*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-60202

Summary Calendar

JOHN M. KING, SR., ET AL.,

Plaintiffs-Appellants,

versus

PROVIDENT LIFE AND ACCIDENT INSURANCE 

COMPANY, A TENNESSEE CORPORATION,

Defendant-Appellee,

and

ALCO MANAGEMENT, INC., A TENNESSEE 

CORPORATION; MOTEL RESTAURANT, INC., 

A TENNESSEE CORPORATION,

Defendants.

Appeal from the United States District Court

for the Southern District of Mississippi 

(92-CV-124)

September 21, 1995

Before REYNALDO G. GARZA, KING, EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

BACKGROUND
 

1 Plaintiffs-Appellants will be collectively referred to as

King.

 

2 Employment Retirement Income Security Act, 29 U.S.C. §§

1001-1461. COBRA, the Consolidated Omnibus Budget Reconciliation

Act of 1985, 29 U.S.C. §§ 1161-1168, is an amendment to ERISA which

requires employers to provide continuation of group coverage for a

specified duration to employees no longer eligible for group

coverage and to provide notice of change in benefits when a former

employee is no longer eligible for the continued coverage. A

"conversion plan" is a health insurance plan offered to replace

continued coverage. 29 U.S.C. § 1162 (5).

2

John M. King and his family members1 bring this appeal

regarding the adequacy of a conversion health insurance policy

under ERISA, COBRA and Tennessee law.2 King argues that appellee

Provident Life and Accident (Provident) failed to provide him

adequate notice of the change in conversion health benefits,

depriving him of an opportunity to obtain coverage, and is thus

obliged to provide him a conversion policy with benefits equal to

those under his group policy as an employee. Mr. King was stricken

with Lou Gehrig's disease in the summer of 1987 shortly after

obtaining group coverage through appellee Provident in March of

that year. His employer Motel Restaurant, Inc. terminated him on

August 6, 1987 when he was no longer able to perform his work

functions. Mr. King has required extensive and expensive care

since the onset of his disease. Home health care and alternative

treatments were provided under his group coverage as part of this

care. 

King elected upon termination to continue medical coverage for

himself and his family for an additional eighteen months under the
 

3 See 29 U.S.C § 1162(2)(A)(ii). 

 

4 The district court in the first action stated that this

issue was not properly raised and that the plaintiffs "retain[ed]

their right to file another lawsuit on the claim of inadequate

opportunity." We reversed when the court in the second action

found that res judicata precluded this second action; because of

the quoted language above, King maintained his right to bring the

inadequate opportunity claim. See King v. Provident, 23 F.3d 926,

928-929 (5th Cir. 1994).

3

group plan pursuant to COBRA.3 Another provision in his group plan

supplied Mr. King with another twelve (12) months of group

coverage. The conflict we address covers the period after this

last twelve months. Mr. King was eligible only for Provident's

conversion plan. This plan provided hospital and surgical benefits

solely with limited number of days for hospital stays. Home health

care and alternative treatment were not available under the

conversion plan. 

Unhappy with this choice, Mr. King declined to apply for

coverage and instead brought suit in state court seeking an order

that Provident provide a conversion plan with benefits equal to

those under the original plan (especially home health care). This

action was removed to federal court where the district judge held

on summary judgment that King's various state-based claims were

preempted by ERISA or were without merit. 

One issue survived for this second action: whether King had an

adequate opportunity to convert from his group plan to a conversion

plan.4 In a lengthy opinion, the district court held again for

Provident on summary judgment, this time on the grounds that there

was no basis to require Provident to offer a policy with terms
 

5 Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.

1988).

 

6 Fed.R.Civ.P. 56(c). Celotex Corp. v. Catrett, 477 U.S. 317,

323-324 (1986).

4

equal to those of the group plan. Additionally, the court held

that King had waived his opportunity to obtain the conversion plan

offered by failing to apply for it within thirty (30) days. This

appeal followed. 

 ANALYSIS

We review grants of summary judgment de novo by evaluating the

district court's decision using the same standards that guided the

district court.5 We will uphold the judgment only as long as there

was no genuine issue of material fact raised by the non-movant and

the movant was entitled to judgment as a matter of law.6 Neither

party to this appeal contends that issues of material fact remain

to be decided. King argues that inadequate notice under COBRA of

the change in benefits deprived him of an opportunity to obtain

coverage and that the conversion policy excluded a preexisting

condition in violation of Tennessee law. In rendering summary

judgment for Provident, the district court held that Provident

provided adequate notice of the benefits under the conversion plan

and that King waived his opportunity to obtain coverage under the

conversion plan. We agree with the district court and affirm its

grant of summary judgment for Provident. 

The district court found that Provident provided adequate

notice under ERISA and COBRA of the change in benefits under the
 

7 COBRA, 29 U.S.C. § 1166(a), requires that notification to

covered persons and their spouses of their right to continuing

benefits and thereafter their right to convert their group coverage

to individual coverage must take place on two occasions -- when

group coverage begins and after the onset of a qualifying event

such as termination of employment. King does not contend that the

notices were not given, only that they were inadequate.

 

8 Tennessee law provides three variations of conversion plans

that an insurer may offer to those whose group plans are to

terminate. See Tenn. Code Ann. § 56-7-2318 (a) (1994) (formerly

codified at Tenn. Code Ann. § 56-7-1507). None of the three

alternatives requires more than hospital and surgical benefits.

Under Tenn. Code Ann. § 56-7-2318 (b) and (d), an insurer may

provide benefits exceeding those in the alternatives; however,

Provident chose not to. 

 

9 This court sympathizes with King's unhappiness with the

conversion plan not providing home health care. However, we can

only speak to what the law commands, not how our sympathy dictates.

Neither ERISA, COBRA nor Tennessee law requires a conversion plan

equal to an employee's original group plan.

5

conversion plan.7 King's group plan provided that an insured "may

apply for a conversion plan providing hospital and surgical

benefits" (emphasis supplied). The group plan also stated that

"the amount of coverage [in the conversion plan] provided will be

subject to and determined by the laws of the state [Tennessee]

where the Plan is issued"8 and that "coverage provided will not be

identical to the coverage provided under this plan." Nowhere in

the group plan did Provident state that it would provide perpetual

coverage at the group plan level. Rather, Provident stated that

its conversion plan would offer hospital and surgical benefits, as

was the case.9

King argues that the provisions noted above were not specific

enough to provide notice of the benefits under the conversion plan.

According to the Kings, Provident waited until the outset of King's
 

10 The insurer in Baker promised a conversion policy without

describing its terms in any way. Id. at 157.

6

illness to set the parameters of his conversion coverage, thereby

avoiding continuing responsibility for home care coverage. By not

delineating conversion coverage, Provident made a mere promise to

provide such coverage. Thus, King believes he is entitled to

coverage like that he enjoyed under his group plan. For this

proposition, King relies on our holding in Baker v. Washington

Nat'l Insurance Corp., 823 F.2d 156, at 158 (5th Cir. 1987), in

which this Court upheld a district court finding that, absent any

restriction or explanation as to the nature of the coverage to be

provided by a conversion policy, the right of conversion had to be

construed as the right to continue the basic group coverage in

another type of policy.10 

However, this Court in Baker suggested ways that an insurer

could provide notice of the change in benefits and avoid the result

reached in that decision, including the following: stating in its

insurance contracts the specific level of coverage the conversion

policy will provide, attaching a copy of conversion policy to the

group policy or referring to a form of conversion policy on file

with the employer or state insurance authority. Id. at 159.

Provident provided sufficient notice of its conversion policy terms

that it need not provide benefits equal to those under the group

plan.

As the district court in the case sub judice noted in its

Memorandum Opinion and as is shown in the record, the conversion
7

policy expressly limited itself to hospital and surgical benefits.

The policy made reference to the Tennessee statute which outlined

the minimum coverage that was to be provided in a conversion policy

(essentially hospital and surgical benefits). Unlike the insurer

in Baker, Provident made no bald promise of conversion. Mr. King's

original group policy specifically stated that the conversion

policy would provide hospital and surgical benefits and that the

conversion policy would provide a different level of coverage than

the group plan. The district court properly held that King

received sufficient notice of conversion benefits under COBRA and

that he is not entitled under Baker to group plan benefits.

This Court also agrees with the district court that King

waived his right to Provident's conversion policy by failing to

apply for such coverage within the thirty-one (31) days after

benefits under the group plan terminated. Aware of his conversion

rights, King rejected the individual policy offered by Provident

and chose instead to file the first lawsuit. A finding of waiver

was appropriate in these circumstances.

Lastly, appellant argues at length that the conversion policy

violates a Tennessee statute requiring that "the converted policy

. . . not exclude a preexisting condition not excluded by the group

policy." Tenn. Code § 56-7-2317 (1994). We find no evidence in the

record that Provident intended to deny to coverage for King's

disease. On the contrary, an explanation form provided to King on

the conversion plan stated that, 

"Unlike most other types of health insurance plans, this

insurance is provided without regard to conditions of
 

11 See Exhibit B-5 attached to Plaintiff's Cross-Motion for

Summary Judgment. R. at 341.

8

health and provides coverage even for pre-existing

conditions (if such conditions were covered under the

former group policy) for which the insured may be under

treatment at its effective date."11

Appellant is dissatisfied with the diminished benefits under the

conversion plan for his admittedly grave affliction but couches his

dispute as one over coverage for preexisting conditions. As noted

above, Provident specifically offered to maintain coverage for

preexisting conditions. King's argument is unfounded.

Because Provident satisfied its duty of notice under COBRA and

offered a conversion policy in compliance with Tennessee minimum

standards, it was entitled to judgment as a matter of law. 

AFFIRMED.