* The Honorable Lee R. West, Senior United States District Judge for the Western

District of Oklahoma, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 10 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANNA LANG,

Plaintiff - Appellant,

v. AETNA LIFE INSURANCE COMPANY, a Connecticut corporation, Defendant - Appellee. No. 98-4057

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D. Ct. No. 97-CV-70-S)
Brad C. Smith (David S. Kunz, Of Counsel, with him on the briefs), Stevenson & Smith, P.C., Ogden, Utah, appearing for appellant. Scott H. Martin (John R. Lund with him on the brief ), Snow, Christensen & Martineau, Salt Lake City, Utah, appearing for appe llee.

Before TACHA and KELLY , Circuit Judges, and WEST , * District Judge.

TACHA , Circuit Judge.- 2 -

Plaintiff Anna Lang filed this suit to recover paym ents allegedly due under a disability insurance policy. Defendant Aetna Lif e Insurance responded with a motion to dismiss, claiming the suit was time-barre d. In a thorough and wellreasoned opinion, the district court granted defend ant’s motion to dismiss. Plaintiff filed a timely appeal. We exercise juris diction pursuant to 28 U.S.C. § 1291, and affirm.
I. Plaintiff Anna Lang was employed as a professor of geography at the University of Miami in Coral Gables, Florida. Defe ndant insured employees of the University of Miami through a group policy thatincluded disability benefits. In October 1979, plaintiff became disabled. She fi led notice and furnished proof of her disability to defendant. From 1979 until Ju ne 30, 1991, defendant paid Lang $1110.00 per month in long-term disability ben efits. On or about June 17, 1991, defendant informed plaintiff by letter that the company no longer considered her disabled. As a re sult, her benefits were discontinued effective June 30, 1991. On June 26, 1997, plaintiff filed the instant suit, seeking disability benefits accrued since Jun e 30, 1991 plus future benefits, interest and costs.- 3 - II. The district court found the claim barred by the st atute of limitations. Because the district court ruled on the legal suffi ciency of plaintiff’s complaint, we review the district court’s dismissal de novo. Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). The district court construed plaintiff’s claim as o ne for relief under the Employee Retirement Income Security Act of 1974 (ERISA). Plaintiff does not dispute this construction. A participant in or ben eficiary of an ERISA plan may bring a civil action to recover benefits or enforce rights under the plan. 29 U.S.C. § 1132 (1999). ERISA, however, does not establish a statute of limitations for private enforcement actions brought under this prov ision. “Congress not infrequently fails to supply an expre ss statute of limitations when it creates a federal cause of action. When th at occurs, ‘[w]e have generally concluded that Congress intended that the courts ap ply the most closely analogous statute of limitations under state law.” Reed v. United Transp. Union , 488 U.S. 321, 323 (1989) (quoting DelCostello v. Int’l Bhd. of Teamsters , 462 U.S. 151, 158 (1983)). In Wright v. Southwestern Bell Tel. Co ., 925 F.2d 1288 (10th Cir. 1991), this court had to determine the applicable s tatute of limitations for a claim brought under §1132. First, the court characterize d the nature of the plaintiff’s claim and then sought to apply the “most analogous” state statute of limitations.- 4 -

Id . at 1291. Plaintiff here seeks to recover long-term disability insurance benefits. Utah has two statutes of limitations that are analogous to plaintiff’s claim. One statute provides as follows: “An action on a written policyor contract of first party insurance must be commenced within three years afte r the inception of the loss.” Utah Code Ann. § 31A-21-313(1) (1999). The other analogous statute provides: “An action may be brought within six years . . . up on any contract, obligation, or liability founded upon an instrument in writing. . . .” Utah Code Ann. § 78-12-23 (1996). Our duty under Wright is to choose the most analogous state statute of limitation. While plaintiff’s ERISA claim is basedupon a contract, it is more precisely based upon a contract of insurance. Ther efore, we hold that the threeyear statute of limitations applies to plaintiff’s claim. See Schafer v. Aspen Skiing Corp. , 742 P.2d 580, 582 (10th Cir.1984) (holding that w here two statutes of limitation could apply, the more specific provis ion will govern over the more general one). The three-year limitation is part of the state’s co mprehensive insurance code. Plaintiff contends that in borrowing the lim itation period from the state code, we must also borrow and apply the code’s prov isions concerning scope and application. We disagree. This is an ERISA action, and we cannot allow- 5 -

substantive state law to control this federal claim . We adopt the state limitation period to fill a small gap in federal law and only where consistent with federal law and policy. See Wilson v. Garcia , 471 U.S. 261, 266-267 (1985). Plaintiff correctly points out that this borrowing may logically include state rules of tolling. See Board of Regents v. Tomanio , 446 U.S. 478, 485 (1980). However, there is no issue of tolling before us. F urthermore, borrowing includes tolling provisions because a statute of limitations “is understood fully only in the context of the various circumstances that suspend i t from running against a particular cause of action.” Johnson v. Railway Express Agency , 421 U.S. 454, 463 (1975). Here, plaintiff suggests that this co urt must borrow provisions from the Utah Insurance Code unrelated to the limitationperiod. To do so would exceed the narrow purpose of the borrowing requirem ent and would be inconsistent with the federal law of ERISA. The three-year limitation requires the claimant to file within three years after the “inception of the loss.” Utah Code Ann. § 31A-21-313(1) (1999). Plaintiff claims her “loss” occurred in 1979 with the onset of her disability, not in 1991 with the alleged breach by the defendant. She contends that applying the three-year limitation to her claim would lead to th e absurd result of declaring her claim stale in 1982. She therefore urges the courtto apply the six-year limitation provision, which does not carry the “inception of the loss” language.- 6 -

In Canadian Indem. Co. v. K&T, Inc. , 745 F.Supp. 661 (D. Utah 1990), the court interpreted this “inception of the loss” lang uage in the context of an alleged breach by an insurer. “In a suit for an alleged br each of an insurer’s duty to defend, the insured’s first loss occurs when the in sured first incurs expenses of defense.” Id . at 664. The statute of limitations was triggered not by the personal injury giving rise to the suit but rather by the in surer’s alleged breach in refusing to defend against the suit. So it is here. The st atute of limitations was triggered not by the plaintiff’s personal disability in 1979 but only upon the insurer’s alleged breach in 1991. Finally, plaintiff attempts to characterize the dis ability policy as an installment contract. She then claims her suit is timely because a separate statute of limitations runs against each unpaid monthly ben efit. Under plaintiff’s characterization, her claim would have an indefinit e lifespan. Such a result would undermine the overriding purpose of a statute of li mitation. Time limits are essential “to promote justice by preventing surpris es through the revival of claims that have been allowed to slumber until evidence ha s been lost, memories have faded, and witnesses have disappeared.” Allred v. Chynoweth , 990 F.2d 527, 529- 30 (10th Cir. 1993) (internal quotation marks and citations omitted ). Since the three-year limitation applies to this sui t, and inception of the loss occurred in 1991, we AFFIRM.