                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ___________

                                No. 96-2285
                                 ___________

Bonnie L. Geissal, as beneficiary      *
and representative of the Estate       *
of James W. Geissal, deceased,         *
individually and in a                  *
representative capacity on behalf      *
of the Group Benefit Program of        *
Moore Medical Corp.,                   *   Appeal from the United States
                                       *   District Court for the
             Plaintiff - Appellant,    *   Eastern District of Missouri.
                                       *
     v.                                *
                                       *
Moore Medical Corporation; Group       *
Benefit Plan of Moore Medical          *
Corp.; Herbert Walker,                 *
                                       *
             Defendants -
Appellees.
                                 ___________

                                           Submitted: December 11, 1996
                                                   Filed: June 10, 1997
                                 ___________

Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
                               ___________

FLOYD R. GIBSON, Circuit Judge.
      James Geissal filed this suit against his former employer, its group
health plan, and the plan administrator (collectively the "Plan"), claiming
primarily that the Plan violated certain portions of the Comprehensive
Omnibus Budget Reconciliation Act of
1986 ("COBRA"), as amended, see 29 U.S.C. §§ 1161-1169 (1994), when it
rejected his efforts to obtain continuation insurance benefits following
the termination of his employment. On motion for partial summary judgment,
the district court1 determined that Geissal, who at the time of his
discharge was also insured under a group health plan sponsored by his
wife's employer, was not entitled to take advantage of the continuation
coverage mandated by COBRA. The district court also concluded the record
does not support Geissal's assertion that the Plan should be equitably
estopped from denying him COBRA benefits.       Bonnie Geissal, who was
substituted as plaintiff upon James Geissal's death, appeals the district
court's decision, and we affirm.

I.   BACKGROUND

      When Moore Medical Corporation ("Moore") fired James Geissal2 on July
16, 1993, he had been employed by the company for a little over seven
years. During his tenure with Moore, James, who suffered from cancer,
participated in the group health plan the corporation offered to its
employees. See 29 U.S.C. § 1167(1) (1994) (defining "group health plan"
for purposes of COBRA's continuation requirements). At the same time,
James was a beneficiary under a plan provided by his wife's employer, Trans
World Airlines ("TWA"), through Aetna Life Insurance Company ("Aetna").
Put simply, then, James enjoyed "dual coverage" before he lost his job.

      In an affidavit submitted to the district court, James stated that
he was unhappy about the circumstances surrounding his termination and even
requested, pursuant to




      1
       The HONORABLE DAVID D. NOCE, United States Magistrate Judge for the
Eastern District of Missouri, who presided over the case with the consent of the parties
in accordance with 28 U.S.C. § 636(c) (1994).
      2
        For ease of discussion, throughout the remainder of this opinion we often
identify James Geissal by his given name, "James." We use the surname "Geissal" to
refer to the appellant, Bonnie Geissal.

                                          -2-
Missouri law, a "service letter" from Moore detailing the grounds for his
discharge.3 According to the affidavit, though, James ultimately declined
to "consult with an attorney to investigate and to determine what rights
and claims [he] might have [had] against Moore," Geissal's App. at 23,
because Moore promised to afford him an opportunity under COBRA to maintain
his health insurance.      James further claimed that, based on these
assurances, he failed to locate an alternative policy to supplement the
insurance he received from his wife's employer.

      After receiving an "election form" outlining his COBRA rights, James
chose to receive continued coverage under Moore's group health plan. As
such, James made premium payments, which Moore accepted, for approximately
six months after his last day of work.       Nonetheless, by letter dated
January 27, 1994, the plan administrator informed James that he was
ineligible for COBRA benefits because he was already covered under TWA's
group policy. As a result, the insurer declared its intention to reimburse
James for the premiums he had tendered, and it also returned billings that
had been submitted by the cancer patient's medical care providers.
      James subsequently initiated this suit, principally asserting that
the Plan violated COBRA when it canceled his insurance coverage. Following
limited discovery, James moved for summary judgment against the Plan on
counts one and two of his four count Complaint. The district court denied
James's motion and instead entered summary judgment in the Plan's favor on
the two causes of action. See Geissal v. Moore Med. Corp., 927 F. Supp.
352, 361 (E.D. Mo. 1996) (citing Madewell v. Downs, 68 F.3d 1030, 1048-50
(8th Cir. 1995) (recognizing a district court's prerogative to grant
summary judgment sua sponte where the party against whom judgment will be
entered




      3
        The Missouri legislature requires certain corporate employers, upon request and
under statutorily prescribed circumstances, to furnish disassociated employees a signed
writing "truly stating for what cause, if any, such employee was discharged." Mo. Ann.
Stat. § 290.140 (West 1993).

                                          -3-
has received adequate notice and an opportunity to respond)).           In
particular, the court decided that COBRA does not, in most cases, compel
an employer to furnish continuation benefits to a discharged employee when
the individual is also insured under another group plan. See id. at 358-
60. The court additionally determined that James had not proffered facts
sufficient to substantiate his claim for equitable estoppel. See id. at
360-61. Consequently, the court dismissed counts one and two, but ordered
additional proceedings relating to the remaining grounds for relief.
Bonnie Geissal, who by this time had replaced her husband as plaintiff,
petitioned the court to make appropriate findings under Rule 54(b) of the
Federal Rules of Civil Procedure, thus permitting an immediate appeal from
the partial grant of summary judgment. The Plan did not challenge the
motion, and the court granted Geissal's request by entering final judgment
on counts one and two and staying further action pending our resolution of
this interlocutory appeal.4

II.   DISCUSSION

      A. COBRA
      The "staggering budget deficits now facing the United States"
prompted Congress to pass COBRA in 1986. S. Rep. No. 99-146, at 3 (1985),
reprinted in 1986 U.S.C.C.A.N. 42, 43. Ever resourceful, Congress also
used this massive piece of legislation as a vehicle to assuage its concern
with "the growing number of Americans without any health insurance coverage
and the decreasing willingness of our Nation's hospitals to provide care
to those who cannot afford to pay." H.R. Rep. No. 99-241,




      4
        Dubious of our jurisdiction, we instructed the parties to approach oral argument
prepared to discuss the possible prematurity of this appeal. Though we regard this as
an extremely close case, we are satisfied that the district court acted within its
discretion when it authorized Rule 54(b) certification as to counts one and two of
Geissal's four count Complaint. See Hardie v. Cotter & Co., 819 F.2d 181, 182 (8th
Cir. 1987)(reciting the standards applicable to entries of judgment under Rule 54(b)).

                                          -4-
pt. 1, at 44 (1985), reprinted in 1986 U.S.C.C.A.N. 579, 622. Namely,
Congress included within COBRA amendments to the Employee Retirement Income
Security Act of 1974 ("ERISA"), see 29 U.S.C. §§ 1001-1461 (1994), which
require sponsors of group health plans to extend temporary continuation
insurance benefits to individuals who lose coverage due to certain
qualifying events, see 29 U.S.C. § 1161(a).

      Normally, "qualified beneficiar[ies]," including employees and their
spouses and dependents, id. § 1167(3)(A), are entitled to receive
continuation coverage for eighteen or thirty-six months, depending upon the
nature of the qualifying event, see id. § 1162(2)(A). Aware that this
lingering obligation could prove burdensome to group health plans, however,
Congress enacted exceptions that permit earlier termination of benefits if
certain conditions are met. See id. § 1162(2)(B)-(E). Of present concern
is the provision allowing cancellation of COBRA insurance on

            [t]he date on which the qualified beneficiary first
      becomes, after the date of the election [to obtain continuation
      benefits]--

            (i) covered under any other group health plan (as an
      employee or otherwise) which does not contain any exclusion or
      limitation with respect to any preexisting condition of such
      beneficiary . . . .

Id. § 1162(2)(D).5
      The Plan banks on this language to support its decision to terminate
James Geissal's coverage. Because James was a beneficiary under his wife's
group health program with TWA, the Plan claims this statutory exception
rendered it perfectly permissible to declare him ineligible for
continuation benefits. Though Geissal does




      5
       In the course of this opinion, we cite to the version of the statute applicable to
the facts of this case. Cf. 29 U.S.C.A. §§ 1162(2)(D)(i), 1181-1191c (Supp. 1997)
(containing recent amendments).

                                          -5-
not deny that the TWA plan, administered through Aetna, constituted group
health insurance which did not "contain any exclusion or limitation with
respect to any preexisting condition," id. § 1162(2)(D)(i), she insists
that the Plan violated COBRA when it canceled James's insurance.
Purportedly seizing upon the "plain language" of the Act, Geissal contends
that a person is disqualified from receiving continuation benefits only if
he procures other coverage after he has chosen to secure COBRA insurance;
otherwise, the individual does not first become covered "under any other
group health plan" after the date of election. Under this reading of the
exception, James retained his eligibility for continuation coverage because
his status as a beneficiary under the TWA plan predated his discharge from
Moore.

      Geissal's interpretation of COBRA is not without supportive
authority. The United States Court of Appeals for the Tenth Circuit, the
first federal appellate tribunal to consider this question, has held that
the exception allows termination of continuation benefits only if the
beneficiary obtains other insurance after the date of election. See Oakley
v. City of Longmont, 890 F.2d 1128, 1133 (10th Cir. 1989), cert. denied,
494 U.S. 1082 (1990).6 Scrutinizing the disputed language "in light of the
entire legislative scheme" enacted by Congress, id. at 1132-33, the Tenth
Circuit concluded that the statute "contemplates continuation coverage to
remain available to the covered employee despite a spouse's preexisting
insurance policy," id. at 1133. The court explained:

      When we read the [exception's] introductory language in
      conjunction with "covered under any other group health plan (as
      an employee or otherwise)," we believe the plain meaning of
      this subsection cannot be construed to include a spouse's
      preexisting group plan as a condition to




      6
        A public employee was the plaintiff in Oakley, and the case thus arose under the
Public Health Service Act rather than ERISA. The pertinent continuation coverage
provisions in the two Acts are, for practical purposes, indistinguishable. Compare 42
U.S.C. §§ 300bb-1 to -8 (1994) with 29 U.S.C. §§ 1161-1169.

                                          -6-
     terminate continuation coverage. Indeed, [the appellant] did
     not "first become" covered under his wife's policy after the
     qualifying event that resulted in his termination from the
     City's employment.      Nor did Congress intend a covered
     employee's termination to become a condition triggering "other"
     coverage    under   a   spouse's   preexisting    group   plan.
     Consequently, only when we read the language of subsection (i)
     to refer to other coverage occurring after the qualifying
     event, do we preserve its plain meaning and give effect to
     Congress' intent.

Id. at 1132 (quoting 42 U.S.C. § 300bb-2(2)(D)(i)).

      More recently, a panel of the Seventh Circuit, with one judge
dissenting, reached the same result, but for slightly different reasons.
See Lutheran Hosp., Inc. v. Business Men's Assurance Co. of Am., 51 F.3d
1308, 1312-13 (7th Cir. 1995). That court focused upon what it perceived
to be Congressional intent to grant a displaced employee the opportunity
to maintain his insurance "status quo." See id. The court in large part
divined this motivation from the requirement that continuation coverage be
"identical to the coverage provide[d] under the plan to similarly situated
beneficiaries under the plan with respect to whom a qualifying event has
not occurred."    Id. at 1313 (quoting 29 U.S.C. § 1162(1))(alteration
added). Where an individual is fortunate enough to possess dual coverage
before the occurrence of a qualifying event, he will receive "identical"
benefits after the event, and thereby preserve his health care status quo,
only if given an opportunity to invoke COBRA continuation rights. See id.
at 1312-13. Elaborating upon this theme, and accentuating its conception
of the statute's "plain language," the court observed:

     The statute clearly provides that the employee's right to
     continuation coverage terminates only when he or she first
     becomes, after the election date, covered by any other group
     health plan.    The statute does not say that an employee is
     ineligible for continuation coverage if he or she is covered by
     a preexisting group health plan. . . . Therefore, an employee




                                   -7-
     loses the right to continuation coverage only if he or she
     chooses after the election date to accept coverage under
     another group health plan.

                              *     *     *

     The plain language of the statute dictates that an individual
     only loses COBRA eligibility if he or she chooses to accept
     alternative group health insurance after the qualifying event.
     By the terms of the statute, the individual has the choice
     whether to preserve the status quo and continue the prior level
     of coverage under COBRA or accept alternative coverage and
     discontinue COBRA.     In either case, for the [mandatory]
     statutory period . . ., the individual is never forced to
     accept a lower level of health care coverage than he or she
     received as an employee before the qualifying event.

Id. at 1312; see also King v. John Hancock Mut. Life Ins. Co., 500 N.W.2d
619, 621-23 (S.D. 1993) (adopting parallel interpretation of comparable
COBRA exception).
      The opinions of two other courts of appeals stand in direct
contradiction to Lutheran Hosp. and Oakley.      See National Cos. Health
Benefit Plan v. St. Joseph's Hosp., Inc., 929 F.2d 1558 (11th Cir. 1991);
Brock v. Primedica, Inc., 904 F.2d 295 (5th Cir. 1990). These tribunals
have emphasized that Congress designed COBRA to provide security for those
persons who, as a result of some disruption in their employment, are left
without any health insurance. See National Cos., 929 F.2d at 1569-70;
Brock, 904 F.2d at 296.     The continuation coverage compelled by COBRA
offers limited relief to these individuals by granting them a reasonable
amount of time to procure alternative insurance. See National Cos., 929
F.2d at 1570.    Once a person does, indeed, become a beneficiary under
another group health plan, the result desired by Congress is achieved, and
continuation coverage becomes unnecessary and superfluous. See id. In
recognition of this fact, the exception at issue allows an employer to
cancel continuation coverage whenever an employee receiving those benefits
obtains replacement insurance. See id. As viewed by the Eleventh Circuit,
the




                                   -8-
provision "clearly includes employees covered under their spouses'
preexisting group health plans.    In such a setting, the concerns that
motivated Congress' enactment of COBRA generally are not present; the
employee has group health coverage." Id.

      The Eleventh Circuit also rejected the notion that the statute's
"plain language" commands a different result. Chief Judge Tjoflat, writing
for the court, reasoned:

     Congress was concerned with the lack of group health coverage
     after an employee left his job; therefore, the relevant time
     period is that following his continuation-coverage election.
     In applying the termination provision at issue, then, it is
     clearly irrelevant whether an employee had other group health
     coverage prior to this election date -- an employer cannot
     refuse to offer continuation coverage to a former employee
     simply because that ex-employee had other group health coverage
     during his employment. Instead, Congress allowed ERISA-plan
     sponsors to terminate continuation coverage only on the first
     date after the election date that the employee became covered
     under another group health plan. Thus, it is immaterial when
     the employee acquires other group health coverage; the only
     relevant question is when, after the election date, does that
     other coverage take effect. In the case of an employee covered
     by preexisting group health coverage, the terminating event
     occurs immediately; the first time after the election date that
     the employee becomes covered by a group health plan other than
     the employer's plan is the moment after the election date. In
     effect, such an employee is ineligible for continuation
     coverage.

Id. Based on this analysis, the Eleventh Circuit held that an employee who
is insured under another group health plan may opt for continuation
benefits only if "there is a significant gap between the coverage afforded
under his employer's plan and his preexisting plan." Id. at 1571. The
existence of a significant gap in coverage gives rise to continuation
rights because in that situation "the employee is not truly 'covered' by
the preexisting group health plan." Id.




                                   -9-
      In dicta, we have previously described as "attractive" the position
announced by the Eleventh Circuit on this issue, see McGee v. Funderburg,
17 F.3d 1122, 1124 (8th Cir. 1994), but in McGee we gave "greater
significance [to] the definition of 'cover[age] under any other group
health plan,'" id. We do, however, take this occasion to explicitly follow
the approach adopted by the Eleventh Circuit.7      Having comprehensively
reviewed both the language of the relevant exception and its function
within the larger framework of COBRA, along with what little legislative
history is available to shed light on the subject, we find ourselves in
disagreement with the Seventh Circuit's decision that continuation benefits
were crafted to allow an individual to maintain his insurance "status quo."
See Lutheran Hosp., 51 F.3d at 1312-13. Rather, we are convinced that
Congress was fundamentally interested in making affordable health care
temporarily available to those who otherwise would find themselves "without
any health insurance coverage."8     H.R. Rep. No. 99-241, pt. 1, at 44
(1985), reprinted in 1986 U.S.C.C.A.N. 579, 622. Consistent with this
goal, COBRA confers upon displaced employees a chance to locate replacement
insurance without suffering any lapse in coverage, but it also allows
employers to cancel continuation benefits whenever the purpose underlying
the statute is served. Specifically, COBRA authorizes the termination of
continuation coverage on the day that a former employee becomes a
beneficiary under "any other group health plan," 29 U.S.C. § 1162(2)(D)(i),
and we think it is largely irrelevant under the Act whether the




      7
       Though the effective statutory language in National Cos. predated the 1989
amendments to COBRA, which are operative in the present appeal, this circumstance
does not make the Eleventh Circuit's viewpoint any less appealing. Cf. Teweleit v.
Hartford Life & Accident Ins. Co., 43 F.3d 1005, 1010 (5th Cir. 1995)("The [1989]
amendment did not change existing law but clarified and emphasized the original
Congressional intent behind COBRA.").
      8
        Of course, to the extent a person has no group health insurance independent of
that required by COBRA, the statute does offer him the right to preserve the status quo
of his health insurance. See Lutheran Hosp., 51 F.3d at 1317 (Coffey, J., dissenting).

                                         -10-
employee obtained that coverage before or after his COBRA rights are
activated.9     Cf. Lutheran Hosp., 51 F.3d at 1315 (Coffey, J.,
dissenting)("The goal of COBRA . . . is to provide temporary health
insurance to those people whose jobs are voluntarily or involuntarily
terminated, and are without health insurance other than COBRA coverage.
COBRA insurance is not, nor has it ever been intended to provide adjunct
or double health insurance coverage for those who are covered under another
pre-existing policy.")
      To be sure, the exception under discussion permits early cancellation
of benefits only when the employee "first becomes, after the date of the
election," 29 U.S.C. § 1162(2)(D), covered under any other group health
plan. Like the Eleventh Circuit, though, we do not consider this clause
to be an impediment to the conclusion we reach today. The quoted language
was not meant to absolutely insulate from the exception persons who enjoy
preexisting insurance, but was merely intended to pinpoint the day on which
the presence of that coverage becomes pertinent. In other words, it is
only after the election date that an employee's status as a beneficiary
under another group health plan will permit the termination of COBRA
benefits. See National Cos., 929 F.2d at 1570 ("[I]t is immaterial when
the employee acquires other group health




      9
        In reaching an opposite result, both the Seventh and Tenth Circuits relied, in
varying degrees, upon COBRA's instruction that continuation benefits be "identical to
the coverage provided under the [employer's] plan to similarly situated beneficiaries
under the plan." 29 U.S.C. § 1162(1); see Lutheran Hosp., 51 F.3d at 1313; Oakley,
890 F.2d at 1133. With respect, we fail to see how this requirement, which prevents
an employer from offering less favorable insurance to subscribers who invoke their
continuation rights, impacts COBRA's termination clauses. True, continuation
coverage must be indistinguishable from the insurance offered to other plan
beneficiaries, but an employer is still allowed to cancel this coverage whenever a
recipient of continuation benefits becomes "covered under any other group health plan."
29 U.S.C. § 1162(2)(D)(i); see also Lutheran Hosp., 51 F.3d at 1317 n.4 (Coffey, J.,
dissenting)(questioning the Seventh Circuit's reliance on the "identical coverage"
requirement).

                                         -11-
coverage; the only relevant question is when, after the election date, does
that other coverage take effect."). To use this case as an example, the
first time, after the date of election, that James Geissal became covered
under his wife's plan with TWA was the very moment after the election date.
As a consequence, it was well within Moore's rights to cancel James's COBRA
benefits unless there was "a significant gap between the coverage afforded
under [Moore's] plan and his preexisting plan." Id. at 1571. It is now
incumbent upon us to decide whether such a significant gap was, in fact,
present.10
      In ascertaining the existence of a significant gap in coverage, our
first order of business is to determine what considerations should guide
this inquiry.    Immediately following the inception of the "gap" test,
courts tended to evaluate the issue by fixating upon the actual expenses
incurred by the employee as a result of the COBRA cancellation. See, e.g.,
McGee, 17 F.3d at 1126 (mentioning, in dicta, that over $6,500 in personal
liability caused by termination of COBRA benefits would constitute a
significant gap); National Cos., 929 F.2d at 1571 (explaining that a
significant gap would occur where an employee, "despite his other coverage,
will be liable personally for substantial medical expenses to his and his
family's detriment"). With the passage of time, however, this methodology
has been criticized as representative of an




       10
         The significant gap test finds at least implicit support in the legislative history
accompanying the 1989 amendments to ERISA. In that year, Congress clarified that
an employee who obtains insurance under another group health plan is nonetheless
entitled to continuation benefits if his additional coverage "contain[s] any exclusion or
limitation with respect to any preexisting condition of such beneficiary." 29 U.S.C. §
1162(2)(D)(i). The House Ways and Means Committee reported that this extra
language was tailored to effectuate the purpose of continuation coverage, "which was
to reduce the extent to which certain events, such as the loss of one's job, could create
a significant gap in health coverage." H.R. Rep. No. 101-247, at 145 (1989) (emphasis
added), reprinted in 1989 U.S.C.C.A.N. 1906, 2923. One example of a gap in
coverage "occurs when the new employer group health coverage excludes or limits
coverage for a preexisting condition that is covered by the continuation coverage." Id.

                                           -12-
inappropriate post hoc determination which gives too little guidance to
employers who must decide, on the front end, whether termination of COBRA
benefits is warranted. See, e.g., Lutheran Hosp., 51 F.3d at 1317 (Coffey,
J., dissenting)("Both the district court and the majority agree that we
should not engage in post hoc determinations of insurance policies and
their coverage. Rather, the policies must be assessed at the time that a
person has the right to elect COBRA benefits because of termination of
employment."); Schlett v. Avco Fin. Servs., Inc., 950 F. Supp. 823, 833
(N.D. Ohio 1996)("The post hoc position advocated by Plaintiffs . . .
subjects the employer to an unacceptable degree of uncertainty as to its
legal obligations."); Taylor v. Kawneer Co. Comprehensive Med. Expense Plan
for Salaried Employees, 898 F. Supp. 667, 677 (W.D. Ark. 1995)("[W]e . .
. have serious doubts that the mere existence of financial liability for
medical expenses in and of itself qualifies as a significant gap in
coverage.").
      Upon reflection, and with the benefit of several years of case law
developing the relevant standard, we agree that placing primary
significance upon an employee's actual expenses is unhelpful to those who
must administer ERISA plans and does not adequately encompass other factors
which have greater bearing on the presence of a significant gap.
Therefore, we eschew this analysis in favor of a framework which, in our
opinion, is less dependent upon hindsight and more responsive to the
concerns which motivated Congress to enact COBRA. We believe a district
court confronted with this question should measure the gap by comparing the
policies' provisions in light of information available to the employer on
the day of the COBRA election.      To adjudge whether a significant gap
existed on that date, thus entitling the employee to continuation coverage,
the court should examine the policies "to determine their benefits, whether
there is any exclusion or limitation on the patient's preexisting
condition, and with a view to the treatment the beneficiary may foreseeably
require."       Lutheran   Hosp.,   51   F.3d   at   1318    (Coffey,   J.,
dissenting)(quotation and emphasis omitted); see also Schlett, 950 F. Supp.
at 833 ("[A] significant gap exists when coverage is excluded or limited
for certain types of conditions or treatments, when




                                   -13-
viewed, at the time of election, in light of the benefits offered,
preexisting condition exclusions, and the treatment the beneficiary may
foreseeably require.").

      In this case, Geissal has failed to carry her burden of proving there
was a significant gap between the Moore and TWA plans. Based on the record
before us, it is impossible for us to conclude that, on the election date,
the TWA plan offered appreciably fewer benefits, excluded claims for any
of James's preexisting ailments, or limited coverage for treatment likely
necessary for a cancer patient in James's condition. To the contrary, it
appears that TWA's insurance, while not completely identical to the Moore
plan, provided comprehensive medical benefits to employees and their
eligible dependents. Indeed, Geissal has satisfactorily identified only
two differences between the plans:      TWA's yearly deductible was $350
greater than the annual deductible under Moore's program, and the two plans
had separate lifetime maximums on benefits.11 These rather insubstantial
dissimilarities fall far short of the quantum of proof necessary to
demonstrate a significant gap in coverage. Cf. Lutheran Hosp., 51 F.3d at
1318 (Coffey, J., dissenting)("With respect to any dollar caps on coverage
(all that really is at issue here), the 'gap' (if any) must be significant
enough to alert a reasonable person of the potential for substantial
personal liability under the new plan, that does not exist under the old."
(quotation omitted)). Because James was insured under a comparable group
health program, the Plan did not violate COBRA when it deemed him
ineligible for continuation benefits.
      We offer one final comment before proceeding to the remaining issue
in this appeal. As the preceding discussion all too clearly illustrates,
the federal courts have experienced significant difficulty in attempting
to grasp the true meaning of 29 U.S.C. § 1162(2)(D)(i).        Our efforts,
though unquestionably well intentioned, have inevitably led to at least two
separate and irreconcilable interpretations of the law. This




      11
         Curiously, the record does not contain copies of the respective insurance
policies.

                                      -14-
deepening rift is extremely troublesome to us, especially given the
proliferation of group health plans and the importance of guaranteeing
equivalent protection to all ERISA beneficiaries throughout this nation.
Accordingly, we suggest that some definitive action, originating either
from Congress or the Supreme Court, might be appropriate.

      B. Equitable Estoppel
      Geissal also contends that the Plan is estopped from denying
continuation coverage to James. For a considerable length of time, the
availability in ERISA actions of this federal common law doctrine was an
open question in our Circuit, see, e.g., Jensen v. SIPCO, Inc., 38 F.3d
945, 953 (8th Cir. 1994)("[W]e have left open the question whether
equitable estoppel will ever give rise to an ERISA claim . . . ."), cert.
denied, 115 S. Ct. 1428 (1995), but we recently confirmed that "[c]ourts
may apply the doctrine of estoppel in ERISA cases only to interpret
ambiguous plan terms," Fink v. Union Cent. Life Ins. Co., 94 F.3d 489, 492
(8th Cir. 1996). The seminal issue in this appeal involves the Plan's
interpretation and application of COBRA's continuation coverage provisions,
statutory terms which are automatically included within every ERISA plan.
See 29 U.S.C. § 1161(a) ("The plan sponsor . . . shall provide . . .
continuation coverage under the plan."). It is safe to say that reasonable
persons could come to conflicting conclusions regarding the import of these
COBRA provisions, as the meaning of the statute has fairly evenly divided
the federal courts of appeals that have addressed the question.         See
National Cos., 929 F.2d at 1572 ("[T]he meaning and effect of COBRA's and
the Tax Reform Act's amendments to ERISA is something about which
reasonable persons can differ."). In the current appeal, then, Geissal
challenges the Plan's interpretation of ambiguous components of an ERISA
policy, and she has thus presented a cognizable claim of equitable
estoppel. See id.
      The principle of estoppel precludes a party from denying a
representation upon which another person has reasonably and detrimentally
relied. See Farley v. Benefit




                                   -15-
Trust Life Ins. Co., 979 F.2d 653, 659 (8th Cir. 1992). According to
Geissal, the Plan assured James that he was entitled to continuation
coverage, and he relied on the Plan's representations by neglecting to
obtain other insurance and by choosing not to pursue various legal remedies
against his former employer. Geissal's claim founders, however, because
she has not adverted to facts establishing that James's alleged reliance
was detrimental. To succeed on an equitable estoppel claim premised upon
foregone insurance coverage, a plaintiff must demonstrate that alternative
insurance was available. See Smith v. Hartford Ins. Group, 6 F.3d 131, 137
(3d Cir. 1993)(deciding under similar circumstances that a party proves
detrimental reliance by demonstrating that he could have obtained other
insurance which covered his illness); cf. National Cos., 929 F.2d at 1574
(discerning detrimental reliance where the plaintiffs "had, in fact, found
another insurance company willing to cover [the beneficiary's medical
condition]"). Geissal has not made this showing, but has merely proffered
a conclusory contention that James surely would have been able to purchase
some supplemental policy.     This is insufficient to withstand summary
judgment. See Smith, 6 F.3d at 137.
      Likewise, Geissal has not shown that James suffered a concrete injury
attributable to his failure to seek legal redress based on the termination
of his employment. It is not enough to assert, as Geissal has, that James
"felt Moore had been very unfair in discharging [him]," Geissal's App. at
23, and that he "gave some thought to whether [he] should consult with an
attorney to investigate and to determine what rights and claims [he] might
have [had] against Moore," id. Instead, as an absolute minimum to overcome
summary judgment, an estoppel plaintiff must point to some facts which
indicate that the lost causes of action were meritorious. Geissal has not
even begun to satisfy this burden, for the record before us is completely
bereft of any materials detailing the nature of James's employment with
Moore or the circumstances surrounding his discharge.         Consequently,
because Geissal has not substantiated her allegations of detrimental
reliance, we hold that the district court was correct in summarily
dismissing the equitable estoppel claim.




                                   -16-
III.   CONCLUSION

      The Plan did not violate COBRA when it terminated James's
continuation insurance coverage, and the record does not support Geissal's
contention that the Plan should be equitably estopped from denying
coverage. As such, we affirm the district court's entry of partial summary
judgment for the Plan.

       AFFIRMED.

       A true copy.


            Attest:


                    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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