                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3798
                                   ___________

Kelly D. Crotty,                      *
                                      *
             Appellant,               *
                                      *
       v.                             * Appeal from the United States
                                      * District Court for the
Dakotacare Administrative Services,   * District of South Dakota.
Inc., d/b/a Dakotacare and/or         *
Dakotacare COBRA Services,            *
                                      *
             Appellee.                *
                                 ___________

                             Submitted: April 19, 2006
                                Filed: August 1, 2006
                                 ___________

Before ARNOLD, LAY, and COLLOTON, Circuit Judges.
                           ___________

ARNOLD, Circuit Judge.

      The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires the
administrators of covered group health plans to notify terminated employees that they
have the option of continuing their benefits after their employment ends. See
29 U.S.C. §§ 1161(a), 1163, 1166(a)(4). Kelly Crotty filed the present lawsuit,
claiming that she lost the opportunity to extend her health insurance coverage because
Dakotacare Administrative Services failed to give her the required statutory notice.
The district court concluded that Dakotacare had shown that it had made a good faith
attempt to provide the notice, granted its motion for summary judgment, and denied
Ms. Crotty's motion for partial summary judgment. We reverse and remand for
further proceedings.

                                        I.
      Dakotacare administered the group health insurance plan of Big D Oil
Company. Ms. Crotty worked at a Big D retail location until September, 1993, when
Big D decided to close her store. Ms. Crotty's termination was a "qualifying event,"
see 29 U.S.C. § 1163, that required Dakotacare to notify her about her right to
continue her health coverage. See 29 U.S.C. § 1166(a)(4)(A).

       Ms. Crotty contends that she was not notified of her rights and that she first
learned of the option to continue her benefits when Dakotacare sent her a letter in
December, 1993, telling her that her period for exercising that option had expired. In
the interval, Ms. Crotty had developed medical problems that eventually required
surgery. Dakotacare rejected Ms. Crotty's attempts to extend her health benefits after
she received the expiration notice. Ms. Crotty eventually filed suit in district court,
claiming that Dakotacare had failed to comply with its duty to notify her of the
availability of benefits.

        This case turns upon whether Dakotacare presented evidence sufficient to show
that it complied with the notice requirements of § 1166(a)(4)(A). Plan administrators
bear the burden of proof on this matter. Stanton v. Larry Fowler Trucking, Inc., 52
F.3d 723, 728-29 (8th Cir. 1995), overruled on other grounds, Martin v. Arkansas
Blue Cross & Blue Shield, 299 F.3d 966, 969, 971-72 (8th Cir. 2002) (en banc). We
review de novo the district court's order granting summary judgment to Dakotacare.
Mercer v. City of Cedar Rapids, 308 F.3d 840, 843 (8th Cir. 2002).




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                                           II.
       Although § 1166(a)(4)(A) does not specify what steps should be taken to notify
the plan participant, we have said that "a good faith attempt to comply with a
reasonable interpretation of the statute is sufficient." Chesnut v. Montgomery,
307 F.3d 698, 702 (8th Cir. 2002) (quoting Smith v. Rogers Galvanizing Co., 128 F.3d
1380, 1383 (10th Cir. 1997) (quotation omitted)). Other courts have held that the
statute does not require proof of actual notice, so long as the administrator has sent the
notice by means reasonably calculated to reach the recipient. Degruise v. Sprint
Corp., 279 F.3d 333, 336 (5th Cir. 2002); Bryant v. Food Lion, Inc., 100 F. Supp.2d
346, 367 (D. S. C. 2000), aff'd, No. 00-1894, 2001 WL 434566 (4th Cir. April 30,
2001), cert. denied, 534 U.S. 993 (2001); Marsaglia v. L. Beinhauer & Son, Co., 987
F. Supp. 425, 432 (W.D. Pa. 1997), aff'd, 168 F.3d 479 (3d Cir. 1998); Keegan v.
Bloomingdale's, Inc., 992 F. Supp. 974, 977-78 (N.D. Ill. 1998). We agree that this
is the appropriate standard by which to judge compliance with § 1166(a)(4)(A).

       To carry its burden of proving that it satisfied the statute's requirement,
Dakotacare offered evidence about the measures that it took to notify Ms. Crotty of
her right to extend her health benefits. First, Dakotacare produced an audit report that
indicated that its computerized tracking system had generated a notice letter to
Ms. Crotty around the time that she was terminated. Second, Dakotacare presented
testimony from one of its employees about the company's procedure for mailing
notification letters. The employee, Miriam Barr, testified that after a Dakotacare
employee entered data about a plan participant, the company's computer program
would automatically generate a notice letter describing the options available to the
participant. She also testified that this notice typically was printed, sorted into a stack
with similar documents, placed by hand into an addressed envelope that was generated
by a separate computer program, and then mailed with any necessary postage. Ms.
Barr testified that this mailing system was in place at the time that Big D terminated
Ms. Crotty and that Dakotacare processed about 300 letters per month. None of

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Dakotacare's employees, however, recalled seeing or mailing a notification letter to
Ms. Crotty.

       Dakotacare contends that this evidence was sufficient to establish, as a matter
of law, that it took steps reasonably calculated to give the required notice to
Ms. Crotty. Dakotacare directs our attention to a number of cases in which district
courts have awarded summary judgment to a plan administrator despite the employee's
assertion that he or she never received notification. See, e.g., Southern Md. Hosp. Ctr.
v. Herb Gordon Auto World, Inc., 6 F. Supp. 2d 461, 465-66 (D. Md. 1998); Roberts
v. National Health Corp., 963 F. Supp. 512, 514-15 (D.S.C. 1997); Truesdale v.
Pacific Holding Co./ Hay Adams Div., 778 F. Supp. 77, 80-82 (D.D.C. 1991).

       We are not persuaded. In the cases that Dakotacare cites, the administrator
presented some evidence tending to show that the notice in question was in fact
mailed. In Southern Md. Hosp., 6 F. Supp. 2d at 465-66, for instance, the
administrator provided the court with a photocopy of the envelope addressed to the
recipient. In Roberts, 963 F. Supp. at 514-15, the evidence included a report
generated by the administrator that was stamped with the date that the notice was
mailed. And in Truesdale, 778 F. Supp. at 78-79, the plan administrator presented an
affidavit by an employee who recalled mailing the notice to the recipient. Cf. Jachim
v. KUTV Inc., 783 F. Supp. 1328, 1333-34 (D. Utah 1992). All of these cases
involved evidence not only that the employer had a system for sending out the
required notices, but also that the system was in fact followed with respect to the
person in question.

        Dakotacare has presented evidence that it had a system for sending out COBRA
notices. The only evidence that it can muster to show that the system was followed,
however, is an audit report indicating that at some point Dakotacare's computer system
generated a notice letter for Ms. Crotty. Dakotacare does not have any evidence that
this letter was printed out, placed in a properly addressed envelope, or sent through

                                          -4-
the mail. Because it did not present any proof that it placed the letter in the mail, it is
not entitled to the general presumption that "a properly mailed document is received
by the addressee," Davis v. U.S. Bancorp, 383 F.3d 761, 766 (8th Cir. 2004). Without
more, we conclude that Dakotacare failed to meet its burden of proving that it made
a good faith effort to take steps reasonably calculated to provide Ms. Crotty with the
required notice. Cf. Phillips v. Riverside, Inc., 796 F. Supp. 403, 408 (E.D. Ark.
1992).

       We agree with Dakotacare that § 1166(a)(4)(A) does not require any particular
system or specific approach to the delivery of notice. An administrator need not
provide a return receipt for the notice or present testimony of an employee specifically
recalling the individual letter. But we note, as we did in Stanton, 52 F.3d at 727, that
COBRA requires the plan administrator to keep records of the notices that it has
given, see 29 U.S.C. § 1027, and we hold that the administrator must provide
something that indicates that its mailing system was reliable and that the system was
followed in the relevant instance. The record here is devoid of evidence on both of
these crucial matters. We do not need to decide what steps would satisfy this
obligation; it suffices to say that Dakotacare has not met the minimum threshold
necessary to meet its burden of proof. Therefore Dakotacare was not entitled to
summary judgment.

                                           III.
       Because Dakotacare failed to present evidence that it satisfied its obligation to
notify Ms. Crotty, we also conclude that Ms. Crotty's motion for partial summary
judgment on the issue of notice should have been granted. When a party such as
Dakotacare has the burden of proof on an issue, it must present evidence sufficient to
create a genuine issue of material fact to survive a properly supported summary
judgment motion. See Beyer v. Firstar Bank, N.A., 447 F.3d 1106, 1108 (8th Cir.
2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986)). As we have
already said, we do not believe that a reasonable juror could conclude from the present

                                           -5-
record that Dakotacare had satisfied the notice obligation of § 1166(a)(4)(A). Cf.
RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). Ms.
Crotty was thus entitled to judgment on her claim that Dakotacare did not give her
notice of her right to extend her health insurance.

                                          IV.
      For the reasons stated, we reverse the judgment entered in favor of Dakotacare,
and we remand the case for an entry of partial summary judgment in Ms. Crotty's
favor with respect to the issue of notice and for any further necessary proceedings.
                        ______________________________




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