The Honorable Patrick A. Conmy, United States District Judge for the District of North 1

Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-2006

___________

Delroy R. Blaske, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the District

of

* Minnesota

UNUM Life Insurance *

Company of America, *

*

Defendant-Appellees. *

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Submitted: November 21, 1997

Filed: December 18, 1997

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Before BOWMAN, MURPHY, Circuit Judges, and CONMY , District Judge. 1

___________

CONMY, District Judge.

I. Background

Mr. Blaske was insured by UNUM Life Insurance Company with a policy

providing disability benefits. He filed a notice and proof of claim for

benefits in February of 1995. The onset of the disability from a

progressively disabling disease, primary sclerosing cholangitis/ Crohn’s

colitis, was stated by him to begin “10 / ‘90 or 1 / ‘91".

The policy language required the insured to give written notice

within thirty days of the date the disability starts. It further

provides that proof of claim must be given, at the latest, twenty one

months after the onset of the disability. A final requirement is that

legal action cannot
The Honorable Michael J. Davis, United States District Judge for the District of 2

Minnesota.

2

be maintained after three years from the date that proof of claim is

required.

UNUM denied the claim in March of 1995, citing that Mr. Blaske had

failed to follow the notice and proof of claim provision in the policy. 

After an exchange of correspondence, UNUM informed Mr. Blaske that the

decision to deny benefits was its final decision. This action was filed

in state court on October 15, 1995, and removed by UNUM to federal court

based on federal question jurisdiction: Employee Retirement Income

Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461. 28 U.S.C. §

1331; 29 U.S.C. § 1132(e)(1).

The District Court granted summary judgment to UNUM on both the 2

issue involving the late filing of the notice and proof of claim, and

also on the three year “limitations” period in the policy. The District

Court determined that Mr. Blaske had not come forward with evidence to

create a genuine factual dispute as to whether the onset of his

disability began any later than January 1, 1991; thus, proof of claim

was required to be filed, at the latest, on or before September 28,

1992, and the limitations period set out in the policy required suit to

be started before September 28, 1995.

II. Standard of Review

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

judgment, to determine whether the record shows that there is no genuine

issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. Donaho v. FMC Corp., 74 F.3d 894, 897-897

(8th Cir. 1996).

III. Discussion

ERISA is silent as to the import of disability insurance policy

requirements of notice and proof of claim. When there is no federal

statutory law to apply in ERISA litigation, the court should look to

“federal common law” as a source for interpretation. Reid, 17 F.3d
3

1092, 1098 (8th Cir. 1994). Counsel for Mr. Blaske urges that this

Court adopt as a requirement of federal
4

common law that UNUM be required to show that the late filing of the

proof of claim resulted in prejudice to the insurance company. While at

least one district has incorporated this provision into its

determination of federal common law, the Eighth Circuit has not had

occasion to make a determination on this issue. See, Cisneros v. UNUM

Life Ins. Co. of America, 115 F.3d 669 (9th Cir. 1997). Counsel would

then seek to “boot strap” Mr. Blaske into compliance with the three year

limitation period by incorporating the prejudice requirement into the

time period reserved for filing the proof of claim.

We do not find it necessary to reach the question involving

prejudice. ERISA contemplates reference to the most analogous state-law

statute of limitations in an action to recover plan benefits. Adamson

v. Armco, Inc., 44 F.3d 650, 652 (8th Cir. 1995), cert. denied, 64

U.S.L.W. 3230 (U.S. Oct. 2, 1995) (No. 94-2105). Minnesota has a three

year statute applicable to an action such as this, and the District

Court found the limitations period in the policy to be reasonable. 

Minn. Stat. § 62A.04, Subd. 2(11). Such a determination is clearly

permissible. If Mr. Blaske was entitled to benefits after the

expiration of the one hundred eighty day exclusion period, his right to

such benefits vested on September 28, 1992, and a three year statute

would require suit by September 28, 1995. The policy is more liberal

than the Minnesota Statute.

We find that the District Court correctly determined that no

question of fact existed as to the time of the onset of Mr. Blaske’s

disability, which arose on or before January 1, 1991. We affirm the

decision of the District Court.

A true copy.

Attest:

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