                                                                          [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                            FILED
                                                                        U.S. COURT OF APPEALS
                                ________________________                  ELEVENTH CIRCUIT
                                                                              Oct. 21, 2009
                                      No. 08-16781                         THOMAS K. KAHN
                                ________________________                        CLERK


                      D.C. Docket No. 06-00479-CV-FTM-99-SPC

BEATRIZ MARTINEZ-CLAIB, M.D.,

                                                                        Plaintiff-Appellant,

                                              versus

BUSINESS MEN’S ASSURANCE COMPANY OF AMERICA,
METROPOLITAN LIFE INSURANCE CORPORATION,

                                                                         Defendants-Appellees.

                                ________________________

                      Appeal from the United States District Court
                           for the Middle District of Florida
                            _________________________

                                      (October 21, 2009)

Before EDMONDSON, BLACK and SILER,* Circuit Judges.

SILER, Circuit Judge:


       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
                                INTRODUCTION

      Plaintiff Beatriz Martinez-Claib appeals from the district court’s order granting

summary judgment in favor of defendant MetLife in this ERISA suit. The district

court found Martinez-Claib’s claim was time-barred, and that, even if it were timely,

the preexisting condition exclusion applied. Martinez-Claib appeals, and for the

following reasons, we affirm.

                                          I.

      In September 2001, Martinez-Claib contracted with Family Health Care

Centers of Southwest Florida (FHC) to provide physician’s services. The contract

covered a period of employment between November 2001 through November

2003 and required FHC to provide long-term disability insurance. Martinez-Claib

began employment as a physician with FHC in early November 2001. A month

later, she suffered a grand mal brain seizure. She was subsequently diagnosed

with a brain tumor, and underwent surgery later that month. She did not return to

work until February 2002. In May, due to her deteriorating health, she was

reassigned within FHC to be a bilingual health educator, a position she held until

April 2003, when she could no longer work. In March 2003, FHC cancelled its

benefits policy with MetLife, which was before Martinez-Claib’s last day of work

at FHC.

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      In March 2004, Martinez-Claib submitted her claim for long-term disability

benefits. The claim was denied in a November 2004 letter which explained that

her coverage did not become effective until February 2002 (after the brain

seizure). It also explained that her last day of work in April 2003 was beyond the

March 31 date when FHC cancelled its plan with MetLife. It implied that it was

considering her last day of work as a health educator as the date of disability, and

concluded that coverage was precluded because that date was outside the coverage

period. Although she filed an appeal with MetLife in May 2005, the appeal file

was lost and never processed. She filed this ERISA suit in September 2006.

      The parties cross-motioned for summary judgment, and the district court

granted MetLife’s motion because Martinez-Claib’s claim was time-barred. It also

held, in the alternative, that even if it were timely, the preexisting condition

exclusion applied. Martinez-Claib timely appeals.

                                          II.

      “We review the district court’s grant of summary judgment de novo,

applying the same legal standards as the district court.” Sierra Club, Inc. v.

Leavitt, 488 F.3d 904, 911 (11th Cir. 2007). Here, the district court found that

because MetLife failed to act on Martinez-Claib’s appeal within the required time




                                           3
period, it would deem its inaction an implicit denial. It applied a de novo standard

of review and both parties agree this is the proper standard.

      Because we find that Martinez-Claib’s claim was time-barred, and she has

failed to make a showing that MetLife was not prejudiced by her delay in filing

her claim, we affirm the district court. Finding it determinative of the case, we do

not reach Martinez-Claib’s argument about the preexisting condition exclusion.

                                          III.

                                          A.

      As a threshold matter, Martinez-Claib claims that MetLife may not argue

any rationale for claim denial that it did not raise prior to litigation. Therefore, she

argues, the court erred in considering MetLife’s arguments that she failed to give

timely notice of her claim and that the preexisting condition exclusion applied,

because the denial letter did not mention either of these reasons for denying

coverage. Instead, the letter relied on finding that her last day of work was the

date of disability, and since that date was after the date FHC cancelled its

long-term disability plan with MetLife, there was “no qualifying period of

coverage.” The district court allowed MetLife to raise these arguments, relying on

Tippitt v. Reliance Standard Life Insurance Co., which recognized that although a

district court may discount or reject these tardy explanations, it was not erroneous

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for a district court to consider “post-hoc explanations about why an insurer denied

the plaintiff's claim.” 276 F. App’x 912, 915 (11th Cir. 2008). It also relied on

Farley v. Benefit Trust Life Insurance Co., which held that arguments that

coverage does not exist cannot be waived. 979 F.2d 653, 660 (8th Cir. 1992).

       The bar to post-hoc arguments referenced in Tippitt applies only in cases

reviewing the plan administrator’s decision under the deferential arbitrary and

capricious standard of review. It does not apply in de novo review cases such as

this. The rationale for the post-hoc rule is that the court cannot defer to a plan

interpretation that was not offered in the administrative process. Such a concern is

not present where we are asked to review the denial of benefits de novo. Because

this context does not provoke application of such a rule, it cannot operate to

prevent MetLife from relying on reasons for denying Martinez-Claib’s claim that

it did not originally include in its denial letter.

       Martinez-Claib also argues that MetLife waived these arguments it did not

raise in its denial letter. We have considered waiver in the context of ERISA in

Glass v. United of Omaha Life Insurance Co., 33 F.3d 1341 (11th Cir. 1994). In

our discussion of waiver, we defined the term as “the voluntary, intentional

relinquishment of a known right,” and noted that it is “a common law principle




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whose applicability under ERISA is an issue of first impression in this circuit.” Id.

at 1347.

      Given that the issue was new to the circuit, we looked at two circuit court

opinions to frame the issue, Pitts by and Through Pitts v. American Security Life

Insurance Co., 931 F.2d 351, 357 (5th Cir. 1991); and Thomason v. Aetna Life

Insurance Co., 9 F.3d 645, 648 (7th Cir. 1993), and ultimately followed

Thomason. Thomason “left open whether waiver principles might apply, as part of

the federal common law in the ERISA context, under other circumstances, but

rejected the waiver argument made by the plaintiff in that case.” Glass, 33 F.3d at

1348. We rejected waiver in the specific context of the case because the claimant

had not shown either that there was an intentional relinquishment of a known right

or that the insurer was unjustly benefitted by its conduct. Id.

      Here, MetLife denied the benefits because it assumed Martinez-Claib’s final

day of work at FHC was the “date of disability” and therefore after the policy had

been cancelled between MetLife and FHC. Thus, it did not intentionally give up

the right to argue the other grounds for denying benefits based on the correct date

of disability, Martinez-Claib’s last day working as a physician. If MetLife had

framed her claim as Martinez-Claib submitted it, using the last day worked as a

physician as the date of disability, it could not make the argument that the policy

                                          6
was no longer in effect at the time of the disability. Then it could have considered

other bases for denying the claim. In addition, although it was MetLife’s fault that

there was no opportunity to correct this through the appeals process, there is no

evidence in the record that MetLife knew, at that time that the denial letter was

sent, that it would be its last opportunity to address Martinez-Claib’s claim.

Therefore, because there is no evidence that MetLife intentionally gave up the

right to raise these arguments, or that MetLife was unjustly benefitted by its

conduct, the arguments MetLife raises were not waived.

                                         B.

      The district court found Martinez-Claib’s claim was time-barred because

she failed to comply with the notice provisions of the policy. Martinez-Claib

states that she became disabled in May 2002, when she was reassigned to the

position of health educator. She filed her claim in March 2004. As the district

court found, even under the most generous notice provisions of the policy,

Martinez-Claib’s claim is time-barred. The last deadline for filing a claim is one

year from the time the proof of claim was required to be filed, which was

November 2003, and the claim was filed four months later.

      Martinez-Claib argues that despite the untimely notice, Florida’s

notice-prejudice rule applies. In UNUM Life Insurance Co. of America v. Ward,

                                          7
the Supreme Court found that California’s notice-prejudice rule was not

preempted by ERISA because it fell within the statutory savings clause which

exempts from preemption any state law which regulates insurance. 526 U.S. 358,

363-64 (1999). Therefore, it is likely that Florida’s law would not be preempted.

Florida’s law was articulated in Tiedtke v. Fidelity & Casualty Co. of New York, a

case concerning a car insurance policy with a notice provision requiring the

insured to provide written notice of any accident “as soon as practicable.” 222

So.2d 206, 207 (Fla. Sup. Ct. 1969). The court held that “while prejudice to the

insurer is presumed, if the insured can demonstrate that the insurer has not been

prejudiced thereby, then the insurer will not be relieved of liability merely by a

showing that notice was not given ‘as soon as practicable.’” Id. at 209. See also

Lane v. Provident Life & Accident Ins. Co., 178 F.Supp.2d 1281 (S.D. Fla. 2001)

(considering the rule in the context of a disability claim.)

      Here, Martinez-Claib has not sufficiently created a genuine issue of material

fact with respect to whether her evidence rebuts the presumption that MetLife was

prejudiced by her delay. If Martinez-Claib had complied with the deadlines for

filing the notice of claim or the time limit for filing proof of claim, MetLife would

most likely have had notice of the claim before Martinez-Claib’s last day of work

as a health educator. Therefore, it would have understood she was basing her

                                           8
disability claim on the last date worked as a physician and not the last date worked

as a health educator.

                                   AFFIRMED.




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