FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIDGET GORDON,

Plaintiff-Appellant,

v.

DELOITTE & TOUCHE, LLP GROUP

LONG TERM DISABILITY PLAN,

Defendant-Appellee.

No. 12-55114

D.C. No.

2:11-cv-00913-

R-JCG

OPINION

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

October 10, 2013—Pasadena, California

Filed April 11, 2014

Before: Stephen Reinhardt and Morgan Christen, Circuit

Judges, and John W. Sedwick, District Judge.*

Opinion by Judge Sedwick;

Dissent by Judge Reinhardt

* The Honorable John W. Sedwick, Senior United States District Judge

for the District of Alaska, sitting by designation.
2 GORDON V. DELOITTE & TOUCHE

SUMMARY**

Employee Retirement Income Security Act

Affirming the district court’s summary judgment, the

panel held that an ERISA action was barred by California’s

four-year statute of limitation governing actions involving

written contracts.

The panel held that under federal law, the plaintiff’s claim

accrued no later than the date her administrative appeal right

expired, and the ERISA plan insurer’s reconsideration of her

claim did not revive the statute of limitation. The panel held

that the ERISA plan was not estopped from asserting a statute

of limitation defense based on the insurer’s representation

that the plaintiff could bring an ERISA action. Turning to

California law for guidance, the panel held that the plan did

not waive its statute of limitation defense based on the

insurer’s representation.

Dissenting, Judge Reinhardt wrote that the plan waived its

right to invoke the statute of limitation by inviting the

plaintiff to reopen her case, submit new documents, and

appeal if dissatisfied.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GORDON V. DELOITTE & TOUCHE 3

COUNSEL

Robert J. Rosati (argued), ERISA Law Group LLP, Fresno,

California, for Plaintiff-Appellant.

Ian Seth Linker (argued), Metropolitan Life Insurance

Company, New York, New York; Robert Kevin Renner,

Barger & Wolen, LLP, Irvine, California, for DefendantAppellee.

OPINION

SEDWICK, District Judge:

Plaintiff-Appellant Bridget Gordon (“Gordon”) appeals

the district court’s summary judgment in favor of DefendantAppellee Deloitte & Touche, LLP Group Long Term

Disability Plan ( the “Plan”), which is insured by

Metropolitan Life Insurance Company (“MetLife”), based on

her failure to file the action within the applicable limitation

period. The Plan is subject to the Employee Retirement

Income Security Act of 1974, 29 U.S.C. §§ 1001–1461

(“ERISA”). We have jurisdiction over the appeal pursuant to

28 U.S.C. § 1291.

I. BACKGROUND

Deloitte & Touche USA LLP (“Deloitte”) offers

employees long-term disability insurance through the Plan. 

The Plan’s claims administrator, MetLife, has broad

discretionary authority to make eligibility determinations. 

Under the Plan, an employee is entitled to long-term

disability benefits if she is otherwise qualified and meets the
4 GORDON V. DELOITTE & TOUCHE

Plan’s definition of “disabled.” Benefit payments for

disabilities due to mental illness are limited to twenty-four

months under the Plan.

Gordon worked for Deloitte until October of 2000. 

Around that time, Gordon learned that she was HIV positive

and claimed she could no longer work due to depression. 

MetLife determined that she was eligible for disability

benefits under the Plan and began paying benefits effective

March 3, 2001. MetLife paid benefits through December of

2002, but gave notice that it had terminated further payments

in a January 2, 2003 letter. The letter recounted that

Gordon’s treating physician had advised on December 19,

2002 that Gordon had not been seen in over three months and

had failed to appear for her last scheduled appointment. The

letter also indicated that Gordon had not responded to calls

from MetLife personnel. The letter then explained that the

benefits were terminated because Gordon had failed to

furnish continuing proof of disability as required by the Plan. 

The letter gave Gordon 180 days from receipt of the letter in

which to send a written appeal to MetLife.

On January 9, 2003, Gordon appealed the termination. 

After reviewing the medical information submitted in support

of her continuing claim for disability benefits, MetLife denied

her claim in a letter dated March 17, 2003. The letter

reviewed the supporting information at length before

concluding that Gordon did not meet the definition of

disabled under the Plan, because the documentation did not

substantiate the proposition that she was unable to perform

the essential duties of her job. The letter informed Gordon

that she had 180 days to appeal the decision.
GORDON V. DELOITTE & TOUCHE 5

On October 15, 2003, Gordon appealed, arguing that she

was disabled due to severe and debilitating depression. In a

November 4, 2003 letter, following MetLife’s review of the

information submitted and a review by an independent

physician consultant, MetLife informed Gordon that

additional benefits had been approved for the limited period

of January 1, 2003 through March 2, 2003, because she was

disabled during that period by her major depression. The

letter explained that under the Plan Gordon’s benefits were

limited to twenty-four months because her disability stemmed

from a mental illness, and noted her twenty-four months

ended on March 2, 2003. Once again Gordon was advised

that she could appeal the decision within 180 days.

Gordon failed to appeal. Indeed, she took no action for

more than four years. On November 26, 2007, she called

MetLife to ask whether her claim could be reopened, and

MetLife informed her that her appeal deadline had passed. 

Gordon took no further action for an additional year and a

half.

In April of 2009, MetLife received a letter from

California’s Department of Insurance indicating that Gordon

had filed a complaint on April 12, 2009. It asked MetLife to

reevaluate the issues raised by Gordon in her complaint. 

MetLife informed Gordon that it would reopen her claim for

further review and allowed Gordon to submit any additional

information that she wanted MetLife to consider.

On December 8, 2009, after reviewing Gordon’s file and

the additional information available, MetLife informed

Gordon in writing that it was upholding its original decision

to terminate her benefits based on the Plan’s 24-month

limitation for disabilities resulting from mental illness. The
6 GORDON V. DELOITTE & TOUCHE

letter set forth MetLife’s analysis of the medical information

and explained why MetLife had decided to maintain its

original decision. The letter advised Gordon of her appeal

rights, saying that she could appeal the decision within 180

days and that any appeal would be concluded within 45 days

unless otherwise notified in writing. Of significance at this

point, the letter also stated that if the administrative appeal

were to be denied, Gordon would have the right to bring a

civil action under § 502(a) of ERISA. Gordon timely

appealed with a 74-page appeal letter and more than 480

pages of exhibits. MetLife wrote to Gordon’s counsel on July

6, 2010, advising that it was continuing to review the file. 

However, on January 31, 2011, before MetLife’s review was

completed, Gordon filed a complaint pursuant to § 502(a) of

ERISA in the district court.

The district court granted the Plan’s motion for summary

judgment. It concluded that Gordon’s ERISA action was

barred by the applicable four-year statute of limitation, as

well as by the three-year contractual limitation period

contained in the Plan itself. The trial court rejected Gordon’s

arguments that the reopening of her file in 2009 reset the

statute of limitation and that the Plan waived its limitation

defense or was estopped from asserting it. The district court

entered judgment in favor of the Plan. This appeal followed.

II. DISCUSSION

The standard of review applicable here is well known. 

We examine orders granting summary judgment de novo,

viewing the evidence in the light most favorable to the nonmoving party to determine whether any genuine issue of

material fact remains. Coszalter v. City of Salem, 320 F.3d

968, 973 (9th Cir. 2003).
GORDON V. DELOITTE & TOUCHE 7

A. Statute of limitation

There is no federal statute of limitation applicable to

lawsuits seeking benefits under ERISA. Wetzel v. Lou Ehlers

Cadillac Grp. Long Term Disability Ins. Program, 222 F.3d

643, 646 (9th Cir. 2000). We therefore “look to the most

analogous state statute” in the state where the claim for

benefits arose. Id. Here, the state is California, and the most

analogous statute is its four-year statute of limitation

governing actions involving written contracts. Id. at 648. 

The district court concluded that Gordon’s cause of action

accrued on November 4, 2003, and thus that the four-year

statute of limitation barred her suit.

While the statute of limitation is borrowed from state law,

accrual of an ERISA cause of action is determined by federal

law. Id. at 649. Under federal law, “an ERISA cause of

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 has been denied where there

has been “a clear and continuing repudiation of a claimant’s

rights under a plan such that the claimant could not have

reasonably believed but that his benefits had been finally

denied.” Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1031

(9th Cir. 2006) (internal quotation marks and citation

omitted).

Gordon’s claim was denied in the November 4, 2003

MetLife letter which advised Gordon that no disability

benefits would be available to her after March 2, 2003, and

that she would receive one final payment covering the period

of January 2, 2003 through March 2, 2003. The letter

explicitly stated that the last payment was made in a full and
8 GORDON V. DELOITTE & TOUCHE

final settlement of her claim for disability benefits under the

Plan. Gordon argues that the November 4, 2003 letter did not

constitute a final denial because the letter also informed her

of her appeal rights, suggesting that she had further

administrative remedies and that the matter was therefore not

final. Assuming arguendo that the November 4 letter was not

a final denial, because Gordon still had an administrative

appeal option, the letter also stated that the right to appeal

would expire 180 days from November 4, 2003, which meant

on or about May 4, 2004.

We conclude that Gordon’s right to file an ERISA action

accrued no later than May 4, 2004. Gordon did not file the

pending complaint until January 31, 2011. The district court

correctly concluded that Gordon’s ERISA action was barred

by the four-year statute of limitation. That being so, it is

unnecessary to consider whether her complaint is also time

barred under the shorter three-year limitation period set out

in the Plan.

B. Revival of the limitations period

Gordon argues that we should apply California law

regarding acknowledgment of debts to conclude that

MetLife’s reconsideration of her claim in 2009 revived the

statute of limitation. Under California law, “[t]he

acknowledgment of a debt already barred by the statute [of

limitation] gives rise to a new contract and a new cause of

action dating from the acknowledgment.” Eilke v. Rice, 286

P.2d 349, 352 (Cal. 1955) (en banc). However, just as the

accrual of an ERISA cause of action is determined by federal

law, whether it can accrue a second time by virtue of a

revived statute of limitation should also be determined by

federal law.
GORDON V. DELOITTE & TOUCHE 9

Under Ninth Circuit law, MetLife’s reopening of

Gordon’s claim file in 2009 does not in and of itself revive

the statute of limitations. In Martin v. Construction

Laborer’s Pension Trust, 947 F.2d 1381 (9th Cir. 1991), the

plaintiff sought benefits from an employee pension plan

established pursuant to the Labor Management Relations Act

and later amended to comply with ERISA. We concluded

that the action was time-barred and rejected plaintiff’s

argument that the statute of limitation never commenced

because the pension plan agreed to reopen his claim five

years after the denial. Id. at 1384–86. The court noted that

the plan’s initial denial was unequivocal and final, the

administrative remedies were exhausted, and plaintiff did

nothing further for five years. Id. at 1386. It held that there

was no basis for the conclusion that the case was kept open

for five years or that the reopening of the claim commenced

a new statute of limitation. Id.

We believe the policy behind the holding in Martin is

obvious, salutaryand important. Reviving a limitation period

when an insurance company reconsiders a claim after the

limitation period has run would discourage reconsideration by

insurers even when reconsideration might be warranted. We

hold that the statute of limitation was not revived.

C. Estoppel

Gordon contends that the Plan should be estopped from

asserting a statute of limitation defense based on MetLife’s

representation that she could bring an ERISA action. In

certain circumstances, we have recognized the applicability

of estoppel in ERISA cases to prevent an insurance company

from relying on a statute of limitation or contractual

limitation period as a defense. “‘As a general rule, a
10 GORDON V. DELOITTE & TOUCHE

defendant will be estopped from setting up a statute-oflimitations defense when its own prior representations or

conduct have caused the plaintiff to run afoul of the statute

and it is equitable to hold the defendant responsible for that

result.’” LaMantia v. Voluntary Plan Adm’rs, Inc., 401 F.3d

1114, 1119 (9th Cir. 2005) (quoting Allen v. A.H. Robins Co.,

Inc., 752 F.2d 1365, 1371–72 (9th Cir. 1985)).

Here, nothing suggests that Gordon missed the statute of

limitation deadline because she detrimentally relied on any

representation by MetLife. It is true that MetLife represented

in its December 8, 2009 letter that Gordon could bring an

ERISA action, but by then the statute had already run, and so

Gordon could not have relied on that statement to her

detriment.

D. Waiver

Gordon also contends that the Plan waived its statute of

limitation defense based on MetLife’s representation in the

December 2009 letter. Waiver is often described as the

intentional relinquishment of a known right. Intel Corp. v.

Hartford Accident & Indem. Co., 952 F.2d 1551, 1559 (9th

Cir. 1991). Our cases have not yet addressed whether waiver

principles apply to prevent an insurance company from

raising a limitation defense in the ERISA context. In

circumstances where the federal common law is not

developed, courts may turn to state common law for guidance

and apply state law to the extent that it is consistent with the

policies expressed in ERISA. Padfield v. AIG Life Ins. Co.,

290 F.3d 1121, 1125 (9th Cir. 2002).

Turning to California law for guidance, we look to how

waivers of limitation periods are dealt with in the insurance
GORDON V. DELOITTE & TOUCHE 11

context. Under California law, an insurance company cannot

waive the statute of limitations after the limitations period has

run. Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1163 (9th Cir.

1995). In Aceves, the plaintiffs’ claim was time-barred under

their policy, but the plaintiffs argued that the insurance

company waived its limitations defense because it

investigated the claim and confirmed coverage without

mentioning the time bar. The court, applying California law,

stated that the insurance company could not have waived the

one-year statute of limitations: “The California Supreme

Court has observed that if an insurer extends the expiration

date of a one-year suit provision for a claim that the insured

filed and it began investigating ‘after the limitations has run,

[the extension] cannot, as a matter of law, amount to a

waiver.’” 68 F.3d at 1163 (quoting Prudential-LMI Ins. Co.

v. Superior Court, 798 P.2d 1230, 1240 n.5 (Cal. 1990)).

Even if waiver were possible after the limitation period

has run, the availability of waiver in the insurance context is

limited under California law. Typically, waiver analysis

looks only at the acts of the waiving party to see if there was

an intentional relinquishment of a known right, whereas

estoppel looks at the actions of the other party as well to see

if that party detrimentally relied on those acts. Intel, 952 F.2d

at 1559. However, in the insurance context, “the distinction

between waiver and estoppel has been blurred.” Id. “In cases

where waiver has been found, there is generallysome element

of misconduct by the insurer or detrimental reliance by the

insured.” Id. We find that it is consistent with ERISA to

require an element of detrimental reliance or some

misconduct on the part of the insurance plan before finding

that it has affirmatively waived a limitation defense.
12 GORDON V. DELOITTE & TOUCHE

In Thomason v. Aetna Life Insurance Co., 9 F.3d 645 (7th

Cir. 1993), the Seventh Circuit declined to apply waiver

principles in an ERISA case to hold an insurer to its

misleading representations of continued coverage. The court

recognized that waiver is not typically applied without a

showing of reasonable reliance on the part of the non-waiving

party or a showing that there was an exchange of

consideration for the alleged waiver. Therefore, it concluded

that it would not provide a “something-for-nothing kind of

waiver” in an ERISA action, whereby the insurance company

would “be held to the terms of its misleading representations

for no reason other than that it made them.” Id. at 648–49.

Here, Gordon asks the court to hold the Plan to its

representation regarding her right to sue in the December

2009 letter “for no reason other than that it made [it].” We

agree with the Seventh Circuit that waiver requires something

more. As discussed above, there has been no detrimental

reliance by Gordon on the December 8, 2009 letter’s

representation. Nor was any consideration provided to

MetLife for a waiver of its defense. Gordon argues that

consideration came in the form of relief from the demand by

the California Department of Insurance to reopen Gordon’s

case. At most the Department of Insurance only asked

MetLife to administratively reopen the file. It did not

ask—much less require, assuming the unlikely proposition

that it had such power—that MetLife waive its limitation

defense. Furthermore, there is no showing that MetLife acted

unfairly or to its own advantage, something which might

compel the court to apply an equitable waiver to prevent the

Plan from asserting a limitation defense.

Gordon argues that the Plan acted to its own advantage

because it failed to raise the limitations defense when it
GORDON V. DELOITTE & TOUCHE 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 Cir. 2010) and Harlick v. Blue Shield of

California, 686 F.3d 699 (9th Cir. 2012). In Mitchell, we

recognized that the insurer was required to provide the reason

for denying a claim and reference the provision in the policy

that forms the basis for the denial. 611 F.3d at 1199 n.2,

1200. The insurer was therefore unable to argue that the

policy did not provide coverage based upon a different

provision which was not cited in its denial letter to the

claimant. Harlick involved a similar situation, where the

insurance company tried to deny coverage during litigation

based on a provision that it never cited when initially denying

coverage during the administrative process. 686 F.3d at 719.

Such a situation is not present here. The statute of

limitation was never the basis for MetLife’s denial of

Gordon’s claim. The basis was the Plan’s provision that

limits benefits for disabilities stemming from mental health

conditions, and that basis was clearly communicated to

Gordon. While the doctrine of waiver may be applied to

prevent “insurers from denying claims for one reason, then

coming forward with several other reasons after the insured

defeats the first” and to provide “insurers with an incentive to

investigate claims diligently,” such an incentive is not needed

when it comes to statutes of limitation defenses. Aceves, 68

F.3d at 1163–64.

AFFIRMED.
14 GORDON V. DELOITTE & TOUCHE

REINHARDT, Circuit Judge, dissenting:

I cannot agree 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 of

Insurance that it was “reopening [her] claim for further

review,” inviting her once again to undertake its burdensome

review process, and then denying her claim in a letter stating

that “you may appeal this decision [to MetLife] . . . [and in]

the event your appeal is denied in whole or in part, you will

have the right to bring a civil action under [ERISA].” 

(emphasis added). In my view, if the Supreme Court of

California were presented with the question, it would likely

conclude that by its actions Deloitte waived its limitations

defense.1 As that court has observed, “[we] have applied

doctrines of waiver and estoppel to allow [insurance suits]

filed after the limitations period expired to proceed.” 

Prudential-LMI Com. Ins. v. Superior Court, 798 P.2d 1230,

1240 (1990) (emphasis added).2

 

1

 As the majority acknowledges, “[i]n circumstances where the federal

common law is not developed, courts may turn to state common law for

guidance and apply state law to the extent that it is consistent with the

policies expressed in ERISA.” Op. at 10. Here, that rule directs our

attention to California waiver and estoppel law.

2 A waiver occurs “whenever an insurer intentionally relinquishes its

right to rely on the limitations period.” Prudential-LMI, 798 P.2d at 1240. 

“An estoppel arises as a result ofsome conduct by the defendant, relied on

by the plaintiff, which induces the belated filing of the action.” Id. at

689–90 (quotation marks and citations omitted).
GORDON V. DELOITTE & TOUCHE 15

Here, we need look no further than waiver.3 The doctrine

of waiver is grounded in equity. In the insurance context,

California courts have repeatedlyemphasized that equitymay

impose new legal obligations on an insurer after that insurer

reopens a previously denied claim. For example, they have

held that once an insurer decides to reopen such a claim

pursuant to California Code of Civil Procedure § 340.9, the

doctrine of equitable tolling may once again apply. See

Ashou v. Liberty Mut. Fire Ins. Co., 138 Cal. App. 4th 748,

762–63 (Cal. App. 2006) (holding that, under Code of Civil

Procedure Section 340.9, equitable tolling should “apply—in

the context of a previously denied claim—when the insurer

has agreed to reopen and reinvestigate the claim”). The

majority is correct when it reports that courts have not found

waiver where, after the limitations period expired, an insurer

confirmed coverage without informing the insured of the

existence of the limitations bar. See, e.g., Aceves v. Allstate

Ins. Co., 68 F.3d 1160, 1163 (9th Cir. 1995) (holding that the

insurer could maintain a statute of limitations defense to a

claim even after initially confirming coverage and failing to

state that the claim might be time-barred).

The majority goes too far, however, in asserting that

“[u]nder California law, an insurance company cannot waive

the statute of limitations after the limitations period has run.” 

Op. at 11. The cases upon which it relies deal with particular

sets of circumstances not applicable here. Although the

California Supreme Court has not confronted a case like the

one before us, it is likely that it would find a difference,

properly recognized in equity, between failing to inform an

insured about a potential limitations bar while initially

 

3

 For that reason, I do not address the question whether Gordon should

also prevail on the ground of estoppel.
16 GORDON V. DELOITTE & TOUCHE

confirming coverage and actively inviting the insured to

reopen her case, submit new documents, and appeal if

dissatisfied—especially when the insurer falsely advises the

insured that she continues to have the legal right to sue her

insurer under ERISA at the end of the process. Unlike the

cases cited by the majority, this case involves the sort of

intentional, affirmative false representations by an insurer

that gives rise to equitable relief such as waiver or estoppel. 

Certainly it cannot be said that Deloitte risked “surprise[]

through the revival of claims that have been allowed to

slumber” when it voluntarily reopened Gordon’s case at the

behest of the California Department of Insurance and then

falsely told her that if she were ultimately dissatisfied she

would have the legal right to sue to enforce her rights under

ERISA.4 Prudential-LMI, 798 P.2d at 1236 (1990)

(describing the purpose of the statute of limitations).

Accordingly, I conclude that Deloitte waived its

limitations defense and I therefore respectfully dissent.

4 To the extent the majority is correct to hold that there are no

“something-for-nothing” waivers under ERISA, that rule does not control

this case, as Deloitte received the benefits of complying with the request

by the California Department of Insurance that it reopen Gordon’s case.