                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                              Argued June 13, 2007
                              Decided June 26, 2007


                                     Before

                   Hon. JOHN L. COFFEY, Circuit Judge

                   Hon. JOEL M. FLAUM, Circuit Judge

                   Hon. ANN CLAIRE WILLIAMS, Circuit Judge


No. 06-3609

GARY ZAMECNIK,                                Appeal from the United States
    Plaintiff-Appellant,                      District Court for the Northern
                                              District of Illinois, Eastern Division.
      v.
                                              No. 03 C 2664
ABBCO, INC. ERISA PLAN, et al.,
    Defendants-Appellees.                     David H. Coar,
                                              Judge.

                                   ORDER

       Gary Zamecnik worked as a sales manager for Abbco, Inc., until September
1999 when purportedly he became disabled. At Abbco he was covered by a long-
term disability plan of insurance underwritten and administered by Continental
Casualty Company. Sixteen months after he stopped working, he filed a claim for
disability benefits with Continental, which was denied. Zamecnik then turned to
the district court and filed suit under the Employee Retirement Income Security Act
of 1974. See 29 U.S.C. § 1132(a)(1)(B). The district court entered summary
judgment against Zamecnik, and he now appeals. Because Zamecnik failed to
provide timely notice of his disability claim, we affirm.
No. 06-3609                                                                    Page 2

                                    Background

       In January 2001 Zamecnik filed a claim with Continental for benefits,
asserting that he was disabled due to “rheumatoid arthritis—joint
surgery—accident motor veh. 6-3-00.” In this claim he explained that he stopped
working at Abbco on September 7, 1999, which, according to the terms of the
disability insurance plan, resulted in the termination of his coverage as of that date
because he no longer was an active employee working at least 30 hours per week.
However, under the plan Continental remained liable for losses that began before
the date coverage ended, and according to two fill-in-the-blank forms completed by
Zamecnik’s rheumatologist, he had been disabled as of September 7, 1999.

       To review his claim, Continental requested medical records from Zamecnik’s
doctors, including his rheumatologist. These records show that in 1996 Zamecnik
was diagnosed with seronegative spondyloarthropathy, a group of inflammatory
joint diseases similar to rheumatoid arthritis. The records document that on
September 2, 1999, Zamecnik called his rheumatologist and left a message that he
was having an emergency due to pain in his right arm and elbow. However,
Zamecnik did not visit his rheumatologist until November 1999, at which time the
doctor noted that he was “doing fairly well lately,” an observation he repeated in a
letter written two months later.

      Records requested by Continental also show that on September 20, 1999,
Zamecnik visited a podiatrist who noted that Zamecnik reportedly was experiencing
“excruciating” foot pain and injected him with pain killers. But just ten days later,
the podiatrist noted that Zamecnik was much improved. In December 1999
Zamecnik underwent a bunionectomy to treat his foot. By April 2000 his podiatrist
noted that Zamecnik was “asymptomatic . . . happy and pain free.” Despite the
success of the surgery, Zamecnik did not return to Abbco.

       Two months later Zamecnik was in a serious motor-vehicle accident that
resulted in a ruptured spleen and multiple rib fractures. After this accident
Zamecnik visited his rheumatologist twice complaining of constant pain under his
rib cage and flank. In October 2000 Zamecnik’s rhuematologist wrote a letter “To
Whom it May Concern” explaining that, based on these examinations, Zamecnik
was disabled.

      In May 2001, after reviewing these records, Continental denied Zamecnik’s
request for disability benefits, noting that the medical evidence did not demonstrate
that he was disabled before he stopped working and his coverage ended in
September 1999. Zamecnik then provided Continental with additional evidence and
requested reconsideration of his claim. This evidence included a July 2001 letter
from Zamecnik’s rheumatologist, addressed to Zamecnik’s attorney, stating that he
No. 06-3609                                                                     Page 3

became disabled due to his joint disease “in the latter months of 1999.” Continental
concluded that the additional information did not alter its original decision.
Zamecnik’s claim was then reviewed by Continental’s Appeals Committee, which
upheld the denial of his claim. In this decision Continental noted that the
insurance plan required Zamecnik to provide it with written notice of his claim
“within 30 days after the loss begins or as soon as reasonably possible.” Because
Zamecnik, without explanation, did not file his claim until 16 months after his
disability purportedly began, Continental concluded that he did not timely file it.
After his appeal was denied, Zamecnik wrote again to Continental, noting that the
Social Security Administration had decided he was disabled as of December 1999
and was eligible for disability benefits. Responding that it was not bound by the
Social Security Administration’s finding, Continental again affirmed its decision to
deny benefits.

      Zamecnik then sued under ERISA to recover disability payments. See 29
U.S.C. § 1132(a)(1)(B). The parties agreed that the district court should review
Continental’s denial of benefits de novo and that the evidence should consist only of
Continental’s administrative claim file. The parties filed cross motions for
summary judgment. Continental1 argued both that Zamecnik was not disabled
when he ceased active employment in September 1999, and that even if he was
disabled he did not timely file a claim for benefits. The district court ruled against
Zamecnik. Without commenting on the timeliness of Zamecnik’s claim for benefits,
the court reasoned that “there is simply no credible proof that he was totally
disabled at the time he stopped working.”

                                     Discussion

       Zamecnik challenges the adverse ruling at summary judgment. The scope of
the district court’s review of Continental’s ruling on Zamecnik’s claim is governed
by the ERISA plan itself—“[a]bsent clear language to the contrary, plans are read to
provide for searching judicial review of benefits determinations.” Patton v.
MFS/Sun Life Fin. Distrib., Inc., 480 F.3d 478, 485 (7th Cir. 2007). Here, the
parties agree that the district court appropriately reviewed Continental’s denial of


      1
         Continental apparently was named as a defendant because it is the
administrator of Abbco’s ERISA Plan, although the parties do not say so explicitly.
Zamecnik also named Abbco and Abbco’s ERISA Plan as defendants, and they filed a
parallel motion for summary judgment. Because Abbco is neither the Plan nor the
Plan Administrator, it cannot be held liable under ERISA, and therefore is not a proper
party to this lawsuit. See Garratt v. Knowles, 245 F.3d 941, 949 (7th Cir. 2001); Jass
v. Prudential Health Care Plan, Inc., 88 F.3d 1482, 1490 (7th Cir. 1996). For
simplicity, this order refers only to Continental.
No. 06-3609                                                                    Page 4

disability payments de novo. In turn, we review the district court’s grant of
summary judgment de novo, drawing all reasonable inferences in Zamecnik’s favor.
See Sperandeo v. Lorillard Tobacco Co., Inc., 460 F.3d 866, 870 (7th Cir. 2006).
Ordinary principles of contract interpretation govern the interpretation of
Continental’s disability plan. See Herzberger v. Standard Ins. Co., 205 F.3d 327,
330 (7th Cir. 2000); Mathews v. Sears Pension Plan, 144 F.3d 461, 465 (7th Cir.
1998).

      Continental has renewed its argument that it properly denied Zamecnik
benefits since he did not timely file his claim. The plan requires that the insured
provide written notice of a claim for disability benefits “within 30 days after loss
begins or as soon as reasonably possible,” but Zamecnik waited 16 months.
Although the district court did not address this argument, this court may affirm a
grant of summary judgment on any basis fairly supported by the record. See Hill v.
Am. Gen. Fin., Inc., 218 F.3d 639, 642 (7th Cir. 2000).

        Zamecnik has never explained this delay in filing his claim. He ignored the
point when he responded to Continental’s motion for summary judgment, and
during oral argument before us his counsel admitted that “there isn’t anything in
the record that explains it.” It was up to Zamecnik to show that he timely filed his
claim, and because he cannot point to anything in the record to justify his 16-month
delay, the district court did not err in entering summary against him. Morever, we
can discern nothing that would have excused a delay of this length if Zamecnik
really did become disabled before he ceased working in September 1999. Even his
multiple health problems cannot account for this long delay. Zamecnik’s podiatrist
noted that he was in excruciating pain in September 1999, which may have delayed
his filing, but according to the podiatrist Zamecnik was much improved by the end
of that month. We see no reason why he could not have filed his claim between the
end of September 1999, and his bunionectomy in December 1999. Even Zamecnik’s
rheumatologist noted that he was “doing fairly well” in November 1999. Similarly,
while Zamecnik’s December bunionectomy could have briefly prevented him from
filing a claim, it does not explain why he failed to file the claim after he was fully
healed in April 2000. Zamecnik’s June 2000 accident and subsequent
hospitalization may have forestalled his filing, but it does not excuse his failure to
file a claim before then.

      We need not address Zamecnik’s contention that he became disabled while
covered by the disability plan. He admits that nothing in the record explains the
16-month delay in filing his claim for benefits, therefore his claim was properly
denied. Accordingly, we AFFIRM the judgment of the district court.
