Case Information
*1 United States Court of Appeals
For the First Circuit
No. 15-1273
DIONISIO SANTANA-DÍAZ,
Plaintiff, Appellant,
v.
METROPOLITAN LIFE INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Thompson, Hawkins, [*] and Barron,
Circuit Judges.
Efrain Maceira-Ortiz for appellant.
Frank Gotay-Barquet for appellee.
March 14, 2016
*2
THOMPSON , Circuit Judge . In this appeal under the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §§ 1001-1461, Appellant Dionisio Santana-Díaz ("Santana-Díaz") challenges the district court's dismissal of his suit as time-barred, arguing that he is entitled to equitable tolling, in part because the plan administrator, Appellee Metropolitan Life Insurance Company ("MetLife"), failed to include the time period for filing suit in its denial of benefits letter. We hold that ERISA requires a plan administrator in its denial of benefits letter to inform a claimant of not only his right to bring a civil action, but also the plan-imposed time limit for doing so. Because MetLife violated this regulatory obligation, the limitations period in this case was rendered inapplicable, and Santana-Díaz's suit was therefore timely filed. Acсordingly, we reverse and remand.
BACKGROUND
We begin by summarizing the facts relevant to this appeal. Santana-Díaz was a financial analyst and ten-plus-year employee at Shell Chemical Yabucoa, Inc. ("Shell Chemical"). He participated in Shell Chemical's employee welfare benefit plan (the "Plan"), which Shell Chemical provided through a group *3 insurance policy issued by MetLife. Beginning in November 2007, Santana-Díaz, who suffered from major depression, high blood pressure, asthma, and various other physical and mental ailments, claimed and received sick leave and then short-term disability leave. Santana-Díaz submitted his claim for long-term disability benefits on April 7, 2008, and in December 2008, received his first long-term disability benefit payment for the period beginning on November 23, 2008.
On April 5, 2010, MetLife sent Santаna-Díaz a letter informing him that, although he was currently receiving long-term disability benefits, the maximum duration period for his particular disability was twenty-four months, and his benefits would therefore expire on November 22, 2010. As MetLife explained it, under the terms of the Plan, long-term disability benefits were limited to twenty-four months if the beneficiary's disability was the result of a "mental or nervous disorder or disease limitation." "[T]he primary diagnosis preventing [Santana-Díaz] from working [was] major depression," MetLife said, which fell into that category, thus Santana-Díaz was entitled to long-term disability benefits only for the limited duration period. MetLife went on to explain that in order to continue receiving benefits beyond November 22, 2010, Santana-Díaz would have to submit *4 additional documentation that showed his disability was not subject to the limitation.
After receiving the April 5, 2010 letter, Santana-Díaz submitted various medical files and additional information. Upon reviewing the documents, MetLife denied Santana-Díaz's claim for an extension of benefits beyond the twenty-four-month limited period in a letter dated November 24, 2010. Santana-Díaz, proceeding pro se, filed an administrative appeal of the decision with the aid of his son, which MetLife likewise denied in an August 19, 2011 letter. Now this is important for our purposes today: both MetLife's November 24, 2010 initial denial of benefits letter and its August 19, 2011 final denial letter informed Santana-Díaz that he could bring a civil action, but neither letter included a time limit for doing so or mentioned at all that the right to bring suit was subject to a limitations period.
Nevertheless, the Plan -- which Santana-Díaz had received when Shell Chemical first becаme his employer at least ten years prior -- did contain a three-year limitations period that provided, in relevant part, that "[n]o legal action of any kind may be filed . . . more than three years after proof of Disability must be filed." Under the terms of the Plan, the *5 deadline for Santana-Díaz's proof of disability had been February 17, 2009 (and no, MetLife never mentions this start date in its letters either). According to MetLife, Santana-Díaz's time period for filing suit therefore expired three years thereafter.
Alas, Santana-Díaz, finally represented by counsel, did not file suit until August 18, 2013. The complaint alleged a 29 U.S.C. § 1132(a) claim for improper denial of benefits. In a motion for summary judgment, MetLife argued the suit was filed a year-and-a-half too late. The district court agreed, granting the motion and dismissing Santana-Díaz's complaint as time-barred. Santana-Díaz now appeals, arguing that the district court erred in dismissing his case because MetLife's failure to provide notice of the time limit for filing suit in its final denial letter entitled him to equitable tolling.
DISCUSSION
We review the district court's grant of summary judgment
de novo. Orndorf v. Paul Revere Life Ins. Co.,
ERISA itself does not contain a statute of limitations
for bringing a civil action, see 29 U.S.C. § 1132(a)(1)(B), so
federal courts usually "borrow the most closely analogous statute
of limitations in the forum state." Santaliz-Ríos v. Metro. Life
Ins. Co.,
*7 I. Limitations Period Start Date
Santana-Díaz's argument regarding the limitations period start date is anything but clear. He seems to want us to conclude that the three-year limitations period began to run on August 19, 2011, the date of the final denial letter, and not, as the Plan provides, on the date proof of disability was due.
Santana-Díaz argues that, because he was still receiving benefits on February 17, 2009, when proof of disability was due, he "had nothing to complain about," and had no reason to file suit. Thus, he says, it would be "clearly erroneous, patently unreasonable and will result in an unfair outcome" for the limitations period to have begun to run before he had suffered an actual injury. Santana-Díaz seems to suggest that perhaps the limitations period would, instead, have begun to run on November 24, 2010, when MetLife issued notice terminating his benefits. Except that date did not set off the limitations period either, he argues, because in that November 24, 2010 letter, MetLife stated: "In the event your appeal is denied in whole or in part, you will have the right to bring a civil action . . . ." Santana-Díaz and record citations, but we will not dismiss the case for these oversights. Although they are intermingled throughout his brief, Santana-Díaz provides an adequate description of the relеvant facts, and this case is neither so fact-heavy nor record-intensive that we are unable to locate the relevant facts in the record. We therefore reject MetLife's argument that the appeal should be dismissed on these grounds and proceed to the merits of the appeal. *8 argues that this instruction to await the outcome of the administrative appeal before bringing a civil action, without any other mention in the letter of a time limit for filing suit, obscured from him the fact that the clock for filing was already ticking, and that, on that basis, we should conclude the limitations period actually only began to run on August 19, 2011, when his administrative appeal was denied. (Three years from either date, November 24, 2010, or August 19, 2011, though, would have rendered Santana-Díaz's August 18, 2013 complaint timely.)
Santana-Díaz never really clarifies in his brief whether he is challenging the enforceability of the limitations provision, raising an estoppel argument, or presenting some combination thereof, and we are not quite persuaded that, under any of these theories, Santana-Díaz would be able to get around the limitations period start date as it is written in the Plan. Regardless, it *9 does not matter because, as we get to in a minute, we conclude MetLife's regulatory violation rendered the contractual limitations period in this case altogether inapplicable, and we therefore do not need to decide when that limitations period would have begun to run.
II. MetLife's Regulatory Violation
Santana-Díaz argues here, as he did below, that MetLife's final denial letter did not comply with 29 C.F.R. § 2560.503-1(g)(1)(iv) becausе it failed to provide notice of the plan-imposed time limit for filing suit, and that, as a result, equitable tolling should apply. The district court disagreed, argument convincing. Although the plaintiff in Heimeshoff never received benefits, she was equally unable to file suit until her claim was administratively exhausted. Yet, the Supreme Court found it fit to hold that the limitations period continued to run during this time, despite the fact that her administrative appeal had not yet been denied and she could not have filed her action until the final denial. See id. at 612-13.
As to equitable estoppel, that doctrine applies when a
defendant makes a "definite misrepresentation," on which it has
reason to know the plaintiff will rely, and the plaintiff
reasonably relies on it in failing to bring suit. Ramírez-Carlo
v. United States,
concluding that, even though MetLife had failed to provide notice, this failure did not entitle Santana-Díaz to the "extraordinary measure of equitable tolling" because Santana-Díaz "was made aware of both the time limit for plan participants to file legal action and how the plan calсulates time, since these matters were clearly and explicitly laid out in the group policy." We need not determine whether the district court correctly decided this equitable tolling issue, however, because we begin and end our review with the issue of MetLife's failure to note the time period for filing suit in its final denial letter.
As we explain in the following sections, we conclude that, in failing to provide such notice, MetLife was not in substantial compliance with the ERISA regulations, and that this rendered the limitations period altogether inapplicable. Because this resolves the question of whether Santana-Díaz's claim was time-barred, we need not discuss whether the limitations period would otherwise have been equitably tolled.
*11 A. Violation of Section 2560.503-1(g)(1)(iv) ERISA is a remedial statute intended "to 'protect . . .
the interests of participants in employee benefit plans and their
beneficiaries' by setting out substantive regulatory requirements
for employee benefit plans and to 'provid[e] for appropriate
remedies, sanctions, and ready access to the Federal courts.'"
Aetna Health Inc. v. Davila,
Furthermore, MetLife had and took the opportunity to respond,
albeit briefly, to this argument, indicating that it understood
Santana-Díaz was challenging its failure to comply with section
2560.503-1(g)(1)(iv). (We note that MetLife, moreover, was the
defendant-appellee in Moyer v. Metropolitan Life Insurance Co.,
The question before us is one of interpretation: the parties differ in their reading of this regulation, specifically, in their interpretation of which "time limits" must be included in the denial letter. Santana-Díaz argues the regulation requires plan administrators to include notice of not only the right to bring a civil action, but also the time limit for filing the action. MetLife disagrees. It suggests we should read the regulation as requiring only those time limits applicable to *13 internal administrative review procedures. In other words, MetLife seems to argue that the two phrases in section 2560.503- 1(g)(1)(iv) could be read separately, such that a plan administrator is, first, required to include in its denial letter a "description of the plan's review procedures and the time limits applicable to such procedures," and second, required to include "a statement of the claimant's right to bring a civil action," though not necessarily the time period for filing the action.
In support of its interpretation of section 2560.503-
1(g)(1)(iv), MetLife cites an unpublished case, Wilson v. Standard
Insurance Co.,
We decline to follow the Eleventh Circuit's approach here. Based on the plain language of the regulation, we hold that the correct interpretation of section 2560.503-1(g)(1)(iv) is that a denial of benefits letter must include notice of the plan-imposed time limit for filing a civil action. To repeat, the regulation states that the letter must contain a "description of the plan's review procedures and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action." 29 C.F.R. § 2560.503-1(g)(1)(iv) (emphasis added). We previously noted in Ortega Candelaria v. Orthobiologics LLC, 661 F.3d 675, 680 n.7 (1st Cir. 2011), a case in which we discussed but did not decide this issue, that we think "the term 'including' indicates that an ERISA action is considered one of the 'review procedures' and thus notice of the time limit must be provided." We further stated we would not find "compelling" the alternative reading, discussed in Wilson, that "notice of the right to sue under ERISA is in addition to, and divorced from, notice of *15 review procedures and the time frame pertaining to such procedures." Id. Indeed, interpreting the regulation that way -- as imposing two unrelated requirements -- would require us effectively to erase the word "including" from the sentence and to replace it with "and," such that the regulation would read: "The notification shall set forth . . . a description of the plan's review procedures and the time limits applicable to such procedures, [and] a statement of the claimant's right to bring a civil action . . . ." 29 C.F.R. § 2560.503-1(g)(1)(iv). It would then further require us to determine that a plan's time limit for filing, itself, could not otherwise be included as one of the "рlan's review procedures," or alternatively, that a civil action could not otherwise be one of the "plan's review procedures," for which time limits must be included. We will not interpret the regulation in a way that so contravenes the text, and not even the Eleventh Circuit in Wilson, to which MetLife cites, has done so. On the other hand, both the Third and Sixth Circuits have interpreted section 2560.503-1(g)(1)(iv) as we do today, and have held that the regulation requires a plan administrator to provide in its final denial letter not only notice of the right to bring a civil action, but also of the time limit for filing the action. In Mirza v. Insurance Administrator of America, Inc., 800 F.3d 129 (3d Cir. 2015), the Third Circuit reasoned that the word "including" was the "most important word in the sentence" for *16 purposes of interpreting the regulation, and that it signified that "civil actions are logically one of the review procedures envisioned by the Department of Labor." Id. at 134. The court therefore concluded that "29 C.F.R. § 2560.503–1(g)(1)(iv) requires that adverse benefit determinations set forth any plan- imposed time limit for seeking judicial review." Id. at 136. Likewise, in Moyer v. Metropolitan Life Insurance Co., 762 F.3d
503 (6th Cir. 2014), the Sixth Circuit concluded, based on the phrase, "including a statement of the claimant's right to bring a civil action," 29 C.F.R. § 2560.503-1(g)(1)(iv) (emphasis added), that "[t]he claimant's right to bring a civil action is expressly included as a part of those procedures for which applicable time limits must be provided," and thus held that denial letters must include the time limit for judicial review. Id. at 505.
*17
Our reading of the regulation is furthermore in keeping
with 29 U.S.C. § 1133's purpose of ensuring a fair opportunity for
judicial review, and with ERISA's overall purрose as a remedial
statute. Claimants are obviously more likely to read information
stated in the final denial letter, as opposed to included (or
possibly buried) somewhere in the plan documents, particularly
since, as was the case here, plan documents could have been given
to a claimant years before his claim for benefits is denied. The
Department of Labor, recognizing this, has required that the denial
letters themselves include certain information that the Department
has deemed critical to ensuring a fair opportunity for review.
[9]
We think it clear that the Department has included the plan-imposed
time limit for filing suit among this required information.
[10]
other circuits have, see Mirza v. Ins. Admin. of Am., Inc., 800
F.3d 129, 135-36 (3d Cir. 2015); Moyer,
all the more important where an employee benefit plan contains a contractual limitations period that, though legally enforceable, seems designed to confuse. Such is the case here. The limitations period began to run on the proof of disability deadline -- the
Thus, we hold that MetLife had a regulatory obligation to provide notice of the time limit for filing suit in its denial of benefits letter, and it failed to do so. Our holding is limited to the circumstances of the case before us, in that it applies only to plan-imposed time limits for filing suit. We reserve for another day the question of the extent of a plan administrator's obligation, under section 2560.503-1(g)(1)(iv), to provide, where the plan itself does not contain a contractual limitations period, notice of the forum state's applicable statute of limitations.
Having determined that MetLife violated section 2560.503-1(g)(1)(iv), we turn our attention to whether Santana- Díаz was prejudiced by the violation.
B. Prejudice
Our case law does not always require strict technical
compliance with the regulations -- all that is required of the
plan administrator is "substantial compliance" with the spirit of
complicated calculation for which we have already described --
while Santana-Díaz was still receiving benefits, and before he was
informed he would be eligible for those benefits for only a twenty-
four-month period. The period then continued to run while Santana-
Díaz administratively appealed the decision to deny an extension
of his benefits, and it expired just six months after MetLife's
final decision. If employers are to enjoy such "large leeway" in
designing their employee benefit plans, Black & Decker Disability
Plan v. Nord,
the regulations. Niebauer v. Crane & Co., Inc.,
820, 840 (1st Cir. 1997).
Here, we must first decide whether to remand to the
district court for a prejudice finding in the first instance, or
make such a determination ourselves. Generally, where a district
court has made a prejudice determinаtion, our case law has treated
it as a "factual conclusion that we review only for clear error."
DiGregorio v. Hartford Comprehensive Emp. Benefit Serv. Co., 423
F.3d 6, 13, 15-16 (1st Cir. 2005). But where the lower court has
made no factual finding as to prejudice, and where one could be
made on the basis of the administrative record before us, we have,
without remanding, made our own prejudice determination. See Bard
v. Boston Shipping Ass'n,
As we have already noted, the Department of Labor
requires plan administrators to give notice of the limitations
period in the denial of benefits letter -- even when the
information is also contained elsewhere in the plan documents, and
regardless of when the claimant last received a copy of the plan
documents -- because it recognizes that it is the denial of
benefits letter that most clearly and readily provides the
plaintiff with the information he needs to know to pursue review
of his claim. This leaves us with but one conclusion to draw,
which is that the regulation itself contemplates that failure to
include this information in the denial of benefits letter is per
se prejudicial to the plaintiff. Obviously, a plan administrator's
compliance with its regulatory obligation to give this notice in
its denial of benefits letters "ma[kes] a difference," Recupero,
118 F.3d at 840, because it notifies a claimant of the pending
deadline for filing his case. And ERISA's purpose of ensuring
*21
that claimants have a fair chance to present their cases remains
"the lodestar in determining whether there has been substantial
compliance with the notice provisions." Niebauer, 783 F.3d at
927. Thus, we hold that, where a plan administrator fails, as
MetLife did here, to include the time limit for filing suit in its
denial of benefits letter, and it has not otherwise cured the
defect by, for example, informing the claimant of the limitations
period in a subsequent letter that still leaves the claimant
sufficient time to file suit, the plan administrator can never be
in substantial compliance with the ERISA regulations, and the
violation is per se prejudicial to the claimant. See Moyer, 762
F.3d at 507 ("The exclusion of the judicial review time limits
from the adverse benefit determination letter was inconsistent
with ensuring a fair opportunity for review and rendered the letter
not in substantial compliance."); Mirza,
[the] time limit, a notification is not in substantial compliance with ERISA."). MetLife's defective notice therefore prejudiced Santana-Díaz.
C. Remedy
This leaves us with the question of the appropriate consequence for MetLife's regulatory violation. The parties dispute whether equitable tolling of the limitations period should be the remedy for a section 2560.503-1(g)(1)(iv) violation. Our review today, however, does not reach the equitable tolling question becаuse we conclude that MetLife's failure to include the time limit in the final denial letter rendered, as a matter of law, the contractual three-year limitations period altogether inapplicable.
Harkening back to our earlier discussion of Mirza and Moyer, we note that our sister courts in the Third and Sixth Circuits have resolved cases involving the same regulatory violation MetLife has committed here by concluding that the violation rendered the limitations period inapplicable. We think *23 their approach is the correct one. For example, in Mirza, the Third Circuit focused its analysis on the plan administrator's regulatory violation of failing to include the plan's time limit in its final denial letter, and explained, "we do not find equitable tolling to be an obstacle, or even rеlevant, to [the plaintiff's] claim." 800 F.3d at 133. It concluded that "[b]ecause the denial letter [the plaintiff] received on August 12, 2010 did not comply with the regulatory requirements, the one- year deadline for judicial review was not triggered," id. at 137- 38 -- in other words, it would not apply. To do otherwise, the court reasoned, "would render hollow the important disclosure function of § 2560.503-1(g)(1)(iv)," as plan administrators would then "have no reason at all to comply with their obligation to include contractual time limits for judicial review in benefit denial letters." Id. at 137.
Similarly, in Moyer, after concluding that "[the
plaintiff] was denied his right to judicial review as a result of
MetLife's failure to comply with § 1133," the Sixth Circuit
reversed the district court's dismissal on timeliness grounds and
*24
remanded, reasoning that "[t]he appropriate remedy is to remand to
the district court so that [the plaintiff] may now receive judicial
review."
The courts' reasoning in Mirza and Moyer makes sense, given that plan administrators are in the best position to know what plan-imposed time limits apply to the very plans they are charged with administering, and that the requirement to include such information in their denial letters imposes upon them the most minimal of burdens. To accept that plan administrators may nevertheless dodge this simple regulatory obligation so long as claimants have received the plan documents at some point during their tenure as employees, would, as Santana-Díaz argues, effectively make section 2560.503-1(g)(1)(iv) "dead letter."
Furthermore, this approach, as the Third Circuit also
discussed in Mirza, is in keeping with analogous ERISA cases in
the administrative review context where courts have declined to
enforce contractual limitations periods on account of a non-
compliant termination of benefits letter. In those cases, the
courts reasoned that a plan administrator's failure to comply with
the ERISA regulations by not providing notice of the time limit
for filing an administrative appeal rendered the limitations
period for administrative review un-triggered. See, e.g., Burke
v. Kodak Ret. Income Plan,
Accordingly, we hold that, as a consequence of MetLife's failure to include the time limit for filing suit in its final denial letter, the limitations period in this case was rendered inapplicable.
D. Statute of Limitations
Recall that in the absence of a contractual limitations
period within the employee benefit plan itself, the forum state's
most closely analogous statute of limitations applies to ERISA
*26
claims. Santaliz-Ríos, 693 F.3d at 59. Here, the Plan's
limitations period was rendered inapplicable, so we look to Puerto
Rico law for the closest statute of limitations. See Mirza, 800
F.3d at 137-38 (borrowing state statute of limitations for contract
claims where the plan administrator's regulatory violation
rendered the plan's limitations period not triggered). Because an
ERISA claim brought under 29 U.S.C. § 1132(a) to recover benefits
arises out of a contract between an employer and its employees,
courts in Puerto Rico have applied Puerto Rico's default fifteen-
year statute of limitations for contract claims, P.R. Laws Ann.
tit. 31 § 5294. Santaliz-Ríos,
Santana-Díaz filed suit on August 18, 2013, which is well within the fifteen years. Thus, this case was timely filed.
CONCLUSION
For the reasons we explain above, we reverse and remand for further proceedings consistent with this opinion. Costs to appellant.
Bell Tel. Co., 925 F.2d 1288, 1291 (10th Cir. 1991); Johnson v. State Mut. Life Assurance Co. of Am., 942 F.2d 1260, 1263 (8th Cir. 1991) (en banc).
Notes
[*] Of the Ninth Circuit, sitting by designation.
[1] According to the complaint, Santana-Díaz actually began his employment with Puerto Rico Sun Oil Company ("SUNOCO") in 1981 as a clerk, but SUNOCO sold its Yabucoa operations to Shell Chemical in 2002.
[2] For example, not all disabilities resulting from "mental or nervous disorder or disease" were limited to twenty-four months; the Plan made an exception for schizophrenia, bipolar disorder, dementia, and organic brain disease.
[3] The route by which this February 17, 2009 proof-of- disability deadline is arrived at, while undisputed by the parties, is labyrinthine. Under the Plan, proof of disability is due "within 3 months after the end of [the] Elimination Period," which, in turn, is defined as "360 days of continuous Disability," during which long-tеrm disability benefits are not paid, beginning on the day the beneficiary becomes disabled. Here, the Elimination Period began on November 28, 2007, when Santana-Díaz became disabled, and ended 360 days thereafter. By our calculations, this would have been November 22, 2008, but the parties, without explanation, agree that the Elimination Period ended on November 17, 2008. Accepting the parties' computation, Santana-Díaz's proof of disability was then due three months after that November 17, 2008 date. Hence, February 17, 2009.
[4] MetLife raises a preliminary argument that we should summarily dismiss Santana-Díaz's appeal because his brief does not technically comply with Federal Rule of Appellate Procedure 28(a)(6) in that it does not contain a statement of facts or citations to the record. We are none too pleased that Santana- Díaz's brief, indeed, lacks a separate statement of facts section
[5] The Supreme Court has already held enforceable a contractual
limitations period that, as in the present case, commenced when
proof of disability was due, instead of the date of the final
denial letter, explaining that "[a]bsent a controlling statute to
the contrary, a participant and a plan may agree by contract to a
particular limitations period, even one that starts to run before
the cause of action accrues, as long as the period is reasonable."
Heimeshoff v. Hartford Life & Accident Ins. Co.,
[7] At oral argument, counsel for MetLife argued we could not directly address the argument that it had violated section 2560.503-1(g)(1)(iv) because the only question Santana-Díaz had raised on appeal is whether he would be entitled to equitable tolling as a result of the purported violation. But we are unpersuaded by the suggestion that Santana-Díaz has waived the regulatory violation argument here. To the contrary, Santana-Díaz explicitly argued in his brief, as he did before the district court, that MetLife violated section 2560.503-1(g)(1)(iv) when it failed to include the time period for filing suit in its final denial letter. Specifically, he argued: "First, the final notice served by MetLife did not include the statement of the time frame
[8] We note that it could feasibly be argued that section
2560.503-1(g)(1)(iv)'s notice requirement applies only to initial
denial of benefits letters. The regulations contain a later
subsection that governs the "[m]anner and content of notification
of benefit determination on review," 28 C.F.R. § 2560.503-1(j)
(emphasis added), which appears to apply specifically to final
denial letters. That subsection mandates that a "plan's benefit
determination on review" must include, among other things, "a
statement of the claimant's right to bring an action under section
502(a) of the Act," id. § 2560.503-1(j)(4), but makes no express
reference to the requirement to include the time limit for filing
the action. Thus, one could make the argument that plan
administrators are required to include notice of the time limit
for filing suit in the initial denial of benefits letter, only.
Here, the parties make no mention of section 2560.503-1(j)(4) in
their briefs, and treat section 2560.503-1(g)(1)(iv) as applying
to final denial letters, as we did in Ortega Candelaria v.
Orthobiologics LLC,
[11] Furthermore, we see no value in requiring lower courts to
make an individualized factual finding of actual prejudice in cases
involving this particular regulatory violation. Unlike in other
notice defect cases where it might be possible for a plaintiff to
prove actual prejudice, there is no way for a plaintiff to prove
prejudice from a plan administrator's failure to include the
limitations period in the final denial letter, other than by merely
attesting that he would have timely filed had he only received
proper notice. By contrast, in Terry v. Bayer Corp.,
[12] Instead of requiring, as we do, that the plaintiff establish
prejudice, courts in the Third and Sixth Circuits appear to apply
a substantial compliance test in which the courts determine whether
the communications betweеn the administrator and participant, as
a whole, fulfill section 1133's requirements. See, e.g., Wenner
v. Sun Life Assurance Co. of Canada,
[13] As we have already discussed, the Eleventh Circuit also encountered a similar scenario in Wilson v. Standard Insurance Co., 613 F. App'x 841, 843 (11th Cir. 2015) (per curiam), but decided the case on equitable tolling grounds. Because our reading of section 2560.503-1(g)(1)(iv) differs from the Eleventh Circuit's, and because we do not reach the equitable tolling issue here, we do not find much persuasive weight in this unpublished case.
[14] The circuits that have decided this issue appear to
uniformly apply the state statute of limitations for contract
actions. See, e.g., Santino v. Provident Life & Accident Ins.
Co., 276 F.3d 772, 776 (6th Cir. 2001); Wetzel v. Lou Ehlers
Cadillac Grp. Long Term Disability Ins. Program,