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August 10, 2005.


The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Before the Court are two motions: (1) plaintiff George Moskowite's motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, and (2) defendant Everen Capital Corporation Group Disability Income Plan's motion for summary judgment or, in the alternative, summary adjudication, pursuant to Rule 56. Having considered the papers filed in support of and in opposition to the motions, the Court hereby rules as follows.*fn1


  On October 24, 1997, plaintiff filed with defendant a claim form, seeking long-term disability benefits under an employee benefits plan, available through plaintiff's then-employer, Everen Securities. (CF 1023.)*fn2 In order to be eligible for long-term benefits under the plan, the claimant must be "disabled," which is defined in the plan as follows:
i. If the Covered Person is eligible for 24 Month Own Occupation Benefit, "Disability" or "Disabled" means during the Elimination Period and the next 24 months of Disability the covered Person is unable to perform all the material and substantial duties of his occupation on an Active Employment basis because of an Injury or Sickness; and
ii. After 24 months of benefits have been paid is unable to perform, with reasonable continuity, all of the material and substantial duties of his own or any other occupation for which he is or becomes reasonably fitted by training, education, experience, age and physical and mental capacity.
(Gray Decl. Ex. A at P-006.)

  On the claim form, plaintiff stated his impairments began March 10, 1996 as a result of an automobile accident, and that his last date of employment had been April 28, 1997. (CF 1023.) In an accompanying Physician's Statement, S.I. Spreiter, M.D., described plaintiff's diagnosis as "Thoracic Disc Syndrome[;] Depression." (CF 1024.)

  On January 6, 1998, defendant approved plaintiff's claim for long-term disability benefits, effective October 24, 1997, based on a finding plaintiff was unable to perform the duties of his occupation. (CF 961-962.) Thereafter, on July 6, 2000, defendant informed plaintiff by letter that defendant was discontinuing his long-term disability benefits, effective July 7, 2000. (CF 95-101.) On July 19, 2005, plaintiff's wife, on behalf of plaintiff, requested that defendant review the decision to discontinue benefits. (Gray Decl. Ex. G at G-4.)

  On January 3, 2001, defendant informed plaintiff that it was adhering to its decision to discontinue plaintiff's long-term disability benefits. (CF 80-84.) On October 23, 2003, plaintiff filed the instant action, alleging in his complaint that, pursuant to the Employee Retirement Income Security Act ("ERISA"), he is entitled to benefits under the plan. DISCUSSION

  The motions for summary judgment address defendant's limitations defenses, plaintiff's argument as to estoppel, and the appropriate standard for reviewing the merits of plaintiff's claim for benefits.*fn3 The Court addresses these issues, in turn.

  A. Limitations Defense

  In its answer, defendant alleges as its Fifth Affirmative Defense that plaintiff's ERISA claim is barred by "legal and contractual statute[s] of limitations." (See Answer, filed December 8, 2003, at 4:28-5:5.) Plaintiff argues that defendant cannot establish either component of its limitations defense.

  1. Statute of Limitations

  "[I]n ERISA actions the federal courts employ a state statute of limitations." Wang Laboratories, Inc. v. Kagan, 990 F. 2d 1126, 1128 (9th Cir. 1993) (internal quotation and citation omitted). "The limitations period applicable to ERISA claims is the one for breach of written contract." Id. Where an ERISA plan includes a choice of law provision, the selected forum's statute of limitations for breach of written contract applies. See id. at 1129.

  Here, the plan contains a provision expressly stating that the plan is governed by Illinois law. (See Gray Decl., filed October 8, 2004, Ex. A at 1.) The Illinois limitations period for an action on a written contract is ten years. See Jenkins v. Local 705 Int'l Brotherhood of Teamsters Pension Plan, 713 F. 2d 247, 251 n. 6 (7th Cir. 1983) (citing Ill. Rev. Stat. ch. 110, § 13-206). The earliest date that plaintiff's claim could have accrued was July 6, 2000, when he was first informed that defendant was discontinuing his benefits. Because plaintiff filed the instant action within ten years of July 6, 2000, his claim is not barred by the statute of limitations. See id. at 254 (holding ERISA claim not time-barred, where plaintiff filed complaint within ten-year Illinois statute of limitations for action on written contract).

  Accordingly, plaintiff is entitled to summary judgment on the Fifth Affirmative Defense, to the extent it is based on the statute of limitations.

  2. Contractual Limitations

  The plan, in a section titled "Legal Proceedings," includes a provision limiting the time within which a claimant can institute legal action: "A claimant or the claimant's authorized representative cannot start any legal action: 1. until 60 days after proof of claim has been given; nor 2. more than one year after the time proof of claim is required." (See Gray Decl., filed October 8, 2004, Ex. A at 28.) Additionally, in a section titled "Notice and Proof of Claim," the plan provides that "[p]roof of continued [d]isability . . . must be given to [defendant] within 30 days of the request for the proof." (See id. Ex. A at 27.)

  The Ninth Circuit, in Mogck v. Unum Life Ins. Co., 292 F. 3d 1025 (9th Cir. 2002), interpreted a contractual limitation provision indistinguishable in any material respect from the provision at issue herein,*fn4 and held that where a claimant seeks "continued disability benefits, not initial disability benefits," the district court, "in order to determine when the contractual limitation period began, ? must first determine when" the plan administrator made "a `request for the proof,'" or asked for "a `proof of claim.'" See id. at 1028 (emphasis in original). A contractual limitation period does not begin to run until the plan administrator utilizes the specific terms set forth in the limitation provision. See id. at 1028-29 (stating plan administrator "must utilize those basic terms and procedures "in order for the policy provision to be triggered"). Thus, in Mogck, where the plan administrator notified the claimant that benefits were being terminated, and stated that the claimant could submit "new additional information to support [his] request for disability benefits" and request review of the denial, see id. at 1027, but did not utilize the plan terms "proof," "request for the proof" or "proof of claim," the "time limitation provision was never rendered operative," see id. at 1028-29.

  Here, defendant argues that the sixth page of its July 6, 2000 letter to plaintiff, by which letter defendant informed plaintiff he was no longer eligible for long-term disability benefits, (see CF 100), constituted the requisite "request for the proof" or request for "proof of claim" to trigger the running of the one-year contractual limitation period. The cited page advised plaintiff of his right under ERISA to "request a review," and informed plaintiff that such request must "state the reasons" plaintiff believed his benefits should not be discontinued. (See CF 100.) Additionally, in discussing the content of such a request for review, the letter, at that page, stated: "Include documentation such as diagnostic test results, neurosurgical consultations, psychiatric consultations, neuropsychological test results, psychotherapy records, Physical Therapy records or other objective medical information which you think will support your claim." (See id.) Neither the sixth page of the July 6, 2000 letter nor any other part of the letter, however, utilizes the plan language; in other words, defendant never made a "request for the proof" or asked for "proof of claim." (See id.) Consequently, "the policy's time limitation provision was never rendered operative." See Mogck, 292 F. 3d at 1028-29; see also Skipper v. Claims Service Int'l, 213 F. Supp. 2d 4, 8 (D. Mass. 2002) ("It would be ridiculous, and grossly unfair, to suggest that defendants' mere expression of a willingness `to review pertinent additional information,' [as stated in the letter terminating benefits], should be construed as a request for `proof of loss' or as notice of the commencement of the [contractual] limitation period.") As a result, the language included in defendant's July 6, 2000 letter is, as a matter of law, insufficient to trigger the running of the one-year contractual limitations period.

  Accordingly, plaintiff is entitled to summary judgment on the Fifth Affirmative Defense, to the extent it is based on ...

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