UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-1656

DONNA MIRABILE,

Plaintiff - Appellant,

v.

LIFE INSURANCE COMPANY OF NORTH AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Raymond A. Jackson, District

Judge. (2:06-cv-00573-RAJ)

Submitted: August 11, 2008 Decided: August 21, 2008

Before TRAXLER and GREGORY, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael F. Leban, LEBAN AND ASSOCIATES, P.C., Virginia Beach,

Virginia, for Appellant. John C. Lynch, TROUTMAN SANDERS LLP,

Virginia Beach, Virginia; Jon S. Hubbard, TROUTMAN SANDERS LLP,

Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Donna Mirabile appeals the district court’s order

granting a motion for summary judgment filed by Life Insurance

Company of North America (“LINA”) and dismissing Mirabile’s action

challenging termination of her disability benefits. Because the

policy at issue is an employee welfare benefit plan, the action is

governed by the Employee Retirement Income Security Act (“ERISA”),

29 U.S.C. §§ 1001 - 1461 (2000). We have reviewed the record and

find no reversible error.

Mirabile claims the district court erred when it

dismissed her case as time—barred. We review de novo a district

court’s order granting summary judgment, viewing the facts in the

light most favorable to the nonmoving party. Holland v. Washington

Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007), cert. denied, 128

S. Ct. 955 (2008). As ERISA does not contain a statute of

limitations governing private causes of action for benefits, courts

must look to the most analogous state statute of limitations. See

White v. Sun Life Assur. Co. of Canada, 488 F.3d 240, 245 (4th Cir.

2007) (citing Wilson v. Garcia, 471 U.S. 261, 266-67 (1985)). 

The district court applied Va. Code Ann. § 38.2-314

(2007), which invalidates any provision in any insurance policy

limiting the time within which to bring an action on the policy to

a period of less than one year. Mirabile’s long-term disability

policy with LINA (“the Policy”) stated that any legal action had to
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be brought within three years of accrual of the claim. The Policy

also contained a clause that extended any time limit to agree with

the minimum limitations period permitted by the law of the state of

residence.

Mirabile argues the district court should have applied

the five-year statute of limitations for actions under a written

contract in Va. Code Ann. § 8.01-246(2) (2007). She contends that

because the Policy’s three-year period is less than the five—year

period permitted by § 8.01-246(2), the Policy’s extension clause

should extend the limitations period to agree with § 8.01-246(2).

We find, however, that § 38.2-314, not § 8.01-246(2), dictates the

appropriate limitations period for insurance contracts. Section

38.2-314 sets the minimum limitations period allowed in Virginia

for filing suit on an insurance contract at one year. See Ramsey

v. Home Ins. Co., 125 S.E.2d 201, 202 (Va. 1982) (purpose of

predecessor to § 38.2-314 is “to provide a limitation upon the

minimum time for bringing suit” to one year). As the Policy’s

three—year limitation period is greater than the one—year minimum

in Virginia, the extension clause did not apply; consequently the

applicable limitations period is the three—year period set forth in

the Policy.

“‘An ERISA cause of action does not accrue until a claim

of benefits has been made and formally denied.’” White, 488 F.3d

at 246 (quoting Rodriguez v. MEBA Pension Trust, 872 F.2d 69, 72
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(4th Cir. 1989)). Mirabile’s claim accrued on May 31, 2002, when

LINA upheld its earlier decision to terminate her benefits.

Mirabile filed suit on September 11, 2006, over four years after

the accrual of her claim and beyond the applicable three-year

limitations provision contained in the Policy. Therefore, the

district court did not err when it granted LINA’s motion for

summary judgment and dismissed Mirabile’s claim as time—barred.

Accordingly, we affirm the judgment of the district

court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED