (10th Cir.1989); see also Brock v. Primedica, Inc., 904 F.2d 295 (5th Cir.1990). Although Oakley and Brock considered private group health coverage under subsection (i), the same analysis applies to Medicare coverage under subsection (ii). Application of the Oakley analysis is especially compelling since Oakley was decided before subsection (i) was amended to specifically apply to gaps in coverage for preexisting conditions.
I concur on Issue II. The United States Supreme Court has specifically held that a “bad faith” cause of action seeking punitive damages for improper processing of a claim for benefits is preempted by 29 U.S.C. § 1144(a) [ERISA § 514(a)]. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). I write only to note that Hancock did not raise this issue before the trial court. The issue of *624federal preemption is, however, jurisdictional and this Court must, sua sponte, determine whether the trial court has jurisdiction over the matter. Hardy v. West Central School District, 478 N.W.2d 832 (S.D.1991). Because the trial court has no subject matter jurisdiction over King’s “bad faith” cause of action, it must be dismissed.