The opinion of the court was delivered by: Karen E. Schreier Chief Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Ryan Boddicker, contends that defendant, Esurance Insurance Services, Inc., violated the Consolidated Omnibus Budget Reconciliation Act (COBRA) because Boddicker did not receive his COBRA letter stating that he had a right to continue his healthcare coverage after his separation from Esurance. Esurance denies that it violated COBRA. This matter was tried to the court.*fn1
The following constitutes the court's findings of fact, which are found by a preponderance of the evidence, pursuant to Federal Rule of Civil Procedure 52(a)(1):
Found From the Evidence Boddicker joined the Navy as an operations specialist in 1993 and served on active duty until 1997, after which the Navy honorably discharged him. Tr. 26:1-25; Tr. 262:1-10. In 2003, Boddicker joined the Naval Reserves. Tr. 267:21-25. Esurance, based in San Francisco, California, provides insurance services and maintains a branch office in Sioux Falls, South Dakota. On August 8, 2004, Boddicker began working at Esurance's Sioux Falls, South Dakota, branch office as a licensed sales representative. Tr. 263:2-4.
The Naval Reserves called Boddicker to active duty in February of 2005. Tr. 268:5-7. Boddicker served in Kuwait with the Naval Reserves from February of 2005 until February 11, 2006. Tr. 268:5-7; Tr. 269:1-44.
In Kuwait, Boddicker served as a security guard for a port where all supplies, such as vehicles, equipment, and high-valued assets, were delivered to support the war in Iraq. Tr. 270:21-25-Tr. 271:1-5. While guarding a checkpoint, Boddicker experienced a traumatic event. Tr. 270:6-9. After that event, Boddicker received medical attention in Kuwait, and he began suffering from post-traumatic stress disorder (PTSD). Tr. 270-272. Boddicker was not recalled to active duty after he finished his tour of duty in Kuwait, and the Naval Reserves honorably discharged him in 2009.
Tr. 274:22-25-Tr. 275:1-2.
After finishing his tour of duty, Boddicker returned to Esurance as a sales agent in March of 2006. Tr. 275:14-16. Boddicker continued to suffer from PTSD and its symptoms, and he eventually requested and received intermittent FMLA leave from Esurance. Ex. 64; Tr. 284:1-10. In September of 2007, Boddicker began taking block FMLA leave until he had used all of his FMLA leave as of November 5, 2007. Tr. 488:23-24. Esurance considered Boddicker to have resigned on November 5, 2007. Tr. 488:23-24.
Until his separation, Boddicker participated in the group health insurance plan through Esurance. Tr. 488:25-Tr. 489:1-2. After his employment ended with Esurance, Boddicker should have received a COBRA notice from Esurance stating his right to continue his health insurance.
While Esurance is its own COBRA plan administrator, Dockets 78-1; 78-2, the company utilizes a third party, COBRAServ, to send COBRA notices to eligible employees after their employment with Esurance ends.*fn2 Docket 123 at ¶ 7; Tr. 487:23-25. The parties stipulated that COBRAServ placed a COBRA notice dated November 29, 2007, in an envelope, with sufficient postage, addressed to Boddicker's post office box address. Docket 123 at ¶¶ 7, 8; Tr. 487:23-25. Boddicker did not receive the November 29, 2007, COBRA notice. Instead, Boddicker received a COBRA notice in March of 2009, after he initiated this action. Ex. 31.
Ceridian, a third-party vendor used by Esurance, maintains Esurance's employees' personal records, including their addresses.
Tr. 664:16-18. According to Patti Simpson, a human resources generalist and one of Boddicker's supervisors, Ceridian has three parts. Tr. 634:1. The Human Resources Information System (HRIS) is a program that only human resources people may access. Tr. 634:1-2. The time card portion is where the employees punch in and out every day using their employee clock number. Tr. 634:2-4. The self-service piece is where the employees can change their personal information and view their paychecks and benefits.
Tr. 634:6-7. The self-service piece is at issue in this case.
When a new employee starts working at Esurance, a human resources person creates a new account in Ceridian for that employee.
Tr. 634:13-14. Simpson created Boddicker's file as a new employee.
Tr. 634:14-16. Simpson also processed Boddicker's termination of employment with Esurance in the Ceridian system. Tr. 633:3-8. Simpson logged into Ceridian's HRIS part, found Boddicker's information, and in the termination section, clicked "terminate," and put in November 5, 2007, as the date of his termination. Tr. 633:10-14. A pop-up box came up and asked if the employee qualified for COBRA benefits; Simpson testified that she clicked "yes," and she inputted the date his benefits should have accrued. Tr. 633:14-17. Simpson then clicked "save" and exited out of Ceridian.
During trial, Simpson testified on direct examination that COBRAServ obtains its addresses through Ceridian's self-service database. Tr. 615:7-9. But when confronted on cross-examination with her deposition testimony where she stated that she did not know where COBRAServ obtains employees' addresses, Simpson admitted that she did not know where COBRAServ obtained its addresses. Tr. 615:10-14. Esurance presented no additional evidence showing how COBRAServ obtains addresses to mail employees their COBRA notices. The court finds that Esurance has not proven where COBRAServ obtained Boddicker's address when it mailed a COBRA notice to him.
If COBRAServ did obtain employees' addresses from Ceridian, the court will next consider the evidence regarding Boddicker's address. Boddicker testified that he changed his address in Ceridian to reflect his most current address. Tr. 492:22-25. While Boddicker was stationed in Kuwait on military duty, he maintained a post office box in Sioux Falls as his mailing address. Docket 123 at ¶ 5. When Boddicker returned from military duty, he rented an apartment in Tea, South Dakota, with an address on Brian Street and renewed his post office box for six months.
Tr. 491:20-22; Tr. 491:23-24; Tr. 489:3-8. In April of 2007, Boddicker moved to Sioux Falls, South Dakota. Tr. 492:3-6. Around this time, Boddicker canceled his post office box and his Sioux Falls street address became his only mailing address. Tr. 493:12; Tr. 493:22-23.
Around the time that Boddicker moved to Sioux Falls in April of 2007, he changed his address in Ceridian and entered his current, Sioux Falls street address as his address. Tr. 492:22-25. Boddicker changed his address in Ceridian because he knew that employees are responsible for updating their information, Esurance sent periodic reminders to employees reminding them to update their information in Ceridian, and Boddicker had previously changed his information in Ceridian. Tr. 493:3-8; Tr. 664:18-20.
During the trial, Boddicker offered into evidence a letter dated October 8, 2008, which was addressed to Boddicker's attorney from attorney Ann Hajek, who had initially represented Esurance in this matter. Ex. 73. Hajek's letter described Boddicker's tenure with Esurance and set forth the number of hours of FMLA leave Boddicker had received. Ex. 73. Hajek also stated that she was enclosing several documents with her October 8 letter, including an October 16, 2007, letter that "Boddicker received when he was out on [FMLA] leave." Ex. 73 at 1; see also Ex. 90 (containing an unredacted version of the October 16 letter). Exhibit 90 is a letter dated October 16, 2007, from Simpson to Boddicker, which was addressed to Boddicker's Sioux Falls street address. Ex. 90.
Esurance's trial attorney, George Wood, initially objected to the admission of the October 16 letter into evidence on the basis of lack of foundation. Tr. 500:5-10 ("I'll object, Your Honor. Lacks foundation. Miss Hajek is not here to testify that she wrote the letter, or that these were the actual documents that were attached to the letter."). Esurance protested that Boddicker "had years to take Anne Hajek's deposition. Discovery has been closed." Tr. 502:2-3. Esurance objected to the admission of the October 16 letter even though Simpson testified that she electronically sent Boddicker's personnel file to Hajek, Tr. 644-45, and Esurance did not object to the admission of any other letters from Boddicker's personnel file. While Simpson admitted that she sent the file to Hajek, she was unsure whether the October 16 letter was among the documents she sent. Tr. 644:24-Tr. 645:1-5 (Q: "If she [Anne Hajek] represents that it [the October 16 letter] was in that personnel file, you don't know how it would have gotten in there?" A: "It possibly could be in the personnel file. Based on the letter, I do not believe-again, I don't know where the letter came from. I don't know.").
After the court ruled that it would hold the record open until Hajek returned to South Dakota and proper foundation for admission of the exhibit into evidence could be established, Esurance withdrew its objections to the admission of the October 16, 2007, letter, and the court received the letter into evidence. The court finds that Esurance attempted to mislead the court as to the authenticity of the October 16, 2007, letter.
The October 16 letter ends with "Regards," leaves a space for a signature, and then states "Patti Simpson; HR Generalist" with her phone number. Ex. 90. The letter does not have Simpson's signature on it because Simpson electronically sent the letter, along with Boddicker's entire personnel file, to Hajek. Tr. 644. Boddicker testified that the October 16 letter was addressed to his correct Sioux Falls street address.
Simpson testified that when composing a letter to an employee, she copies the address from Ceridian and pastes the address into the electronic letter and on the envelope. Tr. 600:7-13. Simpson started every letter fresh, meaning that she never composed a letter from an old letter, and she always took the employee's address from Ceridian. Tr. 602:1-7. Simpson further testified that she does not deviate from this process of composing letters and Ceridian is the only location where she would find an employee's address.
When questioned about the October 16 letter, Simpson testified that she did not know where the address came from and she could not recall typing the letter. Tr. 605:9-13; see also Tr. 606:24-25 ("Yes, but it's not - - I mean it was not - - I don't know where it came from, to be honest with you."). Boddicker's attorney then read Simpson's deposition to her. In response to the question: "If you'll note the address on that letter, October 16, 2007, is that the same system [using Ceridian's address list] you would have used in obtaining that address as you did earlier addresses?" Simpson replied: "I'm sure I did. I don't know where else I would have got this address." Tr. 606:5-9; Deposition of Patti Simpson, Docket 57-4 at 28 (same).
The post office returned a number of letters to Esurance that it had mailed to Boddicker at his post office box address. A letter dated August 31, 2007, was returned by the post office on September 14, 2007, two months before Boddicker separated from Esurance. Ex. 66; Ex. 70; Tr. 619:9-18. A letter dated October 25, 2007, from Simpson to Boddicker was returned on February 26, 2008. Ex. 58A; Tr. 620:1-17. Boddicker's termination letter from Simpson dated November 5, 2007, was returned to Esurance on February 27, 2008. Ex. 66; Tr. 621:1-11. Esurance also received returned insurance licenses for Boddicker with return dates of December 16, 2008, April 13, 2009, and some undated returns. Tr. 622:6-9. Esurance's personnel file for Boddicker, however, does not include returned mail from COBRAServ or Ceridian dated November 29, 2007. Tr. 616:18-25; Tr. 617-621.
Simpson testified that she did not contact Boddicker or otherwise ensure that Esurance had Boddicker's correct address after receiving the numerous returned letters addressed to Boddicker's post office box address.
Tr. 622:15-21. Contrastingly, Kuyper testified that when she received a returned letter for an employee, she checked the employee's address in Ceridian and followed up with the employee to ensure that Esurance had the employee's correct address. Docket 157 at 5. Kuyper would either contact the employee at Esurance's office or, if that employee no longer worked at Esurance, she would call the employee using the employee's phone number listed in Ceridian's database. Docket 157 at 5. There is no dispute that ...