                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 97-3650
                                   ___________

Bobbie J. Duchek,                    *
                                     *
       Plaintiff - Appellant,        *
                                     *
       v.                            * Appeal from the United States
                                     * District Court for the
Blue Cross and Blue Shield of        * District of Nebraska.
Nebraska; Health and Management      *
Strategies International, Inc.,      *
                                     *
       Defendants - Appellees.       *
                                ___________

                                Submitted: April 16, 1998
                                    Filed: August 14, 1998
                                  ___________

Before RICHARD S. ARNOLD,* Chief Judge, LOKEN, Circuit Judge, and PRATT,**
      District Judge.
                            ___________

LOKEN, Circuit Judge.




      *
       The Honorable Richard S. Arnold stepped down as Chief Judge at the close of
business on April 17, 1998, succeeded by the Honorable Pasco M. Bowman, II.
      **
         The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
      Bobbie Duchek appeals the district court’s1 grant of summary judgment
dismissing as time-barred his claim for medical benefits under a health insurance policy
issued and administered by Blue Cross and Blue Shield of Nebraska and Health and
Management Strategies, International (collectively, “Blue Cross”). We affirm.

       Duchek received inpatient hospital care for alcoholism from September 27 to
October 24, 1991. He submitted a claim for medical expenses under his wife’s
employee welfare benefit plan (the “Plan”). Blue Cross denied a portion of the claim
as not medically necessary. Duchek filed this damage action in state court in
September 1996. Defendants properly removed because Duchek’s claim is governed
exclusively by ERISA. See 29 U.S.C. § 1132(a)(1)(B); Pilot Life Ins. Co. v. Dedeaux,
481 U.S. 41, 52 (1987). The district court dismissed the claim as time-barred by the
Plan provision requiring that an action challenging a claim denial be filed within “three
(3) years from the date written proof of loss is required.” Duchek appeals, arguing this
provision is unenforceable under the governing Nebraska statutes of limitations.

      Because ERISA has no statute of limitations for actions to recover plan benefits,
we borrow the most analogous state statute of limitations. See Johnson v. State Mut.
Life Assurance Co. of Am., 942 F.2d 1260, 1262-63 (8th Cir. 1991) (en banc). In
Nebraska, that is usually the five-year statute of limitations for breach of written
contracts, Neb. Rev. Stat. § 25-205(1). See Union Pac. R.R. v. Beckham, 138 F.3d
325, 330 (8th Cir.), petition for cert. filed, 66 U.S.L.W. 3783 (U.S. May 27, 1998)
(No. 97-1919); Schroeder v. Phillips Petroleum Co., 970 F.2d 419, 420 (8th Cir. 1992).
Duchek’s suit would presumably be timely under that statute. Blue Cross relies on the
Plan’s shorter contractual limitation. Duchek argues that provision is unenforceable
under the Nebraska insurance statute that bars policy provisions “limiting the time
within which an action may be brought to less than the regular period of time


      1
       The Honorable William G. Cambridge, Chief Judge of the United States District
Court for the District of Nebraska.

                                          -2-
prescribed by the statutes of limitations of this state.” Neb. Rev. Stat. § 44-357,
enforced in Wulf v. Farm Bureau Ins. Co., 205 N.W.2d 640 (Neb. 1973). The district
court concluded, and Blue Cross argues on appeal, that we should not borrow § 44-357
in ERISA cases. Instead, we should apply the general contract law principle that
contractual limitation provisions are enforceable if the limitation period is reasonable.
Two ERISA cases have adopted that general principle, instead of borrowing a state
statute similar to § 44-357. See Doe v. Blue Cross & Blue Shield United, 112 F.3d 869
(7th Cir. 1997); Chilcote v. Blue Cross & Blue Shield United, 841 F. Supp. 877, 880
(E.D. Wis. 1993). Duchek, on the other hand, argues that Doe and Chilcote were
wrongly decided and in any event conflict with the settled law of this Circuit that we
must borrow the most analogous state statute of limitations.

        We conclude that we need not decide the general issue debated by the parties
because they have overlooked a controlling Nebraska statute. The Plan in question is
a group sickness and accident insurance policy governed by Chapter 44 of the Nebraska
Statutes. See Neb. Rev. Stat. § 44-760. An individual sickness and accident policy
must contain a provision prohibiting legal actions “after the expiration of three years
after the time written proof of loss is required to be furnished.” See Neb. Rev. Stat. §
44-710.03(11). A group policy may contain such a contractual limitation period if it is
not “less favorable to the insured than would be permitted” under § 44-710.03(11).
Neb. Rev. Stat. § 44-767. The Plan’s contractual limitation is precisely that authorized
in § 44-710.03(11); therefore, it is expressly permitted by § 44-767. This contractual
limitation is not prohibited by § 44-357 because that statute does not apply if the
contractual limitation is “otherwise prescribed by this chapter,” in other words, by
another section of the Nebraska insurance laws.

        Although the contractual limitation authorized by § 44-767 is permissive, rather
than mandatory, § 44-767 is clearly the most analogous state statute addressing the
limitations issue in this case. See Nikaido v. Centennial Life Ins. Co., 42 F.3d 557, 559
(9th Cir. 1994). Other ERISA courts have routinely enforced contractual limitation

                                          -3-
provisions expressly authorized by state law. See Moore v. Berg Enter., Inc.,           F.
Supp.2d , 1998 WL 208869 at *3 (D. Utah 1998); Ingram v. Travelers Ins. Co., 897
F. Supp. 1160, 1166 (N.D. Ind. 1995), aff’d, 78 F.3d 586 (7th Cir. 1996) (table); Lugo
v. AIG Life Ins. Co., 852 F. Supp. 187, 195 (S.D.N.Y. 1994). It would be anomalous
to characterize this suit as a contract action and then borrow Nebraska’s generic
contract statute of limitations rather than the specific section of the Nebraska insurance
laws permitting the contractual limitation in question. We hold that the Plan’s three-
year limitations provision is valid under the Nebraska insurance statute that we must
borrow as most analogous under ERISA. Therefore, this Plan provision bars Duchek’s
ERISA claim.2 We leave for another day the question whether a contractual limitation
that is contrary to a state statute such as § 44-357 is nonetheless enforceable under
ERISA.

      The judgment of the district court is affirmed.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
         Alternatively, Duchek argues that under Fed. R. Civ. P. 8(c) Blue Cross waived
the affirmative defense of a contractual limitations bar by pleading only that “Plaintiff’s
Petition is barred by the applicable Statute of Limitations.” This contention is
foreclosed by our decision in Financial Timing Publications, Inc. v. Compugraphic
Corp., 893 F.2d 936, 944 n.9 (8th Cir. 1990).

                                           -4-
