                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2787
                                    No. 01-3161
                                    ___________

Pamela Wilkins,                          *
                                         *
      Plaintiff - Appellee/              *
      Cross Appellant,                   *
                                         * Appeals from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Hartford Life and Accident               *
Insurance Company,                       *
                                         *
      Defendant - Appellant/             *
      Cross Appellee.                    *
                                    ___________

                               Submitted: April 18, 2002

                                   Filed: August 14, 2002
                                    ___________

Before WOLLMAN, BEAM and LOKEN, Circuit Judges.
                          ___________

LOKEN, Circuit Judge.

        Pamela Wilkins terminated her employ as a Wal-Mart Stores supervisor and
applied for disability benefits under a group disability plan covering Wal-Mart
employees (the “Plan”). The Plan grants its administrator, Hartford Life and Accident
Insurance Company, “full discretion” to determine eligibility for benefits. Hartford
initially granted Mrs. Wilkins weekly benefits but then denied her claim for long-term
benefits. Nearly five years later, Mrs. Wilkins commenced this action for review of
the benefits denial, a cause of action governed by ERISA. See 29 U.S.C.
§ 1132(a)(1)(B). Ruling on the parties’ cross motions for summary judgment, the
district court awarded Mrs. Wilkins long term disability benefits, concluding Hartford
had abused its discretion in finding her not totally disabled by chronic fatigue
syndrome (CFS) and fibromyalgia. Hartford appeals the award of benefits, and Mrs.
Wilkins cross-appeals the district court’s denial of prejudgment interest and a twelve
percent penalty under state law. We conclude that Mrs. Wilkins’s suit is barred by
the three-year contractual limitations period in the Plan. Therefore, we reverse.

                                    I. Background.

       Mrs. Wilkins applied for disability benefits when she left Wal-Mart on
September 21, 1994. In support of her claim, she submitted an Attending Physician
Statement by her treating physician, Dr. Paul Thompson, diagnosing CFS and opining
that Mrs. Wilkins could not perform her own job but was expected to recover
sufficiently to perform her job by December 22, 1994. Dr. Thompson stated that Mrs.
Wilkins had a “Class 4-Moderate limitation of functional capacity, capable of
clerical/administrative (sedentary) activity.” Hartford promptly granted short-term
weekly disability benefits, without referring the claim for internal review by a
medical professional.

       In mid-December, Dr. Thompson’s office informed Hartford that Mrs.
Wilkins’s condition had not improved and revised her estimated return-to-work date
to January 15, 1995. In January 1995, Hartford was told that Mrs. Wilkins was still
suffering from CFS, was “incapable of any physical exertion,” and had applied for
permanent disability benefits. Under the Plan, Mrs. Wilkins was eligible for twelve
months of long-term disability benefits if she was “prevented by . . . sickness . . . from
performing the essential duties of [her] occupation,” and for continuing benefits after



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one year if she was “prevented from performing the essential duties of any occupation
for which [she was] qualified by education, training or experience.”

       Now presented with a long-term claim, Hartford referred the claim to one of
its case management nurses, who sent a lengthy questionnaire to Dr. Thompson. Dr.
Thompson was slow to reply, and his response did not satisfy Hartford that his
diagnosis of CFS had been adequately supported by clinical efforts to exclude other
possible causes of Mrs. Wilkins’s condition. Hartford concluded that the proof of
disability was insufficient, terminated the weekly disability benefits, and advised Mrs.
Wilkins by letter dated March 7, 1995 that her claim for long-term disability benefits
had been denied.

       Mrs. Wilkins appealed the denial of benefits, submitting additional medical
records and a letter from Dr. Thompson stating that Mrs. Wilkins “feels that she is
getting steadily worse” and “[b]y exclusion, I suspect that she does have the chronic
fatigue syndrome with fibromyalgia.” Hartford denied the appeal by letter dated May
5, 1995. Mrs. Wilkins then submitted two additional appeals which were again
evaluated by internal Hartford health care professionals and were denied by letters
dated June 7, 1995, and April 11, 1996. More than three years after the denial of her
third administrative appeal, Mrs. Wilkins filed this lawsuit.1 Though Hartford only


      1
        Chronic fatigue syndrome is difficult for physicians to diagnose and treat, and
apparently it is not always totally disabling. Thus, claims based upon CFS pose
significant problems for disability plan administrators. The record in this case is not
unlike that in Mitchell v. Eastman Kodak Co., 113 F.3d 433, 441-43 (3d Cir. 1997),
where the Third Circuit concluded an ERISA plan administrator abused its discretion
in denying benefits. Here, the reasons given by Hartford personnel for denying the
claim are much like the reasons criticized by the court in Mitchell, primarily the lack
of “objective medical evidence” of CFS. On the other hand, the claimant’s physician
in Mitchell submitted far better support for the claim of disabling CFS than Dr.
Thompson submitted to Hartford on Mrs. Wilkins’s behalf. Thus, were her claim not
time-barred, this would be a close case on the merits.

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considered whether Mrs. Wilkins was entitled to twelve months of disability benefits
because she could not perform the essential duties of her former job, the district court
granted benefits to the date of its judgment in mid-2001, a period requiring proof that
she was unable to perform any job for which she was qualified.

                           II. Is the Claim Time-Barred?

       In the district court, Hartford moved for summary judgment on alternative
grounds, arguing it did not abuse its discretion in denying Mrs. Wilkins’s claim, and
that the claim is barred “under the Plan’s terms and any applicable statute of
limitation.” In its supporting memorandum, Hartford cited Arkansas cases upholding
reasonable contractual limitations periods. See Ferguson v. Order of United
Commercial Travelers of Am., 821 S.W.2d 30 (Ark. 1991) (enforcing three-year
limitations period in life insurance policy); Hawkins v. Heritage Life Ins. Co., 973
S.W.2d 823 (Ark. App. 1998) (enforcing three-year period in accident policy). In
response, Mrs. Wilkins did not address the contractual limitations issue, arguing only
that her claim is governed by § 16-56-111(a) of the Arkansas Code (actions to enforce
written contracts shall be commenced within five years after they accrue). In granting
summary judgment in favor of Mrs. Wilkins, the district court did not discuss the
limitations issue.

       On appeal, Hartford renews its contention the claim is time-barred. Again
failing to address the contractual limitations issue, Mrs. Wilkins argues that Hartford
failed to preserve the issue for appeal because the district court did not rule on it. We
disagree. See Hegg v. United States, 817 F.2d 1328, 1330 n.2 (8th Cir. 1987).
Hartford raised the issue in the district court, cited relevant Arkansas authority, and
presented sufficient facts to permit its resolution at the summary judgment stage of
the proceedings. Hartford was not to blame when the district court inexplicably failed
to address the issue. In these circumstances, we decline to require the losing party



                                          -4-
to file a motion to reconsider in order to preserve an issue for appeal. Such motions
are frequently a futile waste of time for both the parties and the trial court.

       Turning to the merits of the contractual limitations issue, Hartford relies upon
the following Plan provision:

      Legal action cannot be taken against The Hartford . . . after the shortest
      period allowed by the laws of the state where the policy is delivered.
      This is 3 years after the time written proof of loss is required to be
      furnished according to the terms of the policy.

This provision appears on page 21 of Hartford’s group insurance policy, above a
policy notice that unresolved questions regarding the Plan be brought to the attention
of the Arkansas Insurance Department. This suggests that the contractual limitations
provision (and perhaps the entire policy) was prepared for Wal-Mart, an Arkansas
policyholder, with Arkansas law in mind.

       We agree with Mrs. Wilkins that her ERISA benefits claim is an action based
on a written contract governed by the five year statute of limitations found in § 16-56-
111(a). See Bennett v. Federated Mut. Ins. Co., 141 F.3d 837, 838 (8th Cir. 1998).
But the statute “establishes a maximum, not a minimum” period. Hawkins, 973
S.W.2d at 826. Parties in Arkansas “are free to contract for a limitation period which
is shorter than that prescribed by the applicable statute of limitations, so long as the
stipulated time is not unreasonably short.” Ferguson, 821 S.W.2d at 32. Thus, when
the Plan adopts “the shortest period allowed by the laws of the state” and then defines
that period as “3 years after the time written proof of loss is required to be furnished,”
the three-year contractual limitations period is enforceable under Arkansas law so
long as it “is not unreasonably short.” Both Hawkins and Ferguson held that a three-
year limitation in an insurance policy is not unreasonable. Thus, as in Duchek v. Blue
Cross & Blue Shield of Neb., 153 F.3d 648, 650 (8th Cir. 1998), the Plan’s


                                           -5-
contractual limitations period is enforceable under applicable state law, and we need
not consider whether federal common law under ERISA should be applied if such a
plan provision is unenforceable under state law.

      Applying the Plan’s three-year contractual provision, it is clear that Mrs.
Wilkins’s claim is time-barred. The Plan provides that the three years starts to run
when “written proof of loss is required to be furnished.” When an ERISA claim is
governed by a state statute of limitations, the cause of action accrues, for limitations
purposes, when the plan administrator formally denies the claim for benefits, unless
there was a “repudiation by the fiduciary which is clear and made known to the
beneficiary.” Bennett, 141 F.3d at 839. Here, there was no pre-denial repudiation by
Hartford. But even if the three-year limitations period was therefore equitably tolled
until Mrs. Wilkins’s claim was denied, Hartford denied the claim by letter dated
March 7, 1995, so her November 1999 complaint was filed substantially out of time.

      Given our decision that Mrs. Wilkins’s ERISA claim is time-barred, Hartford’s
appeal of the district court’s award of attorney’s fees, and Mrs. Wilkins’s appeal of
the court’s denial of prejudgment interest and a twelve percent penalty, are moot. The
judgment of the district court is reversed, and the case is remanded with directions to
dismiss the complaint. Appellant’s motion to supplement the record is granted.

      A true copy.

             Attest:

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




                                          -6-
