                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-10-2000

Todish v CIGNA Corp
Precedential or Non-Precedential:

Docket 98-6089




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Recommended Citation
"Todish v CIGNA Corp" (2000). 2000 Decisions. Paper 53.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/53


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Filed March 10, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-6089

BARBARA A. TODISH
       Appellant

v.

CIGNA CORP.; EASTERN AIRLINES, INC.

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 96-cv-00373)
District Judge: Hon. Joseph A. Greenaway, Jr.

Argued: September 8, 1999

Before: SLOVITER and ROTH Circuit Judges, and POGUE,
Judge United States Court of International Trade*

(Filed: March 10, 2000)



_________________________________________________________________
* Hon. Donald C. Pogue sitting by designation.


       Nadine H. Taub
        (Argued)
       Rutgers University
       Environmental Law Clinic
       Newark, N.J. 07102

         Attorney for Appellant

       John J. Fannan
        (Argued)
       Karosen & Grabler
       Roseland, N.J. 07068

         Attorney for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Plaintiff Barbara A. Todish appeals from the District
Court's order granting summary judgment on statute of
limitation grounds to defendant CIGNA Corporation 1 in her
suit for long-term disability insurance benefits. Todish's
principal argument on appeal is that the District Court
erred in granting summary judgment because she
presented sufficient facts from which a reasonable fact
finder could infer that she was "insane" within the meaning
of New Jersey Statute 2A:14-21, which permits tolling of
the statute of limitations.

I.

The underlying facts in this case are largely undisputed.
Todish began working as a flight attendant for Eastern
Airlines in 1968. In 1978 she enrolled in the long-term
disability insurance policy offered by CIGNA through the
airline. On April 24, 1981, Todish went on medical leave.
She remained on leave for four years, until April 23, 1985,
_________________________________________________________________

1. Defendant filed its answer as Connecticut General Life Insurance
Company "improperly pleaded as CIGNA," and thereafter referred to itself
as CGLIC. Because the District Court's order refers to it as CIGNA, we
will do the same.

                               2


when Eastern Airlines terminated her employment
pursuant to the collective bargaining agreement providing
for a maximum four-year period of medical leave.

Todish initially received short-term disability benefits for
six months. Ultimately, she received long-term disability
benefits from CIGNA of two additional sums totaling
approximately $21,800, which covered the remainder of the
period of her leave from Eastern Airlines until September
30, 1984. CIGNA included with the final payment a letter,
dated October 17, 1984, which stated in relevant part:

       As I indicated in my October 4 letter, if you wish to
       claim benefits beyond September 1984, then you
       should understand that it is your responsibility to
       furnish medical proof to support the fact that you are
       totally disabled from engaging in any form of gainful
       employment beyond September 30, 1984.

       Again, I am enclosing a form which explains your
       rights under the Employee Retirement Income Security
       Act to request a review of your claim.

Appellant's App. at 57 (emphasis in original). Todish did not
furnish medical proof of her disability or contact CIGNA
until October 12, 1995, eleven years later, when she wrote
to CIGNA requesting a reopening of her claim for long-term
disability benefits. By letter dated October 18, 1995, CIGNA
informed Todish that it was denying her request because of
the extended length of time between its denial of continued
benefits in 1984 and her request to reopen in 1995. CIGNA
also stated that Todish's file had been destroyed at some
point during the eleven-year period.

Todish's original applications for Social Security disability
benefits, filed in 1983 and 1985, were rejected. When she
was hospitalized in 1990 after an automobile accident, a
hospital employee recommended that she reapply for Social
Security disability based on the mental trauma associated
with the accident. She did, requesting benefits from the
date of the accident and alleging that she suffered from bi-
polar disorder since that date. When her claim was denied,
she requested reconsideration of the denial and retained an
attorney on a contingency basis for the appeal. In 1993 an
administrative law judge determined that Todish had been

                               3


disabled since the 1990 accident, and she was held entitled
to receive Social Security benefits retroactive to that date.

Todish alleges that she was sent a notice from the Social
Security Administration that she might also be eligible to
receive a disability pension from the pension program
maintained by her former employer, which by then was in
Chapter 11 proceedings. Todish applied for such a
disability pension, and in June 1995 the Appeals Board of
the Pension Benefit Guaranty Corporation determined that
Todish was entitled to disability pension benefits from the
Eastern Airlines plan retroactive to April 23, 1985, the date
on which her employment was terminated. Pursuant to that
decision, Todish received $10,943.75 from the Eastern
Airlines Inc. Retirement Income Plan for Flight Attendants.

As noted above, CIGNA denied Todish's 1995 request to
reopen her claim for long-term disability insurance benefits
by letter dated October 18, 1995. Todish commenced this
action against CIGNA and Eastern Airlines2 on December 7,
1995, alleging, inter alia, breach of contract and seeking to
recover at least $5,718.16 in long-term disability benefits
for the period from the last payment on September 30,
1984 to her termination on April 24, 1985.3 She also
alleged that she was entitled to additional payments
through October 1995 based on language in the insurance
policy. CIGNA moved for summary judgment, asserting that
the action was barred by the statute of limitations and the
equitable doctrine of laches. The District Court granted the
motion on the statute of limitations ground. Todish timely
appealed.)

II.
We exercise plenary review over the District Court's grant
of summary judgment. Armbruster v. Unisys Corp. , 32 F.3d
768, 777 (3d Cir. 1994). Summary judgment should be
granted where "there is no genuine issue as to any material
_________________________________________________________________

2. On May 29, 1996, the parties signed a stipulation dismissing Eastern
Airlines from the suit.

3. Todish included a claim under ERISA in her handwritten complaint,
but the case proceeded under a breach of contract theory.

                                 4


fact" and "the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). In making this
determination, we view the facts in the light most favorable
to the nonmoving party and draw all inferences in that
party's favor. See Armbruster, 32 F.3d at 777. Even viewing
the evidence in the light most favorable to the non-moving
party, however, the dispute of material fact must be
"genuine" such that "a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

III.

The parties agree that the New Jersey six-year statute of
limitations for breach of contract claims applies to Todish's
case, and admittedly Todish took no action in response to
CIGNA's letter within six years of its receipt. Todish argues,
however, that the statute of limitations should be tolled to
place her filing within the six-year period because she was
"insane" within the meaning of New Jersey Statute 2A:14-
21.

New Jersey Statute 2A:14-21 reads in pertinent part:

       If any person entitled to any of the actions or
       proceedings specified in sections 2A:14-1 to 2A14-8
       . . . of this title is or shall be, at the time of any such
       cause of action or right or title accruing, . . . insane,
       such person may commence such action or make such
       entry, within such time as limited by said sections,
       after his coming to or being of . . . sane mind.

N.J. Stat. Ann. S 2A:14-21.

The New Jersey courts   have held that to be "insane"
within the meaning of   the statute, a plaintiff need not suffer
from a mental illness   that requires commitment or
institutionalization.   Sobin v. M. Frisch & Sons , 108 N.J.
Super. 99, 103-04, 260 A.2d 228, 231 (N.J. Super. Ct. App.
Div. 1969). Nonetheless, the plaintiff must suffer from
"such a condition of mental derangement as actually
prevents the sufferer from understanding his legal rights or
instituting legal action." Kyle v. Green Acres at Verona, Inc.,
44 N.J. 100, 113, 207 A.2d 513, 521 (N.J. Sup. Ct. 1965);

                               5


see also Sobin, 108 N.J. Super. at 104, 260 A.2d at 231
(stating that the aim of the tolling statute is"to relieve from
the strict time restrictions any person who actually lacks
the ability and capacity, due to mental affliction, to pursue
his lawful rights.").

There is no question that Todish has a history of mental
difficulties. According to her testimony in her affidavit, from
1981 to 1985 she was constantly under treatment by
psychiatrists. She was hospitalized for mental health
reasons in 1980 and 1981, and during the period from
1981 to 1992 she was periodically homeless, occasionally
suicidal, and held numerous and various jobs for short
intervals.

However, even drawing all inferences in Todish's favor as
we are required to do on a motion for summary judgment,
we conclude that a fact finder could not reasonably infer
from the evidence presented that Todish's mental
impairments prevented her from understanding her legal
rights or instituting legal action during the six-year statute
of limitations period. We base that conclusion on the
actions that her own affidavit reveals that she was able to
take. For example, in 1986 she attempted to hire legal
counsel to represent her at a grievance hearing in
connection with her termination at Eastern Airlines. She
also tried to obtain a transcript of that hearing on two
occasions and requested information from the union
representative at the hearing about taking an appeal if the
result were unfavorable. She applied for Social Security
benefits in 1983, 1985, and again in 1990. When her 1990
claim was denied, she sought reconsideration of the denial
and retained counsel on a contingency basis to represent
her on appeal. In early 1990 she applied for and was
accepted to law school.4 And, beginning in 1990, she also
applied for disability pension benefits from Eastern Airlines,
persisted in that endeavor and ultimately prevailed. In
_________________________________________________________________

4. Although she subsequently failed out of law school, having passed
only one course in the first semester, her ability to go through the
application process illustrates a degree of mental awareness that
undermines her assertion that her mental difficulties rendered her
unable to understand her legal rights or to institute legal action.
                               6


addition to Todish's affidavit, evidence submitted by the
parties at summary judgment also reveals that between
1987 and 1991, Todish worked as a teacher in three
community colleges and that some time after 1987 she
completed all of the requirements for a Master's of Arts
degree in Liberal Studies, except the thesis. These actions
demonstrate that despite Todish's mental impairments, she
retained an ability to understand her legal rights and to
institute legal action within the six-year statutory period.

Todish asserts that the District Court erred in granting
summary judgment because her "lengthy (handwritten)
affidavit supporting her complaint shows she understood
little about the legal points of her case." Appellant's brief at
14. This assertion reflects a misunderstanding of the
applicable test for insanity under the tolling statute.
Whether Todish understood the legal points of her case, or
even knew how or when to file a civil claim against CIGNA,
does not determine whether she was insane for tolling
purposes. See Kyle, 44 N.J. at 113, 207 A.2d at 521
(articulating test for insanity as "such a condition of mental
derangement as actually prevents the sufferer from
understanding his legal rights or instituting legal action").
Rather, the lack of understanding that would render her
"insane" must have derived from her mental illness and
placed her at a level of understanding below that of the
usual plaintiff, of whom we require diligence in discovering
the legal wrong. See Tevis v. Tevis, 79 N.J. 422, 433, 400
A.2d 1189, 1195 (N.J. Sup. Ct. 1979) (holding that statute
of limitations was not tolled under the insanity provision
where plaintiff had "apparently suffered substantial injuries
but she was not incapacitated or prevented by her physical
or mental trauma from pursuing her legal rights"); cf. New
Castle County v. Halliburton Nus Corp., 111 F.3d 1116,
1124 (3d Cir. 1997) ("[A] claim accrues upon awareness of
actual injury, not upon awareness that the injury
constitutes a legal wrong.").

As we explained above, Todish's actions, including her
attempt to find legal counsel for her grievance hearing with
Eastern Airlines, her attempts to obtain a transcript of that
hearing, her filing multiple times for Social Security
benefits, her request for reconsideration of the Social

                               7


Security denial, and her hiring of an attorney on a
contingency fee basis to represent her on appeal of the
Social Security denial, demonstrate that her mental
impairments did not prevent her from understanding her
legal rights or from instituting legal action, and Todish
accordingly does not meet the test for insanity under the
tolling provision.

Todish also argues that because she was found mentally
disabled by the Social Security Administration for purposes
of Social Security benefits, she was necessarily"insane"
within the meaning of the New Jersey statue. See
Appellant's brief at 17. Again, this simply is not so. Under
the Social Security Act, an individual is considered disabled
if she is unable "to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected
to last for a continuous period of not less than 12 months."
42 U.S.C. S 423(d)(1)(A). There is no doubt that Todish had
difficulty holding a steady job due to her mental
impairments, but the mere fact that she was unable to
engage in substantial gainful activity does not create a
genuine issue of material fact concerning her ability to
understand and pursue her legal rights.

In the alternative, Todish argues that under Bowler v.
Fidelity & Casualty Co. of New York, 53 N.J. 313, 250 A.2d
580 (N.J. Sup. Ct. 1969), she should be permitted to
pursue her case despite the running of the statute of
limitations. In Bowler, the New Jersey Supreme Court held
that a defendant insurance company was equitably
estopped from relying on the statute of limitations where
the insurance company had ceased payment of benefits,
which it knew to be covered by the insured's policy, without
notifying the insured or requesting additional medical proof
for further coverage. See Bowler, 53 N.J. at 329-30, 250
A.2d at 589. The plaintiff in Bowler was the holder of an
accident insurance policy. His policy provided for 200
consecutive weeks of payment in the event of total
disability. If, after the 200 weeks, he was permanently and
totally disabled, the insurance company was obligated to
make 600 additional weeks of payments. Bowler suffered a
severe leg bone fracture in an accidental fall. The fracture

                                8


resulted in a bone infection that rotted away part of his
bone, creating pus that drained from an ulcer in the outer
surface of his leg.

The defendant insurance company paid Bowler his
weekly disability benefits, with periodic confirmation by
Bowler's physician, for 199 of the initial 200 weeks. After
the 199th payment, however, despite "a clear case of duty
to pay the 200th-week benefit" and without any explanation
or request for further evidence of disability from Bowler, the
insurance company abruptly ceased payment. Bowler, 53
N.J. at 329, 250 A.2d at 589. The New Jersey Supreme
Court held that the insurance company's conduct,
apparently stemming from a fear that it would be obligated
to pay the additional 600 weeks if it were to pay the 200th
week, was "so inequitable and unconscionable as to bar
reliance upon the statutory limitation on the institute of
suit on the policy." Bowler, 53 N.J. at 330, 250 A.2d at
589.

In contrast to Bowler, Todish does not allege, nor do we
find any evidence of, unconscionable conduct on the part of
CIGNA in this case. Todish does not claim that CIGNA
defrauded her or that she relied on any misleading or
deceitful misrepresentation made by CIGNA. Instead, the
undisputed facts evince that CIGNA advised Todish in
writing that if she wished to claim benefits beyond
September 1984, she was required to furnish medical proof
of her continued total disability. Further, CIGNA provided
Todish with a form that explained her right to request a
review of the denial under ERISA. Therefore, even if, as
Todish asserts, she would have been entitled to payment
had she furnished the required medical proof, CIGNA is not
equitably estopped from relying on the statute of limitations
in this case. See Tevis, 79 N.J. at 433, 40 A.2d at 1196
(holding that even though a husband's conduct in battering
his wife was "grotesque and inexcusable," the husband was
not equitably estopped from relying on the statute of
limitations in defense of his wife's civil claim, absent
evidence that he deceived or defrauded his wife into
forestalling the filing of her suit).

As articulated by the New Jersey courts, the statute of
limitations serves several goals, including "the security and

                               9


stability of human affairs created by eventual repose . . .
[and] the prospective defendants' ability to respond to
allegations made against them." Jones v. Jones, 242 N.J.
Super. 195, 203, 576 A.2d 316, 320 (N.J. Super. Ct. App.
Div. 1990) (citations omitted); see Galligan v. Westfield
Centre Serv., Inc., 82 N.J. 188, 191-92, 412 A.2d 122, 124
(N.J. Sup. Ct. 1980). These goals are best served in this
instance by adherence to the six-year limitations period.

IV.

For the reasons stated, we agree with the District Court
that the evidence presented at summary judgment
demonstrates that "Todish was not so immobilized by her
mental illness that a tolling of the statute of limitations
should occur." Todish v. CIGNA Corp., No. 96-373, slip op.
at 6 (D.N.J. May 6, 1998). Accordingly, we will affirm the
order of the District Court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                10
