                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-2531

A LBERT G. A BENA, D.D.S.,
                                              Plaintiff-Appellant,
                               v.

M ETROPOLITAN L IFE INSURANCE
C OMPANY and A MERICAN D ENTAL
P ARTNERS, INCORPORATED ,
                                           Defendants-Appellees.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
          No. 06 C 495—Rudolph T. Randa, Chief Judge.



  A RGUED JANUARY 23, 2008—D ECIDED S EPTEMBER 16, 2008




Before M ANION, R OVNER and E VANS, Circuit Judges.
  R OVNER, Circuit Judge. Albert G. Abena worked as a
dentist for American Dental Partners, Inc. (“American
Dental”) from 1993 until he became disabled in 2000. He
applied for long term disability benefits under a plan
sponsored by his employer and administered by Metro-
2                                                 No. 07-2531

politan Life Insurance Co. (“MetLife”), which was also
the plan fiduciary. MetLife initially approved the claim
and paid Abena benefits under the plan for approximately
two years. After learning that Abena was employed at a
new job, MetLife re-evaluated his disability status and
determined that he no longer was disabled under the
plan’s definition. MetLife terminated Abena’s benefits as
of the date the company determined he no longer was
disabled. After pursuing internal remedies to challenge
the termination, Abena filed suit in the district court in
2006. The district court concluded that the suit was not
timely filed and granted summary judgment in favor of
the defendants. Abena appeals and we affirm.
   American Dental sponsored a Long Term Disability
Benefits Plan (“Plan”) for eligible employees. Under the
Plan, employees who became disabled were paid benefits
following an “Elimination Period” which began on the
day the employee became disabled and ended after
ninety continuous days of disability. An employee
wishing to claim benefits was required to supply a “proof
of Disability” within three months after the end of the
Elimination Period.1 The employees were thus required to
file the proof of Disability within three months plus
ninety days of the onset of the Disability, or within ap-
proximately six months. The Plan also provided limita-
tions for legal actions related to the Plan:
      No legal action of any kind may be filed against us:




1
    “Disability” is a defined term in the Plan.
No. 07-2531                                                3

    1.   within the 60 days after proof of Disability has
         been given; or
    2.   more than three years after proof of Disability must
         be filed. This will not apply if the law in the area
         where you live allows a longer period of time to
         file proof of Disability.
R. 24, at D 0319.
   Abena worked for American Dental from 1993 through
December 4, 2000. On October 23, 2000, Abena submitted
a claim to American Dental for long term disability bene-
fits, asserting that his disability commenced on May 16,
2000. American Dental forwarded the claim to its Plan
administrator and fiduciary, MetLife, on November 8, 2000.
On March 1, 2001, after reviewing the claim, MetLife
approved Abena’s claim and granted benefits retroactive
to August 15, 2000, the end of the Elimination Period. At
some point, American Dental learned that Abena was
again working as a dentist. The company passed this
information on to MetLife, and on January 15, 2002,
MetLife informed Abena that it intended to review his
continued eligibility for benefits. MetLife requested that
Abena supply additional information about his disability
and also conducted an investigation into Abena’s health
status, which included video surveillance and a review of
his records by an independent physician. After the review
process, MetLife notified Abena on August 8, 2002 that he
no longer met the Plan’s definition of Disability. Abena’s
benefits were therefore terminated as of August 9, 2002. On
January 14, 2003, Abena appealed MetLife’s decision
through an internal appeals process. MetLife ordered
4                                               No. 07-2531

another independent physician review of Abena’s file, and
on April 16, 2003 affirmed its decision to terminate his
benefits.
  On April 17, 2006, Abena filed this ERISA suit against
American Dental and MetLife, claiming entitlement to
disability benefits after the August 9, 2002 termination
date. The defendants moved for summary judgment on
two grounds. First, they asserted that the decision to
terminate benefits was not arbitrary or capricious but
rather was a reasonable determination supported by
substantial evidence in the administrative record. Second,
they argued that Abena failed to file the law suit within
the time limitation prescribed by the Plan. The district
court granted summary judgment in favor of the defen-
dants, agreeing that the suit was untimely. The court did
not reach the merits of the dispute. Abena appeals.
  The district court relied on our decision in Doe v. Blue
Cross Blue Shield United of Wisconsin, 112 F.3d 869 (7th Cir.
1997), in finding the suit untimely. In Doe, the plaintiff
sought treatment for obsessive compulsive disorder in
1989. His employer-sponsored health insurance plan
initially paid for his psychiatric treatment but later
stopped paying and formally denied coverage. On
August 17, 1990, Blue Cross, the plan administrator,
notified Doe that it would not pay for any psychiatric
treatment rendered after December 1, 1989. On Septem-
ber 27, 1994, after completing an internal appeals process,
Doe sued to recover benefits for treatment provided to
him between December 1989 and May 31, 1991. As with
the Plan in Abena’s action, Doe’s plan limited the time-
No. 07-2531                                                      5

frame in which suits could be filed. Doe’s plan provided
that “no legal action may be commenced . . . later than
three (3) years from the time written proof of loss was
required to be filed. Written proof of loss must be filed
within ninety (90) days of the date of service. This means
that any legal action must be commenced within thirty-
nine (39) months of the first date of services on which the
action is based.” Doe, 112 F.3d at 872-73. The district court
read this provision to mean that, for Doe to recover all of
the benefits he was seeking, he was required to sue by
March 1993, thirty-nine months after the December 1989
psychiatric services he received. The court also con-
cluded that the last day on which he could sue for any
benefits was August 29, 1994, a date that fell thirty-
nine months after May 31, 1991, the final date on which
services were rendered. Another provision in Doe’s plan
prohibited suits from being filed until the exhaustion of
the claimant’s internal remedies. For Doe, that process
lasted until September 25, 1991, leaving seventeen
months left in the contractual limitations period before
the March 1993 cut-off date to sue for full benefits.2



2
  Abena misconstrues the plan in Doe, arguing that the period
of limitations there did not begin to run until continuing
benefits had been denied, not when the initial proof of claim
had to be filed. On the contrary, the period of limitations in
Doe’s plan was triggered by the provision of services for
which benefits were sought. A claimant was required to file a
written proof of loss within ninety days of the date of the
service, and was required to file suit within three years after the
                                                     (continued...)
6                                                   No. 07-2531

  We observed that ERISA contains no statute of limita-
tions, and that the usual practice in that instance is to
borrow the limitations period of the most closely
analogous state or federal statute. We also noted the
prevailing rule in contract law that contractual limitations
periods that are shorter than the statutory period are
permissible, provided they are reasonable. Doe, 112 F.3d at
874. We adopted that prevailing rule and held that contrac-
tual limitations, if reasonable, are enforceable in suits
under ERISA, regardless of state law. 112 F.3d at 875. We
deemed the thirty-nine month period reasonable in
general and under the circumstances of Doe’s case. Even
though the internal appeals process was protracted, the
employee, who was represented by counsel throughout
the process, still had seventeen months in which to
bring the suit before the period expired. We likened a suit
under ERISA, following the completion of an internal
appeals process, to a suit to set aside an administrative
decision, an action that typically must be filed within
thirty or sixty days of the decision. 112 F.3d at 875. A
seventeen month period was therefore more than suf-



2
  (...continued)
written proof of loss was required to be filed. See Doe, 112 F.3d
at 872-73. Obviously, if benefits were granted for certain
services, there would be no reason to file suit, and when
benefits were denied, the limitations period ran from ninety
days after the time proof of loss was required to be filed for
that particular service. There is no real difference between
the operation of the plan in Doe and the Plan under which
Abena sought benefits.
No. 07-2531                                                  7

ficient to meet the standard of reasonableness. We also
remarked that the doctrine of equitable estoppel would
protect ERISA claimants and would discourage plan
administrators from dragging on the internal appeals
process in order to shorten the time left for filing suit. Doe,
112 F.3d at 876.
   Applying Doe to Abena’s situation, the district court
found that the Plan required a participant to file suit no
later than three years from the time proof of Disability was
required to be filed. The Plan, in turn, required that proof
of Disability must be filed no later than three months
after the Elimination Period. The Elimination Period is the
ninety days of continuous Disability following the onset
of the Disability. The district court calculated that Abena’s
Elimination Period ended on August 15, 2000. He was
required to submit his proof of Disability by November 15,
2000, and should have filed any law suit by November 15,
2003. Because Abena did not file the suit until April 17,
2006, the suit was not timely. The court noted that MetLife
did not complete the internal appeals process until
April 16, 2003, but Abena still had seven months in which
to file suit before the November 15, 2003 contractual
deadline. Under Doe, the district court reasoned that seven
months was a reasonable amount of time in which to
file the suit, and granted summary judgment in favor of
the defendants.
  Our review of that judgment is de novo. Darst v. Interstate
Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). Abena
argues that Doe is factually distinguishable and not con-
trolling in his case. Abena points out that his claim
8                                                  No. 07-2531

initially was approved and he was paid for two years
before the Plan administrator decided to terminate bene-
fits. In that circumstance, Abena argues, a three-year
limitations period is unreasonable. After all, Abena points
out, a plan could pay benefits for three years and then
stop paying without any recourse for the employee. Abena
also points out that the contractual period of limitations
appears in a section titled “Claims” and contends that it
should apply only to the initial claim decision and not to
subsequent terminations of claims. Instead, he maintains,
the Wisconsin statute of limitations for contract claims
should apply. Because the Wisconsin statute provides
for a six-year period, he argues that his suit was timely.
  It is true that the manner in which the Plan sets the
limitations period is better suited to the initial claim
decision than it is to claims that are initially granted and
subsequently terminated, but that fact is not controlling.
A poorly drafted contract term is still a contract term.
This contract term allows three years from the time the
proof of Disability must be submitted in which to file
suit. Under Doe, a contractual limitations period is en-
forceable in an ERISA action so long as it is reasonable. 112
F.3d at 874-75. See also White v. Sun Life Assurance Co. of
Can., 488 F.3d 240, 250 (4th Cir.), cert. denied, 128 S. Ct. 619
(2007) (agreeing with Doe that ERISA affords plans the
flexibility to set contractual limitations periods of varying
lengths); Wilkins v. Hartford Life & Accident Ins. Co., 299
F.3d 945, 948 (8th Cir. 2002) (upholding a contractual
limitations period in an ERISA plan so long as it is not
unreasonably short); Northlake Reg’l Med. Ctr. v. Waffle
House Sys. Employee Benefit Plan, 160 F.3d 1301, 1303 (11th
No. 07-2531                                                   9

Cir. 1998) (agreeing with Doe that contractual limitations
periods in ERISA actions are enforceable, regardless of
state law, provided they are reasonable). We can certainly
imagine circumstances in which the application of this
provision would not be reasonable. For example, if the
employer paid the claim for three or more years and then
terminated payments, it would be unreasonable to
enforce a limitations period that ended before the claim
could have even accrued. Or if the appeals process was
so protracted that the claimant was unable to file suit
within the contractual period, the application of this
provision would not be reasonable. But that is not what
happened here. Even though the claim initially was
granted and then terminated two years later, Abena still
had seven months following the conclusion of the internal
appeals process in which to file his suit in the district court.
By his own admission at oral argument, there was no
reason he could not file his suit during that time. Indeed,
he was represented by counsel during that time. In
these circumstances, application of the contractual lim-
itations period is not unreasonable.
  Nor are we persuaded that the placement of the con-
tractual limitations period in a section titled “Claims”
should change the outcome. The provision clearly states
that “[n]o legal action of any kind may be filed against” the
Plan after the limitations period. This language is broad
enough to cover both initial denials of claims and claims
that initially are granted and then later are terminated.
Again, the Plan language is not particularly well suited to
claims which are initially granted and then later termi-
nated. A limitations period that begins when the
10                                              No. 07-2531

internal appeals process ends would be easier to apply
to all kinds of claims, but we are not here to rewrite the
Plan. Our task is to determine whether application of the
contractual limitations period is reasonable in these
circumstances. We agree with the district court’s conclu-
sion that it is. The judgment of the district court is there-
fore
                                                  A FFIRMED.




                           9-16-08
