Hartford moved to dismiss the action because it was filed after the expiration of the policy’s contractual limitation period. The plain language of the Policy gave her until December 8, 2005 to submit proof of loss: she alleged that her disability began on June 6, 2005; the ninety-day Elimination Period would ordinarily end on September 6, 2005, but her Elimination Period lasted two days longer because Wal-Mart made salary continuation payments to her until September 8, 2005; the start of the period for which Hartford would owe payment (if Heimeshoff had proven disability) was September 9, 2005; proof of loss was due ninety days later, or December 8, 2005. The deadline for taking legal action was therefore three years after that, or December 8, 2008.
Thus, Hartford argued, Heimeshoff’s suit was almost two years too late. (Hartford was able to establish all of these dates on a motion to dismiss because Heimeshoff had expressly incorporated the entire Administrative Record into her complaint.)
Hartford argued that, because ERISA does not specify a statute of limitations for benefit claims, the “applicable limitations period is that specified in the most nearly analogous state limitations statute[.]” Burke v. PricewaterhouseCoopers LLP LTD Plan, 572 F.3d 76, 78 (2d Cir. 2009). Because Heimeshoff sued in Connecticut, Connecticut law applied. Association for Preservation of Freedom of Choice v. Simon, 299 F.2d 212, 214 (2d Cir.1962) (“the forum state applies its own period of limitations”). Connecticut allows insurance policies to specify any limitation period that is at least one year after the date of loss. C.G.S.A. § 38a-290. “[T]his provision demonstrates that the legislature recognized that insurance carriers were free to contract for a period of limitation” that was no less than the period stated in the statute. Voris v. Middlesex Mut. Assur. Co., 297 Conn. 589, 596, 999 A.2d 741, 746 (2010). Thus, the three-year limitation period in the Policy was enforceable under Connecticut law.
Starting the limitations clock running when proof of loss was due (i.e., before administrative remedies were exhausted), was proper under ERISA. Burke, 572 F.3d at 81 (“[w]e join the Fifth, Sixth, Seventh, and Eighth Circuits in upholding written plan terms including limitations periods which may begin to run before a claimant can bring legal action”); see also, Salisbury v. Hartford Life And Acc. Co., 583 F.3d 1245, 1249 (10th Cir. 2009) (“We are not persuaded, however, by … reasons [advanced] for refusing to enforce the contractual limitations provision simply because the plan allowed the claimant’s cause of action to accrue before the end of the administrative process”). Burke noted that refusing to enforce the limitations period would be rewriting the policy “under the guise of interpretation” 572 F.3d at 81.
In so holding, Burke rejected a contrary Fourth Circuit decision, which had refused to enforce a similar contractual limitations provision. White v. Sun Life Assur. Co. of Canada, 488 F.3d 240, 247-48 (4th Cir.), cert. denied, 552 U.S. 1022 (2007). Burke expressly distinguished White’s reasoning. Burke, 572 F.3d at 81.
Applying its holding to the facts, Burke concluded:
Burke had ample time within which to bring her claim: following exhaustion of her administrative appeal, two years and five months of the limitations period remained. We hold the district court was correct to enforce the policy-prescribed limitations period in its entirety, including its prescribed start date, and to dismiss Burke’s claim as time-barred because it was brought after the expiration of the limitations period.
Burke, 573 F.3d at 81.
Heimeshoff made various arguments as to when proof of loss was required to be furnished. None of her arguments conformed to the terms of the Policy, but, even if they had, every one of them resulted in her action being untimely.
First, Heimeshoff argued that the deadline for providing proof of loss is modified by the following language: “If proof is not given by the time it is due, it will not affect the claim if… it was not possible to give proof within the required time[.]” This clause does not change the time proof of loss is due; to the contrary, it expressly applies when “proof is not given by the time it is due[.]” Even if this provision did change the deadline, it provides for a maximum extension of one year. As the original proof-of-loss deadline was December 8, 2005, it could not be extended past December 8, 2006. The litigation deadline then would be December 8, 2009. This is still almost a year before Heimeshoff sued.
Second, Heimeshoff claimed that Hartford extended her time to file proof of loss to September 30, 2007, which is the date Krafchick had requested for filing additional materials supporting the administrative appeal. If Hartford’s agreement to Krafchick’s request constituted an extension of the date proof of loss was due (to September 30, 2007), then the litigation deadline was September 30, 2010, almost two months before Heimeshoff sued.
In granting the motion to dismiss, the district court noted Heimeshoff’s argument that Hartford had extended the deadline to file proof of loss to September 30, 2007. The court did not accept that argument, but held: “Even if, as Ms. Heimeshoff argues, the Plan policy is ambiguous given her additional submissions throughout the claim and appeal process, pursuant to the June 5[, 2007] letter from Hartford, written proof of loss was due, at the latest, on September 30, 2007.” With that predicate, the district court held that Heimeshoff’s complaint was untimely:
The Plan unambiguously disallows legal action more than three years after the time written proof of loss is required to be furnished. … Therefore, even crediting Ms. Heimeshoff s argument regarding the uncertainty of written loss due dates, she could not take legal action any later than September 30, 2010. She filed her Complaint on November 18, 2010, and it is therefore untimely under the terms of the Plan policy.