         12-651-cv
         Heimeshoff v. Hartford Life & Accident Ins. Co., WalMart Stores, Inc.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of September, two thousand and
 5       twelve.
 6
 7       PRESENT: BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges,
10                JOHN GLEESON,
11                         District Judge.*
12
13
14
15       JULIE HEIMESHOFF,
16
17                                     Plaintiff-Appellant,
18
19                      -v.-                                                12-651-cv
20
21       HARTFORD LIFE & ACCIDENT INSURANCE CO.,
22       CONNECTICUT CORPORATION, WALMART STORES,
23       INC., ARKANSAS CORPORATION AND PLAN
24       SPONSOR OF THE GROUP LONG TERM DISABILITY
25       PLAN FOR EMPLOYEES OF WALMART STORES, INC.,
26
27                                     Defendants-Appellees.
28
29

                *
                The Honorable John Gleeson, of the United States District
         Court for the Eastern District of New York, sitting by
         designation.
 1   FOR APPELLANT:    STEVEN P. KRAFCHICK, Krafchick Law Firm
 2                     PLLC, Seattle, WA.
 3
 4   FOR APPELLEES:    PATRICK W. BEGOS, Begos Horgan & Brown
 5                     LLP, Southport, CT.
 6
 7
 8        Appeal from the United States District Court for the
 9   District of Connecticut (Arterton, J.).
10
11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the judgment of the United States District

13   Court for the District of Connecticut is AFFIRMED.

14       Julie Heimeshoff appeals from a judgment of the United

15   States District Court for the District of Connecticut

16   (Arterton, J.), granting Appellees’ motion to dismiss

17   Appellant’s 29 U.S.C. § 1132(a)(1)(B) action challenging

18   Hartford Life & Accident Insurance Company’s (“Hartford”)

19   denial of long-term disability benefits under ERISA.     The

20   district court dismissed Appellant’s claim as untimely

21   because Appellant filed her action outside of the policy-

22   prescribed three-year statute of limitations period.     We

23   assume the parties’ familiarity with the underlying facts,

24   the procedural history, and the issues presented for review.

25       This Court reviews de novo a district court’s grant of

26   a motion to dismiss.    See Guilbert v. Gardner, 480 F.3d 140,

27   145 (2d Cir. 2007).    Section 1132 creates a cause of action


                                    2
1    for beneficiaries of an ERISA plan to “recover benefits . .

2    . to enforce [] rights . . . or to clarify [] rights to

3    future benefits under the terms of the plan.”   29 U.S.C. §

4    1132(a)(1)(B).   ERISA does not contain a specific

5    limitations period for challenging the denial of benefits.

6    See Burke v. PriceWaterHouseCoopers LLP Long Term Disability

7    Plan, 572 F.3d 76, 78 (2d Cir. 2009).   Instead, the

8    controlling limitations period is provided by the “most

9    nearly analogous state limitations statute.”    See id.

10       Appellant makes two arguments for why her claim was not

11   time-barred.

12       First, Appellant argues that Hartford’s contractual

13   limitations period did not begin to run until the final

14   denial of benefits.   Here, Connecticut’s six-year statute of

15   limitations applicable to contract actions applies,

16   Conn.Gen.Stat. § 52-576, while federal law controls the

17   accrual date of the party’s claim.   See Guilbert, 480 F.3d

18   at 149.   Under Connecticut law, parties to an insurance

19   contract may shorten the statute of limitations period to

20   not less than one year.   See Conn.Gen.Stat. § 38a-290.    In

21   this Circuit, a statute of limitations specified by an ERISA

22   plan for bringing a claim under 29 U.S.C. § 1132 may begin


                                   3
1    to run before a claimant can bring a legal action.     See

2    Burke, 572 F.3d at 81.

3        Hartford’s plan provided that its three-year

4    limitations period ran from the time that proof of loss was

5    due under the plan.     The policy language is unambiguous and

6    it does not offend the statute to have the limitations

7    period begin to run before the claim accrues.     See id.

8    Appellant filed her claim challenging the denial of long-

9    term disability benefits more than three years after her

10   proof of loss was due.     Therefore, Appellant’s action is

11   time-barred.

12       Second, Heimeshoff argues that Hartford was required to

13   disclose the time limits for filing a civil action in its

14   denial of benefits letters pursuant to 29 C.F.R. §

15   2560.503–1(g)(1)(iv).     Appellant contends that Hartford’s

16   failure to do so entitles Appellant to equitable tolling of

17   her claim.     Appellant relies upon a case from the Southern

18   District of New York to support its claim that the

19   regulation in question requires notice.     See Novick v.

20   Metropolitan Life Ins. Co., 764 F. Supp. 2d 653, 660-64

21   (S.D.N.Y. 2011).     We need not address this issue.

22   Appellant’s counsel conceded in the district court and at


                                     4
1    oral argument that he had received a copy of the plan

2    containing the unambiguous limitations provision long before

3    the three-year period for Appellant to bring the claim had

4    expired.   Thus, Appellant is not entitled to equitable

5    tolling.   See Veltri v. Building Service 32B-J Pension Fund,

6    393 F.3d 318, 326 (2d Cir. 2004) (“a plaintiff who has

7    actual knowledge of the right to bring a judicial action

8    challenging the denial of her benefits may not rely on

9    equitable tolling notwithstanding inadequate notice from her

10   pension plan”).

11       For the foregoing reasons, the judgment of the district

12   court is hereby AFFIRMED.

13
14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk
16
17
18




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