In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2022

Rita Moreno Gallegos,

Plaintiff-Appellant,

v.

Mt. Sinai Medical Center and UNUM

Life Insurance Company of America,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 97 C 6207--Joan B. Gottschall, Judge.

Argued January 6, 2000--Decided April 27, 2000

 Before Coffey, Flaum and Kanne, Circuit Judges.

 Flaum, Circuit Judge. Rita Moreno Gallegos was

an employee of Mt. Sinai Medical Center ("Mt.

Sinai") who applied for employee welfare benefits

with Mt. Sinai’s insurance carrier UNUM Life

Insurance Company of America ("UNUM"). Her

request for benefits was denied, and Gallegos

filed suit, claiming that this denial violates

the Employee Retirement Insurance Security Act

("ERISA"), 29 U.S.C. sec. 1001, et seq. The

district court granted summary judgment to the

defendants. For the reasons stated below, we

affirm.

I. BACKGROUND

 Gallegos was employed by Mt. Sinai as a

marketing director from 1990 until 1994. Her job

responsibilities included coordinating health

fairs and conducting other marketing activities

in the community. As part of her job she had to

travel frequently throughout the surrounding

area, carry and set-up display equipment, and

stand for significant periods of time. 

 Gallegos was insured under Mt. Sinai’s Employee

Long Term Disability Plan (the "Plan").

Gallegos’s policy (the "Policy") was administered

by Mt. Sinai and underwritten by UNUM. The Policy
provides long-term disability benefits for

employees who meet the Plan’s requirements. The

Plan does not indicate that there are any time

limits for appealing denials of claims. However,

the summary plan description ("Summary Plan")

contains the following statements:

What are your rights under ERISA?

****

5. If your claim for a benefit is denied in whole

or in part you must receive a written explanation

of the reason for the denial. You have the right

to have the Plan review and reconsider your

claim.

6. . . . . If you have a claim for benefits which

is denied or ignored, in whole or in part, you

may file suit in a state or federal court. . . .

The court will decide who should pay court costs

and legal fees. If you are successful the court

may order the person you have sued to pay these

costs and fees. If you lose, the court may order

you to pay these costs and fees, for example, if

it finds your claim is frivolous./1

What if your claim is denied?

In the event that your claim is denied, either in

full or in part, the insurance company will

notify you in writing within 90 days after your

claim form was filed. . . . The insurance

company’s notice of denial shall include:

***

3. The steps to be taken if you or your

beneficiary wish to have the decision reviewed.

What do you do to appeal?

You, the claimant, or your authorized

representative may appeal a denied claim within

60 days after you receive the insurance company’s

notice of denial. . . . 

 On December 16, 1994, Gallegos stopped working

because she suffered from multiple severe medical

conditions including congestive heart failure,

chronic obstructive pulmonary disease, chronic

active hepatitis C, and residual systemic

complications resulting from the chemotherapy

treatment she had received for breast cancer two

years earlier. On July 6, 1995, after it became

apparent that Gallegos would not be able to

return to work, Gallegos made a timely

application for disability benefits under the

Plan. This application was accompanied by a

statement from Gallegos’s physician Dr. Benson
stating that Gallegos’s illnesses prevented her

from performing any non-sedentary occupation. The

application also included a job description

provided by Mt. Sinai indicating that Gallegos’s

current position as director of marketing

frequently required her to travel, stand, walk

and lift or carry equipment weighing 25-50

pounds.

 UNUM initially approved Gallegos’s application

for disability benefits on August 15, 1995. UNUM

awarded Gallegos monthly benefits equivalent to

the amount specified in the Policy minus the

amount that Gallegos was receiving in Social

Security benefits. Gallegos’s Social Security

benefits were terminated in October 1995. On

November 7, 1995, Gallegos reapplied for Social

Security benefits. On November 8, 1995, Gallegos

informed UNUM that her Social Security benefits

had been terminated and requested that her UNUM

insurance disbursement be increased to the full

amount she was entitled to receive because the

amount she had previously received from Social

Security should no longer be deducted. On January

25, 1996, the Social Security Administration

("SSA") denied Gallegos’s reapplication for

benefits, and Gallegos appealed this decision. On

March 7, 1996, UNUM telephoned Gallegos to assess

the status of her Social Security appeal, and

Gallegos informed UNUM that there had been no

ruling as of that date.

 On March 14, 1996, UNUM requested an update

from Dr. Benson on Gallegos’s medical status. On

May 13, 1996, UNUM received a letter and medical

records from Dr. Benson that stated that in order

for Gallegos to return to work she would need

"[n]ew lungs, a new heart and a new liver." Dr.

Benson again stated that Gallegos was able to

perform only sedentary work. The medical records

that accompanied the letter indicated that

Gallegos’s condition had worsened since she had

stopped working in 1994.

 On June 11, 1996 UNUM wrote to Gallegos (the

"June 11 Letter"), informing her that it was

terminating her disability benefits because it

had determined that her occupation of "Marketing

Director" was a sedentary occupation to which she

was eligible to return according to the

information provided by Dr. Benson. The June 11

Letter included the following statements:

 If you have any new, additional information to

support your request for disability benefits,

please send it to [UNUM’s] attention at the above

address.

 If you do not agree with our decision, you may

have it reviewed. Should you desire a review, you
must send a written request, within 60 days of

your receipt of this notice. . . .

 If UNUM does not receive the written request

within 60 days of your receipt of this notice,

our claims decision will be final.

 On April 10, 1997, an SSA administrative law

judge ("ALJ") issued a decision determining that

Gallegos was disabled as of December 16, 1994,

and reinstating her Social Security benefits. On

April 18, 1997, Gallegos’s attorney wrote to UNUM

providing notice of the ALJ’s decision

reinstating Gallegos’s Social Security benefits.

In this April 18 letter, her attorney noted that

the 60-day review period had passed but indicated

that the additional information was only recently

available and could not have been provided to

UNUM before the expiration of the deadline.

 On July 9, 1997, Gallegos’s attorney again

wrote to UNUM requesting that UNUM reopen

Gallegos’s claim based on the ALJ’s determination

that Gallegos was disabled and the attorney’s

contention that Gallegos’s occupation was more

appropriately categorized as "public health

educator," a non-sedentary position, rather than

"marketing director," a sedentary one. On July

31, 1997, UNUM responded in writing that it would

not reopen Gallegos’s claim because she had made

her request for review more than 60 days after

the denial of benefits.

 Gallegos filed suit in federal district court

alleging that UNUM wrongfully denied her benefits

in violation of 29 U.S.C. sec. 1132(a)(1)(B). The

district court entered summary judgment in favor

of UNUM, finding that Gallegos had failed to

exhaust her administrative remedies by not filing

for a review of her claim within the 60-day

deadline outlined in the Summary Plan. Gallegos

now appeals.

II. DISCUSSION

 The text of 29 U.S.C. sec. 1132, providing for

civil actions to redress violations of ERISA,

does not address whether a claimant must exhaust

her administrative remedies before filing suit in

federal court. See Powell v. AT&T Comm., Inc.,

938 F.2d 823, 825 (7th Cir. 1991); Kross v.

Western Elec. Co., Inc., 701 F.2d 1238, 1244 (7th

Cir. 1983). However, it has long been recognized

in this Circuit that the intent of Congress is

best effectuated by granting district courts

discretion to require administrative exhaustion.

See Powell, 938 F.2d at 825; Kross, 701 F.2d at

1244. This policy of judicial administration

furthers the goals of minimizing the number of

frivolous lawsuits, promoting non-adversarial
dispute resolution, and decreasing the cost and

time necessary for claim settlement. See

Lindemann v. Mobil Oil Corp., 79 F.3d 647, 649

(7th Cir. 1996). Furthermore, requiring

administrative exhaustion enables the compilation

of a complete record in preparation for judicial

review. See id.; Powell, 938 F.2d at 826.

Therefore, the district court in this case had

the discretion to require that Gallegos exhaust

the administrative remedies available to her

before being permitted to bring suit in federal

court under 29 U.S.C. sec. 1132. We will overturn

the district court’s decision in this matter only

for a clear abuse of discretion. See Ames v.

American Nat’l Can Co., 170 F.3d 751, 756 (7th

Cir. 1999); Powell, 938 F.2d at 825; Kross, 701

F.2d at 1244. An abuse of discretion is "a

serious error of judgment, such as reliance on a

forbidden factor or failure to consider an

essential factor." Powell, 938 F.2d at 825.

A. Excuse of Failure to Exhaust

 We have held that a plaintiff is excused from

failing to pursue administrative remedies where

1) administrative remedies are not available or

2) pursuing those remedies would be futile. See

Robyns v. Reliance Standard Life Ins. Co., 130

F.3d 1231, 1236 (7th Cir. 1997); Wilczynski v.

Lumbermens Mutual Casualty Co., 93 F.3d 397, 402

(7th Cir. 1996); Smith v. Blue Cross & Blue

Shield United of Wisc., 959 F.2d 655, 658-59 (7th

Cir. 1992)./2 Gallegos does not assert that

attempts to pursue administrative review would

have been futile. However, Gallegos claims that

administrative review procedures were not

adequately provided to her. Gallegos argues that

the denial of her application as time barred is

a denial of access to review that should excuse

her from having to exhaust her administrative

remedies. 

 ERISA regulations permit time limitations on

applications for review that are no less than 60

days. 29 C.F.R. sec. 2560.503-1(g)(3). Failure to

file a request for review within this limitations

period is one means by which a claimant may fail

to exhaust her administrative remedies. See

Smith, 959 F.2d at 658. UNUM provided a clear

statement of the limitations period in both the

Summary Plan and in the June 11 Letter. This

statement is sufficient to satisfy ERISA’s notice

requirement for review procedures. See Ames, 170

F.3d at 756. Thus, UNUM’s denial of Gallegos’s

request for review that was filed beyond the 60-

day time limit does not constitute a denial of

access to administrative review. See id.

B. Estoppel
 Gallegos next argues that UNUM should be

estopped from asserting her failure to exhaust

administrative remedies as a defense to her suit

in federal court. Gallegos argues that statements

in the Summary Plan and June 11 Letter are

misleading in that a plain reading conveys to the

average participant that UNUM’s administrative

review procedure is wholly voluntary and does not

affect the ability of a participant to pursue

relief through the federal court system. Gallegos

contends that the two options for review of her

denied claim were presented as co-equal, not

interdependent. She argues that because UNUM

provided misleading information in the Summary

Plan and the June 11 Letter concerning the

effects of failing to file an administrative

appeal, UNUM should now be estopped from

asserting failure to exhaust administrative

remedies as a defense to her suit under ERISA.

 This Court has repeatedly held that estoppel

may be applied in certain ERISA actions. See

Coker v. Trans World Airlines, Inc., 165 F.3d

579, 585 (7th Cir. 1999) ("This court . . . has

recognized a form of estoppel as a matter of

federal common law in at least some ERISA

cases."); Thomason v. Aetna Life Ins. Co., 9 F.3d

645, 649-50 (7th Cir. 1993); Russo v. Health,

Welfare & Pension Fund, 984 F.2d 762, 767 (7th

Cir. 1993); Vershaw v. Northwestern Nat’l Life

Ins. Co., 979 F.2d 557, 559 (7th Cir. 1992);

Black v. TIC Investment Corp., 900 F.2d 112, 112

(7th Cir. 1990). When determining whether to

apply estoppel, we have considered ERISA’s

prohibition against oral modifications of written

plans and have determined that estoppel in the

ERISA context only applies to written, and not to

oral, misrepresentations. See Thomason, 9 F.3d at

649-50; Decatur Mem’l Hosp. v. Connecticut Gen.

Life Ins. Co., 990 F.2d 925, 927 (7th Cir. 1993);

Russo, 984 F.2d at 767. In addition, while we

have determined that estoppel may be applied to

single-employer unfunded plans, we have expressed

reservations about employing estoppel in other

contexts. See Black, 900 F.2d at 115 (stating

that concerns for the actuarial soundness of

multi-employer funded plans may militate against

applying estoppel in that context).

 The determination of when to apply estoppel "is

not so much a question of statutory

interpretation as a question of public policy."

Black, 900 F.2d at 114. The basic policy

consideration arguing in favor of applying

estoppel is the principle of contract law that "a

party who prevents the occurrence of a condition

precedent may not stand on that condition’s nonoccurrence to refuse to perform his part of the

contract." Swaback v. American Info. Techs.

Corp., 103 F.3d 535, 542 (7th Cir. 1996). We have
applied estoppel principles to ERISA claims where

the claimant was misled by written

representations of the insurer or plan

administrator into failing to take an action that

would have enabled the claimant to receive

benefits under the Plan. See id. at 542-43

(holding that a claimant could proceed with an

ERISA suit in federal court in spite of his

failure to timely elect a lump-sum pension

payment because his failure to elect was a result

of the insurer’s erroneous written statements

that the claimant was ineligible to receive this

type of payment); Meredith v. Allsteel, Inc., 11

F.3d 1354, 1358 (7th Cir. 1993) (finding that

employees who failed to timely elect early

retirement benefits were not barred from suit in

federal court where their failure to elect was

caused by the employer’s misrepresentation that

they were ineligible to receive those benefits),

overruled on other grounds by Ahng v. Allsteel,

Inc., 96 F.3d 1033 (7th Cir. 1996). We have also

applied estoppel in an ERISA suit where the

defendant insurer misrepresented the contractual

limitations period in the plan summary because we

determined that "a defendant whose own activities

made the plaintiff miss the deadline should [not]

be allowed to litigate over whether the plaintiff

could have sued earlier." Doe v. Blue Cross &

Blue Shield United of Wisc., 112 F.3d 869, 876

(7th Cir. 1997).

 The administrative exhaustion requirement is not

intended to place a meaningless procedural hurdle

in front of plaintiffs who desire to bring claims

for violations of their rights under ERISA in

federal court. Such a purpose would contravene

the express intent of the ERISA statute to

"protect . . . the interests of participants in

employee benefits plans . . . by . . . providing

. . . ready access to the Federal courts." 29

U.S.C. sec. 1001(b). Rather, the requirement is

aimed at encouraging claimants to pursue private

remedies and develop a proper administrative

record before entering federal court. Allowing an

insurance company to mislead a claimant into

procedurally defaulting her opportunity for

administrative review would contravene the

purpose behind requiring administrative

exhaustion. Furthermore, where a limitations

period is imposed by a contract rather than by

statute, the public policy considerations that

typically weigh in favor of strict enforcement of

the limitations period do not apply. See Doe, 112

F.3d at 877. This is especially true where one of

the parties to the agreement "does something that

makes it inequitable to hold the other party to

the shortened period" because then "there is no

social interest in preventing the period from

being enlarged." Id. Therefore, we hold that

estoppel may be applied to preclude the assertion
of failure to exhaust administrative remedies as

a defense where that failure results from the

claimant’s reliance on written misrepresentations

by the insurer or plan administrator./3

 In this case, Gallegos alleges that UNUM made

misleading representations in the Summary Plan

and June 11 Letter concerning the consequences of

her failure to pursue an administrative appeal.

We interpret an ERISA plan summary with its plain

meaning as understood by an average person. See

29 U.S.C. sec. 1022(a) ("The summary plan

description . . . shall be written in a manner

calculated to be understood by the average plan

participant."); Swaback, 103 F.3d at 540-41.

ERISA summary plan descriptions are required to

be "sufficiently accurate and comprehensive to

reasonably apprise such participants and

beneficiaries of their rights and obligations

under the plan." 29 U.S.C. sec. 1022(a). This

description must include "the remedies available

under the plan for the redress of claims which

are denied in whole or in part (including

procedures [for administrative review])." 29

U.S.C. sec. 1022(b); see 29 U.S.C. sec. 1021(a).

 In this case, UNUM attempted to comply with the

requirements of ERISA by informing Gallegos of

her options to pursue relief of the denial of her

claim through UNUM’s administrative review

procedure as well as through the federal court

system. Gallegos asserts, however, that what UNUM

did not tell her was that if she elected not to

pursue an administrative review of her claim,

UNUM would use this choice as a defense against

her in any subsequent federal suit. We agree with

Gallegos that the use of phrases such as "you may

have [your claim] reviewed," "should you desire

a review," "if you . . . wish to have the

decision reviewed," and "you . . . may appeal,"

given their plain meaning, indicate that a plan

participant has the opportunity to participate in

a voluntary, rather than mandatory, review

procedure. The only penalty mentioned for failure

to submit to administrative review is that the

claims decision will become "final." There is no

indication that this "finality" may have

consequences for the bringing of a suit in

federal court, an option which the claimant is

also informed she "may" pursue. A natural reading

of the plain language of the Summary Plan and

June 11 Letter is that both a court suit and an

administrative appeal are voluntary options for

review of a denial of a claim. The administrative

appeal has a limitations period of 60 days from

the denial of the claim, and the limitations

period for a court suit, while not defined in the

Summary Plan, is stated in the Plan as three

years from the time when proof of a claim is

required.
 In Black v. TIC Investment Corp., we held that

a plan administrator’s written representation to

the claimant that his benefits would be

forthcoming upon completion of bankruptcy

proceedings estopped the administrator from

contesting the claim because "[n]o fair reading

of the language would give a casual reader notice

that [the defendant] intended to contest any

claim." 900 F.2d at 116. We concluded that if the

claimant could demonstrate that he relied to his

detriment on the defendant’s implied

representation that it would not contest his

claim to benefits, the defendant was estopped

from contesting the claim. Id. Similarly, in this

case, a casual reader of the Summary Plan would

not be put on notice that an insured’s election

not to pursue administrative remedies would be

used by UNUM as a defense to a suit brought in

federal court. 

 However, "[a]n estoppel arises when one party

has made a misleading representation to another

party and the other has reasonably relied to his

detriment on that representation." Black, 900

F.2d at 115; see Russo, 984 F.2d at 768;

Thomason, 9 F.3d at 648. Thus, Gallegos must also

demonstrate that she relied to her detriment on

UNUM’s representations. See Swaback, 103 F.3d at

543 (finding that a claimant must show that "but

for" the misrepresentations of the insurer he

would have met the deadline imposed by the

insurance contract). Gallegos must show that,

based upon the representations made by UNUM, she

thought that the two options for reviewing the

denial of her claim--a federal court suit or an

administrative appeal--were equally available to

her, and she must also show that she chose to

pursue the route of a court suit rather than

administrative review, unaware that this choice

was potentially fatal to her ability to receive

any review of the denial of her claim. 

 We conclude that Gallegos has not demonstrated

that she relied on UNUM’s representations to her

detriment because she has not shown that but for

UNUM’s representations she would have filed an

administrative appeal within the 60-day

limitations period. Gallegos asserts that she was

unrepresented by counsel at the time her claim

was denied, and, therefore, that she was unable

to know that one of the potential consequences of

failing to pursue an administrative appeal was

that she may also be barred from bringing suit to

assert her rights under ERISA. However, she does

not allege that she allowed the time for her

appeal to lapse because she had chosen to pursue

relief from the denial of her claim through a

federal court suit rather than administrative

review. If anything, Gallegos’s contentions
support the conclusion that during the 60-day

limitations period she elected not to appeal her

claim at all, not that she elected to pursue an

avenue of relief with a longer statute of

limitations. 

 We find that while the presentation of the

options for review of denied claims in UNUM’s

Summary Plan and June 11 Letter was misleading,

Gallegos did not rely on any of UNUM’s misleading

statements in deciding not to pursue an

administrative appeal within the 60-day deadline.

Therefore, UNUM is not estopped from asserting

failure to exhaust administrative remedies as a

defense to Gallegos’s suit in federal court, and

the district court did not abuse its discretion

by granting summary judgment to UNUM on this

basis.

III. CONCLUSION

 For the reasons stated herein, we Affirm the

district court’s grant of summary judgment in

favor of the defendant.

/1 The Plan provides the following information:

Can legal proceedings be started at any time?

No, you or your authorized representative cannot

start any legal action:

1. until 60 days after proof of claim has been

given; nor

2. more than 3 years after the time proof of claim

is required.

/2 Gallegos raised before the district court several

other reasons why administrative exhaustion

should not be applied in her case. Gallegos does

not argue those additional contentions on appeal,

and we consider them waived.

/3 For purposes of this opinion, we assume that this

case involves a single-employer unfunded plan,

and we again decline to reach the question of

whether estoppel may be applied outside of this

context.