**UN PUBLISHED**  UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 10**  **- 2405** 

BENJAMIN BELROSE , Plaintiff

- Appellant ,
v. THE HARTFORD LIFE & ACCIDENT INSURANCE COMPANY , Defendant

- Appellee
.
Appeal from the United States District Co urt for the Eastern District of Virginia , at Alexandria
. Leonie M. Brinkema , District Judge. ( 1:10

- cv - 00764

- LMB
- TRJ )
Argued : January 26, 2012 Decided: April 13, 2012

Before KING and DUNCAN , Circuit Judges , and J. Michelle CHILDS, United States Di strict Judge for the District of South Carolina, sitting by designation
.
Affirmed by un published opinion
. Judge Childs wrote the opinion, in which Judge King and Judge Duncan joined.

**ARGUED:** Susan A. Leslie

- Fraser, LAW OFFICE OF SUSAN LESLIE

FRASER, Warrenton, Virginia, for Appellant. David Edward Constine, III, TROUTMAN SANDERS, LLP, Richmond, Virginia, for Appellee. **ON BRIEF:** Laura D. Windsor, TROUTMAN SANDERS, LLP, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precede nt in this circuit.2 CHILDS, District Judge : Benjamin Belrose (“Belrose”) appeals the district court’s order granting Hartford Life & Accident Insurance Company’s (“Hartford”) motion to dismiss 1 Belrose’s action challenging the termination of his long

- term disability benefits
. We affirm. Belrose became a full

- time employee of the Camber Corporation (“Camber”) on August 1, 2002, and became eligible for disability benefits under the Camber Group Benefit Plan (the “Plan”) provided to employees through Hartfor d. On September 10, 2002, Belrose underwent arthroscopic knee surgery. As a result, Belrose began receiving short

- term disability benefits under the Plan in September 20 02 . A fter his surgery, Belrose received a diagnosis of aortic valve d isease, coronary angina, and coronary artery disease . In December 2002, as a result of his heart condition, Belrose applied for and began receiving long

- term dis ability benefits under the Plan. Belrose receive d the benefits until October 5, 2005, when

1 Belrose incorrectly states in his brief that the dist rict court granted summary judgment. J.A. 8. In granting Hartford’s motion to dismiss, t he district court considered the Camber Group Benefit Plan document which Hartford attached to its motion. Although Belrose did not attac h the Camber Benefit Plan to his complaint, it was not improper for the district court to consider the document “ in determining whether to dismiss the complaint because it was integral to and explicitly relied on in the complaint and because [Belrose does] not challenge its authentic ity.” Phillips v. LCI Int’l, Inc. , 190 F.3d 609, 618 (4 th Cir. 1999).3 Hartford terminate d the benefits. Belrose appealed the termination of the benefits . The decision to terminate Belrose’s benefits was affirmed on administrative appeal, and Hartford issued a final denial letter to Belrose on June 14, 2006. Belrose filed a c omplaint against Hartford in the United States District Court for the Eastern District of Virginia, at Alexandria on July 9, 2010
. Belrose brought a cause of action under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001

– 1461 , regarding termination of his long

- term disability benefits. Hartford filed a motion to d ismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the limitations period within which Belrose could file suit had expired. The district court gr anted Hartford’s motion. Belrose now appeals. We review de novo a district court’s order granting a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Sucampo Pha r m s . , Inc. v. Astellas Pharma, Inc. , 471 F.3d 544, 550 ( 4 th Cir. 2006). Like the district court, we “must accept as true all of the factual allegations contained in the complaint.” CGM, LL C v. BellSouth Telecomm s . , Inc. , 664 F.3d 46, 51 (4 th Cir. 2011) (quoting Erikson v. Pardus , 551 U.S. 89, 94 (2007)). Fur ther, “we draw all reasonable inferences in favor of the plaintiff.” Id. (quoting4 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. , 591 F.3d 250, 253 (4 th Cir. 2009)). “‘[W]here facts sufficient to rule on an affirmative defense’

— including ‘the defense that the plaintiff’s claim is time

- barred’

— ‘ are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). ’ ” Pressley v. Tupperware Long Term Disability Plan , 553 F.3d 334, 336 (4 th Cir. 2009) (citing Goodman v. Praxair, Inc. , 494 F.3d 458, 464 (4 th Cir. 2007)). The policy at issue is an employee benefit plan , which is governed by ERISA . The cause of action available to those seeking benefits due under an ERISA plan does not specify a statute of limitations or a time of accrual
. See 29 U.S.C. § 1132 (2000). Generally, ERISA allows plans the flexibility to set their own limitations periods. White v. Sun L ife Assur. Co. of Canada , 488 F.3d 240, 250 (4 th Cir. 2007) . However,

w here a plan does not contain a vali d limitations period, courts may apply the applicable state statute of limitations
. See i d. at 250 n.4 (“In the absence of a valid contractual provision governing limitations, we borrow a limitations period from the law of [the state] . . . .” ) ; Dameron v . Sinai Hosp. of Baltimore, Inc. , 815 F.2d 975, 981

– 82 (4 th Cir. 1987) (applying the applicable state statute of limitations)
. Regarding the date o f accrual of a limitations perio d in an ERISA plan , we5 have held that despite the terms of accrual which may be contained within the plan, “[a] n ERISA cause of action does not accrue until a claim of benefits has been made and formally denied.” White , 488 F.3d at 246 (citing Rodriguez v. MEBA Pension Trust , 872 F.2d 69, 72 (4 th Cir. 1989)). Belrose argues tha t the Plan’s limitations term should be replaced with Virginia’s five

- year statute of limitations for breach of contract actions , s ee Va. Code Ann. § 8.01

- 246(2), because the limitations term created an impossibility of performance and was in violation of public policy. 2 The Plan contained a three

- year limitations period, which the Plan stated commenced on the date Hartford required the beneficiary to furnish proof of loss. Belrose asserts that in order to file suit in compliance with the limitations pro vision set forth in the P lan, he would have had to file suit before he ever received notice of the final denial of his benefits. Belrose argues that the limitations period began to run o n September 10, 2002 , when he underwent arthroscopic knee surgery. A pplying an accrual date of September 10, 2002 to the Plan’s three

- year limitations

2 In the alternative, Belrose asks the court to replace the three

- year limitations period with a five

- year limitations period which he alleges is contained in the short

- term disability section of the Plan. Having determined that the district court did not err in applying the Plan’s three

- year limitations period, it is not necessary to address Belrose’s alternative request.6 period , the period in which Belrose could file an action against Hartford would expire on September 10, 2005, approximately nine months before Hartford’s final denial of Bel rose’s claim. Belrose argues that to require filing of an action for benefits due before the benefits are finally denied is contrary to public policy. However, i n granting Hartford’s motion to d ismiss, the district court reasoned that because the limitati ons period for an ERISA claim does not begin to r un until the insurer issues a formal denial

— despite the terms of accrual which may be contained within the P lan

— Hartford’s three

- year limitations period was not unreasonable or contrary to public policy. Fi nding the three

- year limitations period to be reasonable and in accord with public policy when viewe d as accruing on the date of form al denial of benefits , the district court reasoned, it

was n ot necessary to substitute the P lan’s three

- year limitations pe riod with the Virginia statute of limitations for breach of contract. We find no error with the reasoning of the district court
. Belrose further argues that the district court’s substitution of the accrual date , without also replacing the three

- year limit ations period with the Virginia statute of limitations for breach of contract , constitutes “ blue

penciling ,” or rewriting the contract’s words to make them work7 together. Belrose asserts that such rewriting is inappropriate because Virginia courts have tr aditionally refused to rewrite contracts i n order to make them enforceable
. However, Belrose brings his claim under ERISA, and determining the time at which Belrose’s cause of action accrued is governed by federal law rather than Virginia law. See White , 488 F.3d at 245 (noting that, even where a state statute of limitations is applied, the accrual date is governed by a uniform federal rule) ; Blanck v. McKeen , 707 F.2d 817, 819 (4 th Cir. 1983) (noting that, in the case of a federal cause of action, the ti me at which the cause of action accrues is governed by federal law rather than state law) . Accordingly, we find Belrose’s argument s unpersuasive. Belrose argues that , even commencing the limitations period at the date of final denial of benefits , the Pla n’s three

- year limitations period remains contrary to public policy
. Specifically, Belrose argues that a limitations period of less than five years is contrary to public policy in this case because the Virginia statute of limitations for actions derived f rom written contracts is five years. S ee Va. Code Ann. § 8.01

- 246(2). The Supreme Court of Virginia has “upheld contractual statutes of limitation s for periods shorter than that fixed by statute when they were not against public policy and the time perio d was not unreasonably short. ” B d
. of Sup ervisors of8 Fairfax Cnty. v. Sentry Ins. , 391 S.E.2d 273, 275 (Va. 1990) (citing Bd. of Supervisors v. Sampson , 369 S.E.2d 178, 180 ( Va. 1988 )). A limitations period of three years fits well within the intent of V irginia’s legislature. Virginia’s legislature has expressed its intent with regard to the limitation of actions derived from insurance policies by its enactment of Section 38.2

- 314 of the Virginia Code. Section 38.2

- 314 provides, “No provision in any ins urance policy shall be valid if it limits the time within which an action may be brought to less than one year after the loss occurs or the cause of action accrues.” Va. Code Ann. § 38.2

- 314. Thus, a limitations period of three years does not appear to b e contrary to public policy. W hen viewed in light of this court’s prior holding that an ERISA cause of action does not accrue until the claim for benefits has been formally denied, the Plan’s limitations period is not unreasonable or contrary to public pol icy, and is therefore valid. Thus , when faced with a valid limitations period, the district court did not err in applying the Plan’s limitations period rather than substituting the Virginia statute of limitations for breach of contract actions . Belrose r eceived a formal denial of his claim for benefits on June 14, 2006. Therefore, the period in which Belrose could bring a cause of action against Hartford for denial of benefits expired on Jun e 14, 2009. Belrose filed his c omplaint on July 9, 2010, over a9 year after the limitations period expired. Therefore, the district c ourt did not err in granting Hartford’s motion to d ismiss. Accordingly, we affirm the judgment of the district court.

AFFIRMED