UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Leo Marquis

v. Civil No. 06-cv-233-JD

Opinion No. 2007 DNH 098

Fairview Nursing Home, Inc. and

Community Insurance Company

d/b/a Anthem Blue Cross and Blue Shield

O R D E R

Leo Marquis brought a declaratory judgment action in state

court seeking health insurance coverage from Anthem Blue Cross

and Blue Shield and Fairview Nursing Home, Inc. for his medical

expenses. The defendants removed the case to this court based on

the Employee Retirement and Income Security Act ("ERISA") and

federal question jurisdiction. The parties each have moved for

judgment on the administrative record.

Background

Leo Marquis is a former employee of Chardon Rubber Company. 

He stopped working because of a disability and received health

insurance coverage under Chardon's Anthem Blue Cross and Blue

Shield policy. He also received social security disability

benefits through Medicare. Chardon then went out of business,

and Marquis was laid off. 

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Beginning in January of 2004, Marquis continued his Anthem

health insurance coverage under the Consolidated Omnibus Budget

Reconciliation Act ("COBRA"). Marquis also was insured as a

dependent under his wife's health insurance from her employer,

Fairview Nursing Home, Inc. He also continued to be eligible for

benefits under Medicare, Part A. Between January and June of

2004, Marquis incurred medical bills for treatment of colon

cancer, among other things, which have not been paid. Anthem,

Fairview, and Medicare have all denied coverage, each contending

that another insurer provides primary coverage.

Discussion

The Anthem policy and Fairview's plan both have coordination

of benefits sections that establish criteria for determining

which insurance coverage is primary when more than one source of

coverage may be available. Under those provisions, Fairview and

Marquis assert that Anthem is primary, and Anthem asserts that

Fairview is primary. Anthem also asserts that it is secondary to

Medicare coverage. The United States is not a party in this

suit.

ERISA benefit plans are construed under federal law "guided

by common sense principles of contract interpretation." 

Balestracci v. NSTAR Elec. & Gas Corp., 449 F.3d 224, 230 (1st

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Cir. 2006) (internal quotation marks omitted). "Under ERISA,

unambiguous language in a plan is enforced according to its

terms." Id. Plan language "is ambiguous if the terms are

inconsistent on their face, or if the terms allow reasonable but

differing interpretations of their meaning." Rodriguez-Abreu v.

Chase Manhattan Bank, N.A., 986 F.2d 580, 586 (1st Cir. 1993). 

If disputed language is ambiguous, the court may refer to

extrinsic evidence to determine the meaning that was intended. 

Balestracci, 449 F.3d at 230-31. 

Fairview's plan states that its coverage will be secondary

if the claimant is covered as a dependent and he has coverage as

the insured under another policy. The parties agree that Marquis

is covered as a dependent under Fairview's plan and as the

insured under Anthem's policy. The Anthem policy provides that

"[t]he plan which covers the patient as the insured is primary to

the plan which covers the person as a dependent; except, if that

person is also a Medicare beneficiary and as a result of Medicare

regulations, Medicare is . . . secondary to the plan covering the

person as a dependent, and . . . primary to the plan covering the

person as other than a dependent (e.g. a retiree)."

 

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Anthem contends that the exception in its provision for

Medicare beneficiaries makes the Fairview plan the primary

coverage. Fairview did not address the Medicare exception in

Anthem's policy. 

Under Medicare laws, a large group health plan, like both

Fairview and Anthem, is primary to Medicare as long as the

benefits under that plan are based on the "individual's current

employment status." 42 U.S.C. § 1395y(b)(1)(B). "[C]urrent

employment status" means "the individual is an employee, is the

employer, or is associated with the employer in a business

relationship." 42 U.S.C. § 1395y(b)(1)(E)(ii). Marquis's

benefits under his wife's plan, through Fairview, were based on

her current employment status, while his own benefits from Anthem

were through COBRA based on his status as a laid off employee. 

Because the Medicare statute makes the Fairview plan primary to

Medicare coverage and may make Anthem secondary to Medicare

coverage, the Medicare exception in Anthem's policy applies in

this case.

Fairview did not address the Medicare exception in the

Anthem policy. In addition, Fairview's own plan similarly

provides that "[i]n cases where there are benefits available

either as a retiree or laid-off employee, the plan which covers

the person as a retiree or laid-off employee shall pay second." 

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Under that provision, Anthem's policy, which covers Marquis as a

laid-off employee under COBRA, is secondary to Fairview's plan. 

Therefore, based on the record presented and without considering

Medicare's coverage, as between Anthem and Fairview, the Fairview

plan is the primary insurer. 

Conclusion

For the foregoing reasons, the motion for judgment on the

record filed by Community Insurance Company, d/b/a Anthem Blue

Cross and Blue Shield, (document no. 12) is granted, in that its

coverage is secondary to the plan provided by Fairview Nursing

Home, Inc. for the plaintiff's health care costs. The motions

for judgment on the record filed by the plaintiff and Fairview

(documents no. 11 and 13) are denied.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 22, 2007

cc: Steven J. Dutton. Esquire

Scott H. Harris, Esquire

Jean-Claude Sakellarios, Esquire

Peter G. Webb, Esquire

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