    17-3354
    Arkun v. Unum Group


                          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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    12th day of April, two thousand nineteen.

    Present:
                JOHN M. WALKER, JR.,
                GUIDO CALABRESI,
                DEBRA ANN LIVINGSTON,
                      Circuit Judges.
    _____________________________________

    SUSAN ARKUN,

                           Plaintiff-Appellant,

                    v.                                                        17-3354

    UNUM GROUP, UNUMPROVIDENT CORPORATION,
    PROVIDENT LIFE AND ACCIDENT INSURANCE
    COMPANY,

                      Defendants-Appellees.
    _____________________________________

    For Plaintiff-Appellant:                            SUSAN ARKUN, pro se, New York, NY.

    For Defendants-Appellees:                           Louis P. DiGiaimo, Esq., McElroy, Deutsch,
                                                        Mulvaney & Carpenter, LLP, Morristown, NJ.
       Appeal from the judgment of the United States District Court for the Southern District of

New York (Engelmayer, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Susan Arkun, an attorney appearing pro se,1 appeals the September 14, 2017, decision and

order of the District Court for the Southern District of New York, granting summary judgment in

favor of Defendants-Appellees Unum Group, Unumprovident Corporation, and Provident Life and

Accident Insurance Company (collectively, the “Defendants”). Arkun’s complaint alleges that in

1999 she began suffering from a chronic persistent motion sickness that left her disabled and unable

to perform her former occupation as a tax attorney. Her complaint seeks a declaratory judgment

that she is entitled to long-term disability benefits under a group disability insurance policy (the

“Policy”), which is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”),

29 U.S.C. § 1001 et seq. Here, she challenges the district court’s determination that her action is

time barred under the Policy’s applicable statute of limitations.

       We review a district court’s grant of summary judgment de novo, “resolv[ing] all

ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police

Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only

when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine



1
   An attorney appearing pro se is not ordinarily entitled to the special solicitude that courts
generally extend to pro se litigants. See Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010)
(“[A] lawyer representing [her]self ordinarily receives no such solicitude at all.”). Here, however,
the district court afforded “the full degree of special solicitude to Arkun, whom the Court
underst[ood] to have been a tax lawyer, not a litigator.” Appendix (“A”) at 14 n.3.
                                                  2
dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). We assume

the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues

on appeal.

       Under ERISA § 502(a)(1)(B), a participant in an employee benefit plan may bring an action

to recover benefits due under the terms of her plan.          29 U.S.C. § 1132(a)(1)(B).        Section

502(a)(1)(B) does not itself specify a statute of limitations. The Supreme Court has held, however,

that such suits are time barred if filed after the limitations period set forth in the relevant employee

benefit plan, so long as the plan’s required time period is reasonable. Heimeshoff v. Hartford Life

& Accident Ins. Co., 571 U.S. 99, 106–07 (2013); see also id. at 108 (“The principle that contractual

limitations provisions ordinarily should be enforced as written is especially appropriate when

enforcing an ERISA plan.”). This remains true where the plan requires a participant to file suit

under § 502(a)(1)(B) within a time period after the participant has submitted “proof of loss.” Id.

at 112–13.

       The Policy here contains a three-year limitations period that begins to run at the time proof

of loss is due or, if earlier, when received.2 The Defendants notified Arkun of this deadline on

July 14, 2004, when they first determined that she was ineligible under the Policy. Arkun then

appealed that determination and indicated that she would submit additional documentation in

support of her appeal. On October 6, 2008, the Defendants received this additional information


2
  The Policy provides that: “No action at law or in equity may be brought until 60 days after
Covered Persons have given us Proof of Loss and have exhausted all appeals. Such action may
not be brought more than 3 years after the earlier of: 1. the date we receive Proof of Loss; or 2. the
end of the period within which Proof of Loss is required to be given.” Special Appendix at 34.

                                                   3
from Arkun and began their review.          On March 20, 2009, less than six months later, the

Defendants denied Arkun’s appeal and notified her of her right to seek judicial review. The

district court properly reasoned that Arkun had submitted proof of loss by October 6, 2008, and that

because the terms of the Policy required her to seek judicial review within three years of that date,

Arkun was required to file her lawsuit by October 6, 2011. Instead, Arkun did not file suit until

October 22, 2015, more than four years late.

          Courts must give effect to a policy’s limitations provision unless that period is either

unreasonably short or a controlling statute prevents the limitations provision from taking effect.

See Heimeshoff, 571 U.S. at 109. In this case, “[n]either condition is met.” Id. Arkun had

nearly two and a half years to file this lawsuit after the Defendants denied her appeal. As the

district court concluded, this “period is not an unreasonably short one in which to bring a lawsuit

and there is no statute governing the Policy that provides otherwise.”            A. 17;    see also

Heimeshoff, 571 U.S. at 109 (finding “reasonable” a policy that left the claimant with one year in

which to file suit following the completion of the administrative review process).

          Arkun argues, however, that the three-year limitations period in the policy only applies to

initial denials of a claim, and does not apply to subsequent determinations that a claimant is no

longer eligible for coverage. In other words, because Defendants originally approved her claim

for disability benefits, and only later determined that she was no longer eligible for continuing

benefits, she asserts that the three-year limitations term does not apply. Thus, she argues, because

the policy is silent as to a limitations period for subsequent denials of coverage, New York’s default

six-year statute of limitations period for breach of contract claims applies. See N.Y. C.P.L.R. §

213(2).

                                                   4
       We find this argument unpersuasive for two reasons. First, there is nothing in the plain

terms of the policy itself to indicate that the three-year limitations period only applies to initial

denials and not subsequent denials. Indeed, the term setting out the limitations period simply

states that an action cannot be brought more than three years after the date Proof of Loss is due or

received, whichever is earlier. Special A. at 34. Proof of Loss is in turn defined as “written

evidence satisfactory to [defendants] that [enables claimant to assert that she is] Disabled and

entitled to LTD Monthly Benefits.” Special A. at 35. Nothing in the definitions of these terms

indicates that the three-year limitations period only applies to initial claims, and not subsequent

reevaluations of a claimant’s eligibility. Therefore, Arkun’s submission of evidence that she

remained disabled and entitled to continuing disability benefits in 2004, and on internal appeal in

2008, constitutes Proof of Loss sufficient to trigger the three-year limitations period. Second,

even if we accepted Arkun’s argument that the policy does not specify a limitations period for

subsequent claims, and that New York’s six-year limitations period applies, her claim would still

be time-barred, because this action was not filed until October 22, 2015, more than six years after

the Defendants denied her appeal on March 20, 2009.3

       We have considered all of Arkun’s remaining arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court




3
  Arkun’s submission of additional documentation in the interim period did not extend the onset of
the statute of limitations here.
                                              5
