Simpson v. T.D. Williamson Inc.

                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                                     PUBLISH
                                                                         July 11, 2005
                    UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                              Clerk
                                TENTH CIRCUIT



    ZEDA SIMPSON,

         Plaintiff-Appellee,

    v.                                                  No. 04-5084

    T.D. WILLIAMSON INC.,
    a corporation,

         Defendant-Cross-Defendant
         -Appellant,

                     &

    JEFFERY SIMPSON,

         Defendant-
         Cross-Claimant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE NORTHERN DISTRICT OF OKLAHOMA.
                          (D.C. No. 02-CV-682-J)
               (321 F. Supp. 2d 1240 & 321 F. Supp. 2d 1247)


Submitted on the briefs: *



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Jay C. Baker, Tulsa, Oklahoma, for Plaintiff-Appellee.

J. Daniel Morgan, Gable & Gotwals, Tulsa, Oklahoma, for Defendant-Appellant.


Before LUCERO, PORFILIO, and BALDOCK, Circuit Judges.


BALDOCK, Circuit Judge.


      The Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. §§ 1161-

68 (COBRA), an amendment to ERISA, authorizes a qualified beneficiary of an

employer’s group health insurance plan to maintain coverage when she might

otherwise lose coverage upon the occurrence of a “qualifying event.”      See id.

§ 1161(a); Geissal v. Moore Med. Corp.     , 524 U.S. 74, 76 (1998). A “qualifying

event” requires the health plan administrator to notify the beneficiary that she

may elect to continue health insurance coverage in return for premium payments.

See 29 U.S.C. § 1166(a)(4);   Smith v. Rogers Galvanizing Co.     , 128 F.3d 1380,

1383 (10th Cir. 1997). “[D]ivorce or legal separation of the covered employee

from the employee’s spouse” constitutes a “qualifying event” under COBRA.

See 29 U.S.C. § 1163(3).

      The issue in this case is whether an Oklahoma divorce court’s interlocutory

protective orders requiring a husband, a “covered employee,” to stay away from

his wife, a “qualified beneficiary,” pending their divorce qualified as a “legal

separation,” thereby triggering COBRA’s notice requirement and the wife’s

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corresponding obligation to pay premiums in exchange for continued coverage.

A magistrate judge twice answered no – once in denying the plan administrator’s/

employer’s motion for summary judgment and once after a bench trial. Simpson

v. T.D. Williamson, Inc., 321 F. Supp. 2d 1240 (N.D. Okla. 2003) (Simpson I);

Simpson v. T.D. Williamson, Inc., 321 F. Supp. 2d 1247 (N.D. Okla. 2004)

(Simpson II). On appeal, the plan administrator/employer claims otherwise.

We have jurisdiction, 28 U.S.C. § 636(c)(3), review this question of statutory

interpretation de novo, see Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d

1267, 1274 (10th Cir. 2001), and affirm.

                                            I

      The facts are undisputed and ably set out in   Simpson II , 321 F. Supp. 2d

at 1248-51. In sum: Defendant T.D. Williamson (TDW) issued a group health

insurance policy to Plaintiff’s husband, a TDW employee. The policy covered

Plaintiff Zeda Simpson as a beneficiary. Plaintiff filed for divorce in July 2000.

Over the course of that summer, the divorce court entered three interlocutory

protective orders requiring Plaintiff’s husband to stay away from her and the

marital residence. Prior to entry of a final divorce decree, Plaintiff sent a letter

to TDW. Plaintiff requested that TDW reveal no information to her “estranged

husband” about medical services she received. TDW concluded a “legal

separation” had occurred based on Plaintiff’s letter and the divorce court’s


                                           -3-
interlocutory orders. TDW determined the parties’ “legal separation” was a

“qualifying event” under COBRA. As plan administrator, TDW sent Plaintiff

notice that she could elect continued health insurance coverage under COBRA.

Plaintiff objected to TDW’s determination but nonetheless elected coverage.

      Neither Plaintiff nor her husband paid the premiums due under her COBRA

election. In June 2002, TDW notified Plaintiff that it had canceled her health

insurance for non-payment of premiums. The following month, Plaintiff notified

TDW that the divorce court had entered a final divorce decree and she wished

to elect COBRA coverage.    See 29 U.S.C. § 1166(a)(3) (requiring notice to the

employer of a § 1163(3) “qualifying event” within 60 days). TDW replied that

Plaintiff’s COBRA rights had expired under her prior election due to nonpayment

of premiums and could not be reinstated.

      Plaintiff filed suit in federal court alleging TDW denied her rights under

COBRA. 1 Plaintiff sought health insurance coverage from TDW, reimbursement

for uninsured medical expenses and alternate health insurance premiums, and

attorney fees. The magistrate judge held the divorce court’s protective orders

did not constitute a “legal separation” and, therefore, did not constitute a



1
   Although Plaintiff urged the Oklahoma divorce court to address the COBRA
issue, the court declined to do so, stating on the record that the “matter regarding
COBRA is found to be a civil matter and irrelevant to this court.”   See Simpson
II, 321 F. Supp. 2d at 1250.

                                         -4-
“qualifying event” under COBRA. Accordingly, TDW’s notice to Plaintiff of

her COBRA rights prior to entry of the final divorce decree was invalid. The

district court granted Plaintiff’s requested relief and imposed a statutory penalty

against TDW. See 29 U.S.C. § 1132(c)(1).

                                              II.

       COBRA does not define the term “legal separation,” and we have not found

any circuit court authority defining the term as used in § 1163(3).    2
                                                                           The case we

find most analogous is       Nehme v. I.N.S. , 252 F.3d 415 (5th Cir. 2001). In that

case, the Fifth Circuit interpreted the term “legal separation” in the context of an

immigration case.        The relevant portion of the applicable statute provided that

“when there ha[d] been a legal separation of the parents,” a minor child born

outside the United States became a citizen if the parent having legal custody

was naturalized. Noting the lack of any “ready-made federal body of law on

domestic relations,” the court looked to the various state laws to formulate a

federal standard.   Nehme , 252 F.3d 426 & n.11 (citing state laws providing

for legal separation);     see also De Sylva v. Ballentine , 351 U.S. 570, 580 (1956).




2
  An employer’s insurance plan might purport to define the term “legal
separation.” TDW’s health insurance plan does not do so. We express no
opinion on how a plan’s definition might affect the outcome of a similar case.
Cf. Goodall v. The Gates Corp., 1994 WL 584555, at **2-3 (10th Cir. 1994)
(unpublished disposition).

                                              -5-
       The Fifth Circuit concluded that a “legal separation” is uniformly

understood to mean “a formal,      judicial alteration of the marital relationship.”

Nehme , 252 F.3d at 426; see also Brissett v. Ashcroft , 363 F.3d 130, 134 (2d

Cir. 2004). In other words, state laws allowing “legal separation” uniformly

“contemplate a judicial decree.”     Nehme , 252 F.3d at 426. A decree is “a judicial

decision in a court of equity, admiralty, divorce, or probate – similar to a

judgment of a court of law.” Black’s Law Dictionary 419 (7th ed. 1999).

Like a judgment, a decree connotes finality.

       The Fifth Circuit’s view is consistent with the fact that an action for “legal

separation” is separate and distinct from an action for divorce or dissolution of

marriage. See , e.g. , Okla. Stat. tit. 43, §§ 103, 105 (referring to actions “for

divorce, annulment of a marriage,     or legal separation”) (emphasis added). The

genesis of such action lies in the common law’s divorce “mensa et thoro,” – or

divorce “from bed and board,” – the forebearer of the modern day action for

“legal separation.”   See Holleyman v. Holleyman , 78 P.3d 921, 932 n.17 (Okla.

2003) (Opala, V.C.J., concurring). A decree of legal separation directs the parties

to live apart and defines the parties legal rights and obligations in regard to

custody, support, property division, and/or maintenance.        See , e.g. , Okla. Stat.

tit. 43, § 129 (authorizing an action for alimony without a divorce);       see also id.

§ 108 (authorizing order for custody, maintenance and/or property division where


                                            -6-
the court refuses to grant a divorce). But unlike a divorce decree, a decree of

legal separation does not dissolve the marriage bond.      3



       When defining a “qualifying event” in COBRA § 1163(3) to include

“divorce or legal separation” (emphasis added), Congress undoubtedly was

cognizant of state domestic laws and the distinction they draw between an action

for divorce and an action for legal separation.    Surely then, a divorce court’s

interlocutory protective order pending a divorce does not constitute a “legal

separation” under § 1163(3). As illustrated by the numerous protective orders

entered in the subject divorce proceeding, such a rule not only would engender

uncertainty for employees, employers, qualified beneficiaries, and plan

administrators as to what constitutes “legal separation,” but also would

jeopardize the continuation of the group health insurance coverage which

Congress sought to ensure in enacting COBRA.            See H.R. Rep. No. 99-241,

pt. I, at 44 (1985),   reprinted in 1986 U.S.C.C.A.N. 579, 622.




3
  At the time Plaintiff filed her divorce petition, Oklahoma’s domestic relations
statutes referred to an action for legal separation as an action for “separate
maintenance.” During the pendency of the divorce proceedings, Oklahoma
amended its domestic relations laws to refer specifically to actions for “legal
separation.” See LeCrone v. LeCrone, 596 P.2d 1262, 1264 (Okla. 1979)
(equating separate maintenance action with legal separation). Like COBRA,
Oklahoma law does not define “legal separation” despite the use of the term
in domestic relations statutes and case law. Compare Nehme, 252 F.3d at 426
(identifying four states that provide a statutory definition for “legal separation.”).

                                             -7-
      TDW’s contrary interpretation would place qualified beneficiaries of

an employer’s group health insurance plans at the mercy of plan administrators

by allowing the latter to determine what constitutes a “qualifying event” under

§ 1161(a). Yet § 1166(a)(3) places the initial burden on the “covered employee

or qualified beneficiary” to notify the plan administrator of a “qualifying event”

as defined in § 1163(3). COBRA’s purpose to ensure beneficiaries continuing

affordable health care coverage during transitional periods is best served by

relieving, to the extent possible, all interested parties from the responsibility

of making legal judgments.      See Phillips v. Saratoga Harness Racing, Inc.   , 240

F.3d 174, 179 (2d Cir. 2001).     We conclude a “legal separation,” and thus a

“qualifying event,” occurs within the meaning of COBRA §§ 1161(a) and 1163(3)

only upon entry of a final court decree adjudicating the parties legal rights and

obligations but preserving the marriage bond.

      AFFIRMED.     4




4
   TDW also challenges the district court’s awards to Plaintiff of out-of-pocket
expenses, attorney fees, and a statutory penalty. TDW argues generally that
Plaintiff failed to mitigate her damages and that it acted in good faith. This is
inadequate appellate argument. TDW has not cited a single authority to support
its arguments; nor has TDW argued that its positions are sound despite a lack of
supporting authority or in the face of contrary authority.  See Brownlee v. Lear
Siegler Mgmt. Servs. Corp ., 15 F.3d 976, 977-78 (10th Cir. 1994) (holding
appellate argument inadequate where party failed to “cite a single authority
or even present a developed argument”). Accordingly, we decline to consider
these arguments.

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