In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2531

ALBERT G. ABENA, D.D.S.,

Plaintiff-Appellant,

v.

METROPOLITAN LIFE INSURANCE

COMPANY and AMERICAN DENTAL

PARTNERS, INCORPORATED,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 06 C 495—Rudolph T. Randa, Chief Judge.

ARGUED JANUARY 23, 2008—DECIDED SEPTEMBER 16, 2008

Before MANION, ROVNER and EVANS, Circuit Judges.

ROVNER, Circuit Judge. Albert G. Abena worked as a

dentist for American Dental Partners, Inc. (“American

Dental”) from 1993 until he became disabled in 2000. He

applied for long term disability benefits under a plan

sponsored by his employer and administered by Metro-
2 No. 07-2531

“Disability” is a defined term in the Plan. 

1

politan Life Insurance Co. (“MetLife”), which was also

the plan fiduciary. MetLife initially approved the claim

and paid Abena benefits under the plan for approximately

two years. After learning that Abena was employed at a

new job, MetLife re-evaluated his disability status and

determined that he no longer was disabled under the

plan’s definition. MetLife terminated Abena’s benefits as

of the date the company determined he no longer was

disabled. After pursuing internal remedies to challenge

the termination, Abena filed suit in the district court in

2006. The district court concluded that the suit was not

timely filed and granted summary judgment in favor of

the defendants. Abena appeals and we affirm.

American Dental sponsored a Long Term Disability

Benefits Plan (“Plan”) for eligible employees. Under the

Plan, employees who became disabled were paid benefits

following an “Elimination Period” which began on the

day the employee became disabled and ended after

ninety continuous days of disability. An employee

wishing to claim benefits was required to supply a “proof

of Disability” within three months after the end of the

Elimination Period. The employees were thus required to 1

file the proof of Disability within three months plus

ninety days of the onset of the Disability, or within approximately six months. The Plan also provided limitations for legal actions related to the Plan:

No legal action of any kind may be filed against us:
No. 07-2531 3

1. within the 60 days after proof of Disability has

been given; or

2. more than three years after proof of Disability must

be filed. This will not apply if the law in the area

where you live allows a longer period of time to

file proof of Disability.

R. 24, at D 0319.

Abena worked for American Dental from 1993 through

December 4, 2000. On October 23, 2000, Abena submitted

a claim to American Dental for long term disability benefits, asserting that his disability commenced on May 16,

2000. American Dental forwarded the claim to its Plan

administrator and fiduciary, MetLife, on November 8, 2000.

On March 1, 2001, after reviewing the claim, MetLife

approved Abena’s claim and granted benefits retroactive

to August 15, 2000, the end of the Elimination Period. At

some point, American Dental learned that Abena was

again working as a dentist. The company passed this

information on to MetLife, and on January 15, 2002,

MetLife informed Abena that it intended to review his

continued eligibility for benefits. MetLife requested that

Abena supply additional information about his disability

and also conducted an investigation into Abena’s health

status, which included video surveillance and a review of

his records by an independent physician. After the review

process, MetLife notified Abena on August 8, 2002 that he

no longer met the Plan’s definition of Disability. Abena’s

benefits were therefore terminated as of August 9, 2002. On

January 14, 2003, Abena appealed MetLife’s decision

through an internal appeals process. MetLife ordered
4 No. 07-2531

another independent physician review of Abena’s file, and

on April 16, 2003 affirmed its decision to terminate his

benefits.

On April 17, 2006, Abena filed this ERISA suit against

American Dental and MetLife, claiming entitlement to

disability benefits after the August 9, 2002 termination

date. The defendants moved for summary judgment on

two grounds. First, they asserted that the decision to

terminate benefits was not arbitrary or capricious but

rather was a reasonable determination supported by

substantial evidence in the administrative record. Second,

they argued that Abena failed to file the law suit within

the time limitation prescribed by the Plan. The district

court granted summary judgment in favor of the defendants, agreeing that the suit was untimely. The court did

not reach the merits of the dispute. Abena appeals.

The district court relied on our decision in Doe v. Blue

Cross Blue Shield United of Wisconsin, 112 F.3d 869 (7th Cir.

1997), in finding the suit untimely. In Doe, the plaintiff

sought treatment for obsessive compulsive disorder in

1989. His employer-sponsored health insurance plan

initially paid for his psychiatric treatment but later

stopped paying and formally denied coverage. On

August 17, 1990, Blue Cross, the plan administrator,

notified Doe that it would not pay for any psychiatric

treatment rendered after December 1, 1989. On September 27, 1994, after completing an internal appeals process,

Doe sued to recover benefits for treatment provided to

him between December 1989 and May 31, 1991. As with

the Plan in Abena’s action, Doe’s plan limited the time-
No. 07-2531 5

Abena misconstrues the plan in Doe, arguing that the period 2

of limitations there did not begin to run until continuing

benefits had been denied, not when the initial proof of claim

had to be filed. On the contrary, the period of limitations in

Doe’s plan was triggered by the provision of services for

which benefits were sought. A claimant was required to file a

written proof of loss within ninety days of the date of the

service, and was required to file suit within three years after the

(continued...)

frame in which suits could be filed. Doe’s plan provided

that “no legal action may be commenced . . . later than

three (3) years from the time written proof of loss was

required to be filed. Written proof of loss must be filed

within ninety (90) days of the date of service. This means

that any legal action must be commenced within thirtynine (39) months of the first date of services on which the

action is based.” Doe, 112 F.3d at 872-73. The district court

read this provision to mean that, for Doe to recover all of

the benefits he was seeking, he was required to sue by

March 1993, thirty-nine months after the December 1989

psychiatric services he received. The court also concluded that the last day on which he could sue for any

benefits was August 29, 1994, a date that fell thirtynine months after May 31, 1991, the final date on which

services were rendered. Another provision in Doe’s plan

prohibited suits from being filed until the exhaustion of

the claimant’s internal remedies. For Doe, that process

lasted until September 25, 1991, leaving seventeen

months left in the contractual limitations period before

the March 1993 cut-off date to sue for full benefits.2
6 No. 07-2531

(...continued) 2

written proof of loss was required to be filed. See Doe, 112 F.3d

at 872-73. Obviously, if benefits were granted for certain

services, there would be no reason to file suit, and when

benefits were denied, the limitations period ran from ninety

days after the time proof of loss was required to be filed for

that particular service. There is no real difference between

the operation of the plan in Doe and the Plan under which

Abena sought benefits.

We observed that ERISA contains no statute of limitations, and that the usual practice in that instance is to

borrow the limitations period of the most closely

analogous state or federal statute. We also noted the

prevailing rule in contract law that contractual limitations

periods that are shorter than the statutory period are

permissible, provided they are reasonable. Doe, 112 F.3d at

874. We adopted that prevailing rule and held that contractual limitations, if reasonable, are enforceable in suits

under ERISA, regardless of state law. 112 F.3d at 875. We

deemed the thirty-nine month period reasonable in

general and under the circumstances of Doe’s case. Even

though the internal appeals process was protracted, the

employee, who was represented by counsel throughout

the process, still had seventeen months in which to

bring the suit before the period expired. We likened a suit

under ERISA, following the completion of an internal

appeals process, to a suit to set aside an administrative

decision, an action that typically must be filed within

thirty or sixty days of the decision. 112 F.3d at 875. A

seventeen month period was therefore more than suf-
No. 07-2531 7

ficient to meet the standard of reasonableness. We also

remarked that the doctrine of equitable estoppel would

protect ERISA claimants and would discourage plan

administrators from dragging on the internal appeals

process in order to shorten the time left for filing suit. Doe,

112 F.3d at 876.

Applying Doe to Abena’s situation, the district court

found that the Plan required a participant to file suit no

later than three years from the time proof of Disability was

required to be filed. The Plan, in turn, required that proof

of Disability must be filed no later than three months

after the Elimination Period. The Elimination Period is the

ninety days of continuous Disability following the onset

of the Disability. The district court calculated that Abena’s

Elimination Period ended on August 15, 2000. He was

required to submit his proof of Disability by November 15,

2000, and should have filed any law suit by November 15,

2003. Because Abena did not file the suit until April 17,

2006, the suit was not timely. The court noted that MetLife

did not complete the internal appeals process until

April 16, 2003, but Abena still had seven months in which

to file suit before the November 15, 2003 contractual

deadline. Under Doe, the district court reasoned that seven

months was a reasonable amount of time in which to

file the suit, and granted summary judgment in favor of

the defendants.

Our review of that judgment is de novo. Darst v. Interstate

Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). Abena

argues that Doe is factually distinguishable and not controlling in his case. Abena points out that his claim
8 No. 07-2531

initially was approved and he was paid for two years

before the Plan administrator decided to terminate benefits. In that circumstance, Abena argues, a three-year

limitations period is unreasonable. After all, Abena points

out, a plan could pay benefits for three years and then

stop paying without any recourse for the employee. Abena

also points out that the contractual period of limitations

appears in a section titled “Claims” and contends that it

should apply only to the initial claim decision and not to

subsequent terminations of claims. Instead, he maintains,

the Wisconsin statute of limitations for contract claims

should apply. Because the Wisconsin statute provides

for a six-year period, he argues that his suit was timely.

It is true that the manner in which the Plan sets the

limitations period is better suited to the initial claim

decision than it is to claims that are initially granted and

subsequently terminated, but that fact is not controlling.

A poorly drafted contract term is still a contract term.

This contract term allows three years from the time the

proof of Disability must be submitted in which to file

suit. Under Doe, a contractual limitations period is enforceable in an ERISA action so long as it is reasonable. 112

F.3d at 874-75. See also White v. Sun Life Assurance Co. of

Can., 488 F.3d 240, 250 (4th Cir.), cert. denied, 128 S. Ct. 619

(2007) (agreeing with Doe that ERISA affords plans the

flexibility to set contractual limitations periods of varying

lengths); Wilkins v. Hartford Life & Accident Ins. Co., 299

F.3d 945, 948 (8th Cir. 2002) (upholding a contractual

limitations period in an ERISA plan so long as it is not

unreasonably short); Northlake Reg’l Med. Ctr. v. Waffle

House Sys. Employee Benefit Plan, 160 F.3d 1301, 1303 (11th
No. 07-2531 9

Cir. 1998) (agreeing with Doe that contractual limitations

periods in ERISA actions are enforceable, regardless of

state law, provided they are reasonable). We can certainly

imagine circumstances in which the application of this

provision would not be reasonable. For example, if the

employer paid the claim for three or more years and then

terminated payments, it would be unreasonable to

enforce a limitations period that ended before the claim

could have even accrued. Or if the appeals process was

so protracted that the claimant was unable to file suit

within the contractual period, the application of this

provision would not be reasonable. But that is not what

happened here. Even though the claim initially was

granted and then terminated two years later, Abena still

had seven months following the conclusion of the internal

appeals process in which to file his suit in the district court.

By his own admission at oral argument, there was no

reason he could not file his suit during that time. Indeed,

he was represented by counsel during that time. In

these circumstances, application of the contractual limitations period is not unreasonable.

Nor are we persuaded that the placement of the contractual limitations period in a section titled “Claims”

should change the outcome. The provision clearly states

that “[n]o legal action of any kind may be filed against” the

Plan after the limitations period. This language is broad

enough to cover both initial denials of claims and claims

that initially are granted and then later are terminated.

Again, the Plan language is not particularly well suited to

claims which are initially granted and then later terminated. A limitations period that begins when the
10 No. 07-2531

internal appeals process ends would be easier to apply

to all kinds of claims, but we are not here to rewrite the

Plan. Our task is to determine whether application of the

contractual limitations period is reasonable in these

circumstances. We agree with the district court’s conclusion that it is. The judgment of the district court is therefore

AFFIRMED.

9-16-08