. . . the magistrate judge followed the lead of the Fifth Circuit in Lopez ex rel. Gutierrez v. Premium Auto Acceptance, 389 F.3d 504, 507-510 (5th Cir. 2004) and cases cited therein which analogized such COBRA notice claims to unfair settlement practices claims. Such analogy is necessary, as the COBRA provision does not contain its own statute of limitations provision. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 158, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983)(where no express statute of limitations, borrow most closely analogous statute of limitations from state law).
Gilbert v. Norton Healthcare, Inc., 2012 U.S. Dist. LEXIS 17553 (W.D. Ky. Feb. 10, 2012)
The ERISA statutory scheme is many things, but one thing it is not. It is most definitely not the “‘comprehensive and reticulated statute’” (Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985)) that the federal judiciary has proclaimed.
For example, nothing is more basic to a remedial statute than the limitations period that defines its reach. As with other federal statutes, so with ERISA:
As is often the case in federal civil law, there is no federal statute of limitations expressly applicable to this suit. In such situations we do not ordinarily assume that Congress intended that there be no time limit on actions at all; rather, our task is to “borrow” the most suitable statute or other rule of timeliness from some other source. We have generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law.
Del Costello v. Int’l Bhd. of Teamsters, 462 U.S. 151 (U.S. 1983)
In Gilbert v. Norton Healthcare, Inc., the district court considered the question of the limitations period for a claim against a plan administrator for failure to comply with the notification provisions of the Consolidated Omnibus Recovery Act (”COBRA”), 29 U.S.C. § 1166. The magistrate judge, in an opinion approved by the district court, first turned to the Kentucky Unfair Claims Settlement Practices Act. That statute did not have a limitations period either.
The statutory default provision provided a 5-year limitations period for any “action upon a liability created by statute, when no other time is fixed by the statute creating liability.” The Court approved the use of that limitations period.
Note: The period for advancing COBRA notice violations ranges from a parsimonious one year period and up depending on the federal circuit.