F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B R I D G E T G O R

D O N , Plaintiff-Appellant

,

v.

D E L O I T T E & T O U C H E , L L P G R O U P L O N G T E R

M D I S A B I L I T Y P L

A N , Defendant-Appellee. No. 12-55114

D.C. No. 2:11-cv-00913- R-J CG

OPI NI ON

A ppeal from the United States District Court for the Central District of California Manuel L . Real, District J u dg e, Presiding

Arg ued and Submitted October 10, 2013—Pasadena, California

F iled April 11, 2014

B efore: Stephen Reinhardt and Morg a n Christen, Circuit J udg e s, and J o h n W . Sedwick, District J udg e. *

Opinion by

J udg e Sedwick; Dissent by

J udg e Reinhardt

* T h e Ho n o rab le J o h n W

. Sed w ick

, S en io r Un ited States District J u dg e f o r th e District o f

A l ask a, sittin g b y

d esig n atio n

.G O R D O N V

. D E L O I T T E & T O U C H E 2

SUMMARY * *

Em ployee Retirem ent Incom e Security Act

Affirming the district court’s summary judg ment, the
p anel h eld that an ERI SA action w as b arred by California’s four-y ear statute of li m itation g overning actions involving written contracts.

The panel held that u nder federal law, the p laintiff’s claim accrued n o later than the date h er a dministrative appeal rig ht

ex p ired, and the ERI SA plan insurer’s reconsideration of her claim d id n ot r evive the statute of limitation. The p anel h eld that the ERI SA plan w as not estopped from asserting a statute of limitation defense based on the insurer’s representatio n t hat the plaintiff could bring an ERI SA action. Turnin g t o Califor n i a l a w for g uidance, the panel h eld that the plan did
not waive its statute of limitation defense ba s ed on the insurer’s representation.

Dissenting

, J udg e Reinhardt wrote that the p l a n waived its rig ht to invoke the statute of limitation by invi t i n g t h e plaintiff to reopen h e r c a se, submit new documents, a nd appeal if dissatisfied.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G O R D O N V

. D E L O I T T E & T O U C H E 3

COUNSEL

Robert J

. Rosati ( a

rg ued), ERI SA L aw Group L L P, F resno, California, for Plaintiff-Appellant.

I an Seth L inker ( arg ued), Metropolitan L ife I n s urance C o mpany , New York, New York; Robert Kevin Ren n e r, B arg er & W o len, L L P, I r vine, California, for D efendantAppellee.

OP INION

SEDW I CK, District J udg e:

Plaintiff-Appellant B ridg et G ordon (“Gordon”) appeals the district court’s summary judg ment in favor of D efendantAppellee Deloitte & T ouche, L L P Group L ong Term Disability Plan ( the “Plan”), which is insu red b y Metropolitan L ife I n surance Company (“MetL ife”), b ased on h e r failure to f

ile the action within the applicable limita t i o n period. Th e Plan is subject to the Employ ee Retirement I ncome Security A ct of 1974, 29 U.S.C. §§ 1001–1461 (“ERI SA”). W e have jurisdiction o ver the appeal pursuant to 28 U.S.C. § 1291.

I. BACK G R OUND

Deloitte & Touche USA L L P (“Deloit t e”) offers employ e es long -term disability insu r a n ce throug h the Plan. The Plan’s claims administrator, M e t L ife, has broad discretionary a

uthority to make elig ibility determinations. Under the Plan, a n e mploy ee is e ntitled to long -term disability benefits if she is otherwise q ualified and meets theG O R D O N V

. D E L O I T T E & T O U C H E 4

Plan’s definition o f “disable d

. ” B enefit pay ments for disabilities due to mental illness are limited to t wenty -four months under the Plan.

Gordon work e d for Deloitte u ntil October of 2000. Around that time, G ordon learned that she was HI V positive and claimed she could n o long er work due to depression. MetL ife determined that she was elig ible f o r d isability benefits unde r t he Plan and beg an pay ing benefits effective March 3, 2001. MetL ife paid benefits throug h December of 2002, but g ave notice that it had terminated further pay ments in a J a n uary 2, 2003 letter. The letter recounted that Gordon’s tre a t i ng phy sician had a dvised on December 19, 2002 that Gordon h a d not b een seen in over three months a nd had failed to a

ppear for her last scheduled appointment. The letter also indicated that Gordon had not responded to calls from MetL ife personnel. The letter then ex plain e d t hat the benefits w ere terminated because Gordon had f a i led to furnish c ontinuing p roof of d isability as r equired by the Plan. The letter g ave Gordon 180 day s f rom receipt of the letter in which to send a written appeal to MetL ife.

On J anuary 9
, 2003, Gordon appealed the termination. After reviewing the medical information submitted in support of h er continuing claim for disability benefits, MetL ife denied her claim in a letter d a t e d M a r ch 17, 2003. The letter reviewed the supporting information at leng th b efore concluding that Gordon did no t meet the definition o f disabled under the Plan, beca u s e the d ocumentation d id not substanti a t e t h e proposition that she was unable to perform the essential duties of h er job. T h e letter in formed Gordon that she had 180 day s to appeal the decision.G O R D O N V

. D E L O I T T E & T O U C H E 5

On October 15, 2003, Gordon appealed, arg u ing that she

was disabled due to severe and d ebilitating depression. I n a N o vember 4, 2003 letter, f o llowing MetL ife’s review of t h e in f o rmation submitted and a review by an independent phy sician consultant, MetL i f e informed Gordon that additional benefits had been approved for the limited period of J anuary 1, 2003 throug h March 2, 2 003, because she was disabled during that period b y her major depression. The letter ex plai n e d that under the Plan Gordon’s benefits were limited to twenty -four months be c a use her disability stemmed fr om a mental illness, and noted her twenty -four months ended on March 2, 2003. Once ag ain G ordon was advis e d that she could appeal the decision within 180 day s.

Gordon failed to appeal. I ndeed, she took no action for

more than four y ears. On N ovember 2 6, 2007, she called MetL ife to ask whether her claim could be reopened, a nd MetL ife informed her that her appeal d eadline had passed. Gordon took no further action for an ad d i t i o nal y ear and a half.

I n April of 2009, MetL ife receiv ed a letter from California’s Department of I nsurance indicating that Gordon had filed a complaint on April 12, 2009. I t asked MetL ife to reevaluate the issues raised by Gordon in her complaint. MetL ife informed Gordon that it would reopen her claim for further review and allowed Gordon to submit any additional information that she wanted MetL ife to consider.

On December 8
, 2009, after r eviewing Gordon’s file a nd the a dditional information available, MetL ife informed Gordon in writing that it was upholding its orig inal decision
to terminate h er benefits b ased on th e P l an’s 24-month limitation for disabilities resulti n g from mental illness. TheG O R D O N V

. D E L O I T T E & T O U C H E 6

letter set forth MetL ife’s analy sis of the medical information and ex p l a i n ed why MetL ife had decided to maintain its orig inal decision. The letter ad v ised Gordon of her appeal ri gh t s, say ing that she could appeal the decision within 180 day s and that a

ny appeal would be concluded within 45 day s unless otherwise notified in writing

. O f sig nificance a t t h is point, the letter al so stated that if the administrative appeal

were to be denied, Gordon wo u l d h ave the rig ht to bring a civil action under § 502(a) of ERI SA. Gordon timely

a p p e a led with a 74-pag e appeal letter and more than 4 8 0
pag es of ex hibits. MetL ife wrote to G ordon’s counsel on J uly 6, 2010, advising that i t was c o ntinuing to review the f ile. However, on J anuary 31, 2011, b efore MetL ife’s r eview was completed, Gordon filed a complaint pursuant to § 502(a) o f ERI SA in the district court.

The d istrict court g ranted the Plan’s motion for summary judg ment. I t concluded that Gordon’s ER I S A action was barred b y the applicable four-y ear statute of l i m i tation, a s well as b y the three-y ear c ontractual limitatio n p eriod contained in the Plan itself. The trial c ourt rejected Gordon’s
arg uments that the reopening of h er f i l e in 2009 reset the
statute of limitation a

n d t hat the Plan waived its limitation defense or was estopped f rom asserting it. The district court entered judg ment in f

avor o f the Plan. T his appeal followed.

II. DISCUSSION

The standard of review applicable here i s w ell known. W e ex amine orders g ranting s u m m ary judg ment de novo, viewing the e vidence in the lig ht most f a vorabl e t o the nonmoving party to determine whet h e r any g enuine issue o f material fact remains. Coszalter v. C i t y of Salem

, 320 F .3d 968, 973 (9th Cir. 2003).G O R D O N V

. D E L O I T T E & T O U C H E 7

A. Statute of lim itation

There is no feder al statute of limitation a pplicable to lawsuits seeking benefits under ERI SA. W etzel v. Lou E

hlers Cadillac Grp. Long Term Disability I ns. Program
, 222 F .3d 643, 646 ( 9th Cir. 2000). W e therefore “look to the most analog ous state statute” i n t h e s tate w here the claim for benefits a rose. Id. Here, the state is California, and the most analog ous s tatute is its four-y e ar statute of limitation
g overning ac t ions involving written c o ntracts. Id. at 648. The d istrict court concluded that Gordon’s caus e o f action accrued on Novembe r 4
, 2003, and thus that the four-y e ar statute of limitation barred her suit.

W h ile the statute of limitation is borrowed from state law, accrual of a

n ERI SA cause of a ction is determined by federal law. Id. at 649. Under f e d eral l a w , “a n ERI SA cause o f action accrues either at the time benefits are actually denied

or when the insured has reason to know that the claim has been denied.” Id. (internal citation omitted). A claimant has

reason to know that the claim h a s been d e n i e d where there has been “a clear and continuing repudiation of a claimant’s rig hts under a plan such that the claimant c ould not have reasonably b elieved but that his b e n e f its had been finally denied.” Chuck v. H

ewlett Packard Co.
, 455 F .3d 1026, 1031 (9th Cir. 2 006) (internal quotation marks a nd citation omitted).

Gordon’s claim was d enied i n t h e November 4, 2003 MetL ife letter w h i c h advised Gordon that no d isability benefi t s w o u l d be a vailable to her a fter March 2, 2 003, a nd that she would receive one final p ay ment covering the period of J anuary 2, 2003 th r o u g h March 2
, 2003. The letter

ex p licitly stated that the last p ay ment was made in a full a ndG O R D O N V

. D E L O I T T E & T O U C H E 8

final settlement of her claim for disability benefits under the Plan. Gordon arg ues that the November 4, 2003 letter did not constitute a final de nial b ecause the letter also informed her of her appeal rig hts, sugge sting that she had f urther administrative remedies a n d that the matter was therefore not final. A ssuming arg uendo that the N ovember 4 letter was not

a final denial, because G ordon still had an adminis t r ative appeal option, the letter also stated that the rig ht to appeal would ex pire 180 day s from November 4, 2003, which meant on or about May

4, 2004.

W e conclude that G ordon’s r ig ht to f ile an ERI SA action

a c c r u e d n o later than May 4, 2004. Gordon d id not file the pending complaint until J anuary 31, 2011. T he district court correctly concluded that Gordon’s ERI SA action was barred by the four-y e a r s t a tute of limitation. That b eing so, it is
unnecessary to consider w hether her compl a i n t is a lso time b a r red under the shorter three-y e ar limitation period set out in the Plan.

B. Revival of

the lim itations period

Gordon arg ues that we should apply California law
reg arding ac k

nowledg ment of debts to conclude that MetL ife’s reconsideration of her c laim in 2009 revived the
statute of limitation. Under Califo r n ia law, “[ t] he acknowledg ment of a d ebt already barred by the statute [ o f limitation] g iv e s rise to a new contract and a new c ause o f action dating from the acknowledg ment.” Eilke v. Rice
, 286 P.2d 349, 352 (Cal. 1955) (e n b a n c )

. However, just as the accrual of an ERI SA cause of action is determined by federal l a w , w hether it can accrue a second time b y virtue o f a revived statute o f limita t i on should also be d etermined b y federal law.G O R D O N V

. D E L O I T T E & T O U C H E 9

Under Ninth Circuit law, MetL ife’s reopeni n g o f Gordon’s cla i m f

i le in 2009 does not in and of itself revive the statute of limitations. I n Martin v. C onstruction Laborer’s Pension Trust
, 947 F .2d 1381 (9th Cir. 1991), the plaintiff soug ht benefits f r o m an employ ee pension p lan established pursuant to the L abor Manag ement Relations A ct

a n d l a t er amended to comply with ERI SA. We c onclude d that t h e a ction was time-barred and rejected plaintiff’s
arg ument that the statute of limitation never c ommenced because the p e n sion plan ag reed to reopen his claim five
y ears after t h e d e n ial. Id. at 1384–86. The court noted that the p lan’s initial d e n i al was u nequivocal and final, the administrative remedies were ex h a u s ted, and plaintiff did nothing further for five y ears. Id. at 1 3 86. I t held that there

was no basis for the c o nclusion that the case was kept open for f ive y ears or that the reopening of the claim c ommenced a new statute of limitation. I d.

W e b el i eve the policy behind the h olding in Martin is obvious, salutary and important. Reviving a limitation period when an insurance company r econsiders a c laim a fter the limitation period has run w ould d i s c o u r a g e reconsideration b y insurers e ven when reconsideration mig h t be warranted. W e hold that the statute of limitation was not revived.

C. Estoppel

Gordon contends that the Plan s h o u ld be estopped from asserting a statute of limitation defense based on MetL ife’s representation t h at she could bring an ERI SA action. I n certai n c i rcumstances, we have recog niz ed the applicability of estoppel in ERI SA cases to prevent an insurance company from rely ing on a statute o f limitati o n or contractual limitat ion period as a defense. “‘As a g eneral rule, aG O R D O N V

. D E L O I T T E & T O U C H E 10

defendant w ill be estopped from setting u p a statute-oflimitations defense wh en its own p rior representations o r conduct h a ve caused the plaintiff to run afo u l o f t h e statute and it is eq u i t a ble to hold the defendant responsible for that result.’” LaMantia v. Voluntary Plan A d m’rs, Inc.
, 401 F .3d 1114, 1119 (9th Cir. 2005) (quoting A llen v. A.H. Robins Co., Inc ., 752 F .2d 1365, 1371–72 (9th Cir. 1985)).

Here, nothing sug g ests that Gordon missed the statute o f limitation deadline because she detrimentally r elied on any representation by MetL ife. I t is true that MetL ife represented in its December 8, 2009 letter t h at G ordon could bring an ERI SA action, but by then the statute had already run, and so Gordon co u l d n ot have r elied o n that statement to her detriment.

D. Waiver

Gordon also contends that the Plan waived its statute o f limitation defense based on MetL ife’s representation in the December 2 009 letter. W a iver is often described as t h e intentional relinquishment of a k n o w n rig ht. Intel Corp. v

. Hartford Accident & Indem. Co.
, 9 52 F .2d 1551, 1559 (9th Cir. 1991). Our cases h ave not y et addressed whether w aiver
pr i n c i p les apply to prevent a n insurance company from raising a limitation defense in the ERI SA c o n t e x t

. I n circumstances where the federal c ommon law is not developed, courts may turn to state common law for g uidance and apply state law to the ex tent that it is consistent with the policies ex pressed in ERI SA. Padfield v

. AIG Life I ns. Co.
, 290 F .3d 1121, 1125 (9th Cir. 2002).

Turning to California law for g uidanc e , w e look to h ow waivers of l i m itation periods are dealt w ith in the insuranceG O R D O N V

. D E L O I T T E & T O U C H E 11

contex t. Under California law, an insurance company cannot waive the statute of limitations after the limitations period has

run. Aceves v. Allstate Ins. Co.
, 6 8 F .3d 1160, 1163 (9th Cir. 1995). I n Aceves
, the plaintiffs’ claim w as time-barred under their policy

, b ut the plaintiffs arg ued that the insu r a nce company w aived its limitatio n s defense because it i nvestig ated the claim and confirmed coverag e withou t mentioning the time bar. The court, apply ing California law, stated that the insurance c ompany could not have waived the
one-y ear sta tute of limitations: “The California Supreme Court h as observed that if a n insurer e x tends the ex piration da t e o f a one-y ear suit provision for a claim that the insured filed and it beg an investig a ting ‘ after the limitations has r un, [ the ex tension] c a n n o t , a s a matter of law, amount to a waiver.’” 6 8 F .3d at 1163 (quoting Prudential-LMI Ins. Co. v. Superior Court , 798 P.2d 1230, 1240 n.5 (Cal. 1990)).

Even if w aiver were possible a f ter t h e limitation period has run, the availability of waiver in the insurance contex t is limited under California law. T y picall y , waiver analy sis looks only at the acts of the waiving party to see if there was

an i n tentional relinquishment of a known rig ht, whereas estoppel looks at the actions of the other party as well to see if that party detrimentally r elied on those acts. Intel

, 952 F .2d
at 1559. However, in the insurance contex t, “the distinction between waiver and estoppel has been blurred.” Id. “I n cases where waiver has been found, there is g enerally some element of misconduct by the insurer or d e trimental reliance by the insured.” I

d

. W e find that it is consistent with ERI SA to

re quire an element of detrimental reliance or some misconduct on the part of the insurance plan b efore finding that it has affirmatively

waived a limitation defense.G O R D O N V

. D E L O I T T E & T O U C H E 12

I n Thomason v. Aetna Life I nsurance Co.
, 9 F .3d 645 (7th Cir. 1993), the Seventh Circuit d eclined to apply w aiver principles in an E R I S A case to hold an insurer to its misleading representations of continued coverag e. The court recog niz ed that waiver i s n o t ty pically applied without a showing of r easonable reliance on the part of the non-waiving party or a showing that there was a n ex chang e o f consideration for the alleg ed waiver. Therefore, it concluded that it w ould not provide a “something -for-nothin g kind o f waiver” in an ERI SA action, whereby the insurance company would “be held to the terms o f its misleading representations for no reason other than that it made them.” Id. at 648–49.

Here, Gor d o n a s k s the court to hold the Plan to its representation reg arding her rig ht to sue in the December 2009 letter “f

o r n o r eason other than that it made [ it] .” W e ag ree with the Seventh Circuit that waiver requires something

more. A s discussed above, there has b e e n no detrimental reliance by Gordon o n t h e December 8, 2009 letter’s

r e presentation. Nor was any consideration provided to MetL ife f

or a waiver of its defense. Gordon a r g ues that consideration came in the form of r elief from the demand b y the California Department of I nsurance to r e o p en Gordon’s

case. At most the Department of I nsurance onl y a s k ed M e t L i f e to a dministratively reopen the file. I t did not ask— m u c h less require, assuming the unlikely proposition that it had such power—that MetL ife waive its limitation defense. F urthermore, there is no showing that MetL ife acted unfairly or to its own advantag e, som e thing which mig ht compel the court to apply an equitable waiver to prevent the Plan from asserting a limitation defense.

Gordon arg ues that the Plan acted to i t s o wn advantag e because it failed to rai s e the limitations defense when itG O R D O N V

. D E L O I T T E & T O U C H E 13

denied her claim after the reopening of her file in 2009, citing Mitchell v. CB Richard Ellis Long Term Disability Plan

, 611 F .3d 1192 (9th Ci r

. 2010) and H arlick v. Blue Shield of California

, 686 F .3d 699 (9th Cir. 2012). I n Mitchell

, we recog niz ed that the insurer w as required to provide the reason for deny ing a claim and r eference the p rovision in the p olicy that forms the basi s f

or the denial. 611 F .3d a t 1199 n.2, 1200. The insurer was ther e fore unable to arg u e that the policy did not p r ovide coverag e b a sed upon a different provision which was not cited i n i t s denial letter to the claimant. H

arlick involved a similar situation

, w h er e the insurance c ompany tried to deny coverag e during litig ation based on a provision that it never cited when initially deny ing
coverag e d

uring the a dministrative process. 686 F .3d at 719.

Such a situation is not pre s e nt here. T he statute o f limitation was never the basis for MetL ife’s denial o f Gordon’s claim. The basis was the P l a n ’s provision that limits b enefits for disabilities stemming from m e n t al health

c o n ditions, and that basis was clearly communicated to G o r d on. W hile the doctrine of w aiver may be applied t o prevent “insurers f

rom deny ing claim s f

or one reason, then coming forward with several other r easons after the insured defeats the f

irst” and to provide “insurers with an incentive to investig ate claims d ilig ently

, ” such an incentive is not needed when it comes to statutes of limitation defenses. Aceves , 68 F .3d at 1163–64.

AF F IRMED.G O R D O N V

. D E L O I T T E & T O U C H E 14

REI NHARDT, Circuit J udg e, dissenting :

I cannot ag ree with the majority that Deloitte is entitled to invoke the statute of limitations to bar Gordon’s civil action after telling her at the behest of the California Department o f I nsurance that it was “reopening [ h er] claim for f urther review,” inviting her o nce ag ain to undertake its burdensome review process, a

nd then deny ing her claim in a letter stating that “ y ou may appeal this dec i s i on [ to MetL ife]

. . . [ and in]
t h e e v ent y our appeal is denied in whole or in part, y ou w i l l have the right to bring a civil action under [ E R I SA]

. ” ( e m phasis added). I n my view, if the Supreme Court o f California were p resented w ith the q uestion, it would likely conclude tha t by its actions Deloitte waived its limitations defense. 1 As that court h a s observed, “[ we] have ap p l i e d doctrines of waiver a

nd estoppel to allow [ insuranc e s u its] filed after the limitations peri o d e x pired to proceed.” Prudential-LMI Com. Ins. v. Superior Court
, 798 P.2d 1230, 1240 (1990) (emphasis added). 2

1 A s th e m aj o rity ack

n o w l ed g es, “ [i]n circu m stan ces w h ere th e f ed eral

co m m o n l a w is n o t d ev elo p ed

, co u rts m ay tu rn to state co m m o n l aw f

or g u id an c e a nd ap p ly state law to th e ex ten t th at it is co n sisten t w ith th e p o l i cies ex p ressed in ERISA .” O p

. at 1 0

. Here, th at ru le d i rects o u r atten tio n to Calif o rn ia w aiv er an d esto p p el law

.

2 A w aiv er o ccu rs “w h en ev er an in su rer in ten tio n ally relin q u ish es its rig h t t o rely o n t

h e lim itatio n s p erio d .” Pru d en t ia l-LMI

, 79 8 P .2 d at 1 2 4 0

.

“ A n esto p p el arises as a resu lt o f so m e co n d u ct b y th e d ef en d an t, relied on b y th e p lain tif

f

, w h i ch in d u c e s t h e b e l ated f ilin g o f th e actio n .” Id

. at 6 8 9

– 9 0 (q u o tatio n

m ark s an d citatio n s o m itted ).G O R D O N V

. D E L O I T T E & T O U C H E 15

Here, we need look no further than waiver. 3 The doctrine of waiver is g rounded in equity

. I n t h e insurance contex t, California courts have repeatedly emphasiz ed that equity may impose new leg al oblig ations on an insurer after that insurer
reopens a previously denied claim. F or ex ample, they h ave h eld that o nce an insurer decides to reopen such a c laim pursuant to California Code of Civil Procedure § 340.9, the doctri n e of equitable tolling may once ag ain apply

. See Ashou v. Libe r t

y M u t

. Fire Ins. Co.
, 138 Cal. App. 4th 748, 762–63 ( Cal. App. 2006) (holding that, under Cod e o f Civil Procedure Section 340.9, equitable tolling should “apply —in the contex t of a previously den i ed claim—when the insurer has ag r eed to reopen a n d r einvestig ate the claim”). The majority is c orrect when it r eports that courts h ave not f ound waiver where, after the limitations period ex pired, an insurer confirmed coverag e without i n f o rming the insured of the

ex istence of the limitations bar. See, e.g. , Aceves v. Allstate Ins. Co.
, 68 F .3d 1160, 1163 (9th Cir. 1 995) (holding that the insurer could maintain a statute of limitations d e fense to a claim even after initially confirming coverag e and failing to state that the claim mig ht be time-barred).

The majority g oes too far, however, i n a sserting that “[ u] nder California law, a n insurance company cannot waive the statute of limitations after the limitations period has run.” Op. at 11. The cases u

pon which it relies deal with particular
sets of c ircumstances not applicable here. Althoug h the California Supreme Court h as not confronted a c ase like the

one before us, it is likely that it would find a difference, properly recog niz ed in e quity

, between failing to inform an insured about a potential limitations bar while in i t i ally

3 Fo r th at reaso n , I d o n o t ad d ress th e q u estio n w h eth er G o rd o n sh ou ld also p rev ail o n

th e g ro u n d o f

esto p p el.G O R D O N V

. D E L O I T T E & T O U C H E 16

confirming coverag e and actively inviting the insured to reopen h er case, submit new docu m e n ts, and appeal if dissati s fi ed—especially w hen the insurer falsely advises the insured that she continues to have th e leg al rig ht to sue her i n surer under ERI SA at the end of the process. Unlik e t h e

cases cited by the maj o r i t y , this case involves the sort o f intentional, affirmative f alse representations b y a n insurer that g i v e s rise to equitable relief such as waiver or estoppel. Certainly it cannot be said that Delo i t t e risked “surprise[ ]
t hroug h the revival of claims that have been a llowed t o slumber” when it voluntarily r e o pened Gordon’s ca se at the behest of the California Department of I nsurance and then falsely told her that if she were u l t i m at ely dissatisfied she would have the leg al rig ht to sue to enforce her rights under ERI SA. 4 Prudential-LMI

, 7 9 8 P .2d at 1236 (1990) (describing the purpose of the statute of limitations).

Acco r d i ng ly

, I c onclude that Deloitte waived its limitations defense and I therefore respectfully dissent.

4 T o th e ex ten t th e m aj o rity is c o r r e c t t o h o l d th at th ere are n o

“ s o m eth in g

- f

o r- n o th in g ” w aiv ers u

n der ERISA
, th at ru le d o es n o t co n tro l th is case, as Delo itte receiv ed th e ben ef its o f co m p ly in g w ith

th e req u est b y th e Calif o rn ia Dep artm en t o f

In su ran ce th at it reo p en

Go rd o n ’ s case.