Pierce v . Metropolitan Life I n s . C o . CV-03-435-JD 03/05/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Anne “Juni” Pierce

v. Civil N o . 03-435-JD Opinion N o .

Metropolitan Life Insurance Company

O R D E R

On August 2 0 , 2003, Anne “Juni” Pierce filed suit against

her insurer, MetLife, alleging that it had wrongfully stopped

making its monthly disability benefit payments to her as of

July 1 0 , 1999. Given the more than three years between these

two dates, MetLife has moved to dismiss the action on statute

of limitations grounds. Pierce objects under alternative

theories: first, that MetLife’s cessation of its monthly

benefit payment causes her claim to re-accrue each month the

payment was withheld, and second, that MetLife’s lack of

responsiveness to her correspondence in the wake of the

termination of her benefits tolled the running of the statute.

Background

The facts set forth in Pierce’s complaint are as follows.

She became disabled on March 1 0 , 1 9 9 7 , and remains “subject to

medical disabilities” in the form of pain and a limited range of motion in her right knee. As the beneficiary of a policy

of disability insurance issued by MetLife, Pierce began

receiving a disability payment in the approximate amount of

$1,600 on the 10th of each month beginning on June 1 0 , 1997.

The policy requires MetLife to continue making these payments

for a certain period, depending on Pierce’s age at the time she became disabled and provided she remains totally disabled

within the meaning of the policy. Pierce received the last of

the payments on June 1 0 , 1999. At that point, MetLife stopped

making the payments “without just cause” and “has continued to

neglect, fail, and refuse to pay [Pierce] the benefits to

which she is entitled.” Pierce seeks both a monetary award in

the form of the payments withheld by MetLife to date, plus

enhanced damages and attorneys’ fees, and a declaration that

MetLife must resume the payments. In opposing MetLife’s motion to dismiss, Pierce submitted

an affidavit which contains the following additional facts.

After the payments from MetLife stopped, Pierce exercised her

right under the policy to appeal the denial of further

benefits. In a letter dated July 1 9 , 1999, MetLife informed

Pierce that her appeal had been denied. The letter stated

that “no further administrative appeals are available to you

concerning your disability benefit” and advised Pierce to

2 consult the information concerning her rights set forth in the

summary plan description if she wished to pursue the matter

further.

After the denial of her appeal, Pierce attempted to

contact MetLife for an explanation of its reason for cutting

off her benefits. Her efforts in this regard consisted

largely of a series of letters sent to the insurer between

January 1 8 , 2000, and December 1 0 , 2002. While Pierce’s

correspondence primarily takes issue with MetLife’s stated

reasons for denying her appeal, she also makes repeated

requests for a response and references to the fact that one

has not been forthcoming. In a letter of February 3 , 2001,

Pierce cites to a television news program about how insurance companies terminate benefits they are obligated to pay. . . . The insurance companies do not even reply to repeated requests for fair play. They just do not communicate with the person who has been denied benefits, hoping that person will give u p . The only choice the person has is to hire a lawyer.

Most of Pierce’s subsequent letters express an intention to

hire a lawyer or go to court if MetLife does not restore her

benefits.

Pierce does not claim that MetLife ever responded to any

of her correspondence. Instead, she asserts that she “was

never advised by MetLife that any statute of limitations was

3 running” and that she was thereby “tricked into believing that

[she] was in no danger of waiving any legal rights by

MetLife’s silence” even though she “had specifically asked for

guidance from the trustees of the benefit plan on whether

[she] needed a lawyer.” Pierce ultimately retained counsel

and commenced suit against MetLife in Hillsborough County Superior Court on August 2 0 , 2003. MetLife removed the case

to this court on diversity grounds.

Standard of Review

Pierce relies on materials beyond the complaint,

including her affidavit and a number of attached documents, in

opposing MetLife’s motion to dismiss. In its reply brief,

MetLife has availed itself of the opportunity to respond to

these materials. Accordingly, the court will treat MetLife’s

motion to dismiss as a motion for summary judgment,

considering Pierce’s affidavit and the accompanying exhibits

in making its decision. See Collier v . City of Chicopee,

0 1 , 603-604 (1st Cir. 1 9 9 8 ) .

The court may grant a motion for summary judgment only if

the “pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

4 that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 5 6 ( c ) . The party seeking summary

judgment bears the initial burden of establishing the lack of

a genuine issue of material fact. See Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The court must view the

entire record in the light most favorable to the plaintiff, “‘indulging all reasonable inferences in that party’s favor.’”

Mesnick v . General Elec. C o . ,

1 6 , 822 (1st Cir.

1991) (quoting Griggs-Ryan v . Smith,

1 2 , 115 (1st

Cir. 1990)).

Discussion

The parties agree that the statute of limitations issues

presented by this case should be resolved under New Hampshire

law. 1 The New Hampshire statute of limitations generally

requires an action to be commenced within three years of the

act or omission of which the plaintiff complains. N.H. Rev.

1 Although the parties’ submissions suggest that Pierce received her disability insurance through an employee benefit plan, neither argues that the Employee Retirement Income Security A c t ,

et seq., has any effect on the outcome of this motion. C f . Bennett v . Federated Mut. I n s . C o . ,

3 7 , 838 (8th Cir. 1998) (applying state statute of limitations to claim for benefits under ERISA but federal law to determine when cause of action accrued).

5 Stat. Ann. § 508:4, I . The limitations period on a contract

action begins running at the time of the alleged breach.

Coyle v . Battles,

8 , 100 (2001); Bronstein v . GZA

GeoEnvironmental, Inc.,

5 3 , 255 (1995).

Pierce does not dispute that more than three years

elapsed between when MetLife rejected her claim for continued disability benefits--either by stopping its monthly payments

to her or by denying her appeal of that decision--and the

commencement of this suit. She argues instead that her claim

did not accrue upon the occurrence of either of these events

because “MetLife breaches its contract each month when it

fails to provide [her] with monthly benefits while [she]

suffers an ongoing disability,” continually resetting the

statute of limitations clock.

New Hampshire follows the “universal rule that when an obligation is to be paid in installments the statute of

limitations runs only against each installment as it becomes

due . . . .” Gen. Theraphysical, Inc. v . Dupuis,

7 7 , 279 (1978); see also Seasons at Attitash Owners Ass’n v .

Country G a s , Inc., N o . 96-10-B (D.N.H. Sept. 1 2 , 1 9 9 7 ) ,

available at http://www.nhd.uscourts.gov; Barker v . Strafford

County Sav. Bank,

4 7 , 148 (1881) (holding that

separate limitations period on claim to recover usurious

6 interest commenced with each loan payment); accord Berezin v .

Regency Sav. Bank,

8 , 73 (1st Cir. 2000) (applying

Massachusetts l a w ) ; 9 Arthur Linton Corbin, Corbin on

Contracts § 951 (interim ed. 2002). 2

In essence, this rule treats each missed or otherwise

deficient payment as an independent breach of contract subject to its own limitations period. S e e , e.g., Keefe C o . v .

Americable Int’l, Inc.,

6 9 , 472 (D.C. 2 0 0 0 ) .

Accordingly, a party bringing an action on an installment

contract can “recover only for those [payments] relating to

the [periods] for which the applicable statute of limitations

ha[s] not expired at the time plaintiff file[s] suit . . . .”

2 In the interest of clarity, the court will refer to the principle described in these and like authorities as the “installment contract” rule. Although Pierce refers to the rule as the “continuing violation” doctrine, that term is generally used to denote a concept of tolling applied to employment discrimination claims. See generally Provencher v . CVS Pharmacy,

, 14 (1st Cir. 1 9 9 8 ) . To the extent Pierce actually intends to rely on this form of the continuing violation doctrine in objecting to the motion to dismiss, her reliance is misplaced. See Fuller Ford, Inc. v . Ford Motor C o . ,

4 4 ,

, at *6 (D.N.H. Aug. 6, 2001) (“while federal law recognizes the continuing violation doctrine in the context of employment discrimination claims, the New Hampshire Supreme Court has shown no inclination to incorporate the doctrine as an exception to the [s]tate’s general statutes of limitation”) (internal citation and footnote omitted).

7 County of Morris v . Fauver,

5 8 , 971 (N.J. 1 9 9 8 ) ; see

also Gen. Theraphysical,

(noting that

plaintiff could claim “only those payments coming due . . .

within the six-year period of limitations

. . . ” ) ; 9 Corbin § 9 5 1 .

The parties agree that the New Hampshire Supreme Court has never considered whether the payment of insurance benefits

on a regular basis constitutes an “obligation to be paid in

installments” so that the date of each payment commences a

separate limitations period. As a federal tribunal exercising

diversity jurisdiction over the plaintiffs’ state law claim,

this court must predict that court’s future course on this

issue. See FDIC v . Ogden Corp.,

5 4 , 460-61 (1st

Cir. 2 0 0 0 ) . This task requires an “‘an informed prophecy of

what the [New Hampshire Supreme Court] would do in the same situation,’ seeking ‘guidance in analogous state court

decisions, persuasive adjudications by courts of sister

states, learned treatises, and public policy considerations

identified in state decisional law.’” Walton v . Nalco Chem.

C o . ,

3 , 20 (1st Cir. 2001) (quoting Blinzler v .

Marriott Int’l, Inc.,

(1st Cir. 1996)).

“Courts have used the ‘installment contract’ approach in

8 a variety of situations.” Metromedia C o . v . Hartz Mountain

Assocs.,

(N.J. 1 9 9 5 ) ; see also Berezin,

(“[a] contract need not specifically reference

installments to be deemed an installment contract”); F.D.

Stella Prods. C o . v . Scott,

6 2 , 465 (Tex. App.

1994). These situations have included the breach of a contractual duty to make a regular benefit payment analogous

to the obligation which an insurer owes under a policy of

disability insurance. For example, the underpayment of

regular disbursements from a pension fund has generally been

treated as the breach of an installment contract for statute

of limitations purposes. S e e , e.g., Jackson v . Am. Can C o . ,

7 0 , 374 (W.D. Mich. 1 9 8 0 ) ; Bauers v . City of

Lincoln,

2 5 , 633-34 (Neb. 1 9 9 4 ) ; Zalobowski v . New

England Teamsters & Trucking Indus. Pension Fund,

, 438 ( R . I . 1 9 8 0 ) ; but see Miele v . Pension Plan of N.Y.

State Teamsters Conference Pension & Ret. Fund,

8 , 102-103 (E.D.N.Y. 1999) (figuring limitations period from

“single alleged miscalculation” which gave rise to reduced

pension payments).

Relatedly, courts have followed the installment contract

approach in the case of an employer’s obligation to make

regular contributions to an employee benefit plan. See Bettis

9 v . Potosi R-III Sch. Dist.,

8 3 , 188 (Mo. C t . App.

2 0 0 1 ) ; Jensen v . Janesville Sand & Gravel C o . ,

5 9 ,

561 (Wis. C t . App. 1 9 8 7 ) ; accord Adams v . City of Detroit,

7 , 69 (Mich. App. 1998) (applying rule to employer’s

breach of agreement to pay retirees’ periodic health insurance

premiums). The Court of Claims has adopted the installment contract rule in determining the start of the limitations

period on a claim for annuity payments under the military’s

survivor benefit plan. Nicholas v . United States, 42 Fed. C l .

3 7 3 , 376-79 (1998). Indeed, the Supreme Court has called the

application of a separate limitations period to each payment

in a series “the standard rule for installment obligations.”

Bay Area Laundry & Dry Cleaning Pension Trust Fund v . Ferbar

Corp. of Calif.,

9 2 , 208 (1997) (treating employer’s

duty to reimburse pension fund through periodic payments in satisfaction of withdrawal liability under MPPAA as

installment contract).

Moreover, a number of courts have expressly held that the

statute of limitations on a claim arising out of a disability

insurer’s cessation of regular benefit payments runs

separately as to each payment. See Everhart v . State Life

I n s . C o . ,

4 7 , 356 (6th Cir. 1946) (applying Ohio

l a w ) ; Aetna Life I n s . C o . v . Moyer,

7 4 , 981 (3rd

10 Cir. 1940) (applying Pennsylvania l a w ) ; Pac. Mut. Life I n s .

C o . of Calif. v . Jordan,

5 0 , 252 (Ark. 1 9 3 5 ) ;

German v . Continental C a s . C o . ,

(Ill.

App. C t . 1 9 7 8 ) ; Goff v . Aetna Life & C a s . C o . ,

(Kan. App. 1 9 7 7 ) ; Columbian Mut. Life I n s . C o . v . Craft,

185 S o . 2 2 5 , 228 (Miss. 1 9 3 8 ) ; Alsup v . Travelers I n s . C o . ,

0 , 94 (Tenn. 1 9 5 4 ) ; Universal Life & Accident I n s .

C o . v . Shaw,

7 6 , 379 (Tex. 1 9 4 2 ) ; 44A Am. Jur. 2d

Insurance § 1913 (2003). A leading treatise on contract law

also endorses this view. See 9 Corbin § 955 (“if the insured

becomes totally disabled and the insurer refuses the periodic

payments, action will lie at once for each payment as it falls

due. As to these the policy is an instalment [sic]

contract.”)

MetLife argues that the rule set forth in the cases from these other jurisdictions conflicts with existing New

Hampshire law, under which the statute of limitations starts

running “when [an] insurer reject[s] the insured’s claim for

benefits.” MetLife relies on Metro. Prop. & Liab. I n s . C o . v .

Walker,

(1993), for this proposition. It is true

that the court in Walker held that the statute of limitations

on a claim for underinsured motorist coverage began running on

the day the insurer denied the request for coverage.

at

11 597-98. The benefit claimed by the insured in Walker,

however, was a one-time payment for injuries she had sustained

in a collision, rather than a series of periodic payments like

those made under a policy of disability insurance.

Accordingly, Walker in no way forecloses the use of the

installment contract approach to determine the start of the limitations period on a claim for discontinued disability

payments under New Hampshire law. 3 See Gen. Theraphysical,

(where claim arose from agreement calling for

payment of money in installments, declining to apply rule that

statute began running when debtor first stopped making

3 MetLife also argues that this court’s decision in Rochester Lincoln-Mercury, Inc. v . Ford Motor C o . ,

(D.N.H. May 1 0 , 2 0 0 0 ) , “squarely rejected” the “logic” underlying the installment contract approach. Like Walker, Rochester did not arise out of the breach of a contract to render performance in separate installments, but the defendant’s refusal to perform a single act which allegedly violated the parties’ agreement, namely the refusal to allow the plaintiff to purchase another Ford dealership. What this court rejected was the plaintiff’s argument that the limitations period on its claim did not start running until Ford sold the dealership to another buyer, rather than when Ford first communicated its refusal to let the plaintiff make the purchase. This argument, which the court identified as seeking to start the limitations clock on a contract claim when the plaintiff is damaged by the breach instead of at the breach itself, differs from the installment contract approach, which starts a new clock at every breach. This court’s reasoning in Rochester, then, does nothing to undercut the installment contract theory.

12 payments). MetLife also relies on the decisions of two federal courts of appeal which refused to treat an insurer’s cessation of regular disability payments as the breach of an installment contract for limitations purposes. See Lang v . Aetna Life Ins. C o . ,

(10th Cir. 1 9 9 9 ) ; Dinerstein v . Paul Revere Life I n s . C o . ,

2 6 , 828-29 (11th Cir. 1999). Other federal courts have taken the same approach. See Wetzel v . Lou Ehlers Cadillac Group Long Term Disability Ins. Program,

4 3 , 649 (9th Cir. 2000) (en b a n c ) ; Armbruster v . K-H Corp.,

7 0 , 887-88 (E.D. Mich. 2 0 0 2 ) ; Hembree ex r e l . Hembree v . Provident Life & Accident I n s . C o . ,

(N.D. G a . 2 0 0 0 ) ; Allen v . Unionmutual Stock Life I n s . C o . of Am.,

6 1 , 966 n.3 (S.D. Ohio 1 9 9 7 ) .

In light of the depth of authority holding that a separate limitations period on an insured’s claim to recover unpaid disability benefits runs from each missed payment, however, the court does not find these contrary decisions persuasive in determining New Hampshire law on this issue. 4

4 A number of these cases simply reject the rule out of hand without any accompanying analysis of its wisdom or lack thereof. S e e , e.g., Wetzel,

(stating that the “‘rolling’ accrual rule is no longer the law of this circuit”

13 The court in Dinerstein, applying Florida law to determine

when the plaintiff’s claim to recover allegedly underpaid

disability benefits accrued, declined to treat the policy as

an installment contract, holding instead that the limitations

period commenced when the insurer made the first of its

monthly payments in the reduced amount.

2 9 . The court took this approach because in its view “the issue is not

whether the total amount due under a particular installment

was fully paid, but rather whether it was owed in the first

place.”

(footnote omitted).

Application of the installment contract rule, however,

does not depend on the presence of a dispute over whether the

periodic payments were “owed in the first place.” Courts have

routinely treated the failure to make payments according to an

agreed-upon schedule as the breach of an installment contract notwithstanding the defendant’s position that it had no

liability for any of those installments. S e e , e.g., Jackson,

485 F. Supp. at 374-75 (treating former employer’s cessation

of pension contributions as breach of installment contract

because prior application was based on misunderstanding of state statute); Hembree,

(declining to follow approach because only supporting authority cited by plaintiff had been overruled by Wetzel); Allen, 989 F. Supp. at 966 n . 3 (rejecting invocation of rule as “flawed” without further discussion).

14 even though payments halted due to employee’s alleged

violation of non-compete agreement); Jensen, 415 N.W.2d at

560-61 (applying rule in suit over discontinued pension

payments despite employer’s argument that it could

unilaterally terminate benefit). Moreover, courts which have

taken the installment contract approach to policies of

disability insurance have done so despite the insurer’s

contention that it had no obligation to continue periodic

payments “in the first place” because the insured did not

qualify for them under the policy. S e e , e.g., Everhart,

4 8 ; Columbian Mut., 185 S o . at 227-28; Shaw, 163

S.W.2d at 378-79.

As these authorities suggest, nearly every action seeking

to recover on a contract calling for periodic performances has

its genesis at the point where the defendant stops rendering

those performances through the first of what turns out to be a series of discontinued payments. If the Dinerstein court were

correct that this first missed or otherwise deficient payment

triggered the statute of limitations as to all future

payments, the installment contract rule would never apply.

Dinerstein’s analysis, then, simply cannot be squared with

existing New Hampshire law. C f . Gen. Theraphysical,

7 9 .

15 This court also considers Lang unpersuasive. There, the

court rejected the insured’s characterization of her policy as an installment contract because under that theory

her claim would have an indefinite lifespan. Such a result would undermine the overriding purpose of a statute of limitations. Time limits are essential to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.

(internal quotation marks omitted); see also

Armbruster,

(relying on Lang in

declining to follow installment contract rule on the basis of

the “policies underlying statutes of limitations”).

As an initial matter, the court’s statement that the

installment contract approach gives an insured’s claim for

unpaid disability benefits “an indefinite lifespan” is not

correct. To the contrary, the approach limits the insured’s

recovery to those individual payments as to which suit was

brought before the limitations period expired. S e e , e.g.,

Everhart,

5 6 ; Moyer,

8 1 .

Recognizing this principle, courts have rejected the Lang

court’s reasoning that the rule makes the statute of

limitations on an installment contract “indefinite.” See Bay

Area Laundry,

1 0 ; Nicholas, 42 Fed. C l . at 378-

79. Due to its misunderstanding of the installment contract

16 approach, Lang overestimates the negative effect which the

rule would have on the policies underlying statutes of

limitations.

The Lang court also reached its assessment that the

installment contract rule “would undermine the overriding

purpose of a statute of limitations” without accounting for the fact that, despite such occasional criticism by litigants

seeking to avoid i t , the rule has become “universal.” Gen.

Theraphysical,

7 8 ; see also Nicholas, 42 Fed. C l .

at 379 n.3 (calling the rule “well-established”); 9 Corbin §

951 (noting that “there is much authority” for the r u l e ) .

Indeed, courts have continued to adhere to the rule in the

face of arguments similar to those which persuaded the Lang

court. See Keefe, 755 A.2d at 474 (retaining rule over

defendant’s objection that it would “allow a single cause of action to re-appear, phoenix-like, every month”); Phoenix

Acquisition Corp. v . Campcore, Inc.,

(N.Y. 1993) (following rule despite recognition that it could

interfere with statutes’ promotion of certainty). As the

Supreme Court has recognized, the logic behind the installment

contract rule is that it requires a plaintiff to “wait until

the [defendant] misses a particular payment before suing to

17 collect that payment.” 5 Bay Area Laundry,

5 2 ;

see also Metromedia,

(to reject installment

contract approach “would allow a claimant to trigger the

statute of limitations upon presentation of a claim rather

than having the existence of a claim trigger the statute of

limitations”). In any event, regardless of the merits of the Lang

court’s view as to the wisdom of the installment contract

approach, this court is not free to disregard that approach in

light of Gen. Theraphysical. Indeed, the Lang court’s

criticism of treating a disability insurance policy as an

installment contract for limitations purposes, i.e., the

limitations period potentially extends well beyond the

defendant’s rejection of the plaintiff’s right to continued

payments, is equally applicable to treating any agreement as

5 The Supreme Court’s holding in Bay Area Laundry gives the court further pause in relying on Lang and Dinerstein, which did not consider the case in rejecting the installment contract approach. C f . Nicholas, 42 Fed. C l . at 376-77 (relying on Bay Area Laundry to treat claim for military survivor benefits as suit on installment contract, overruling contrary Federal Circuit precedent); but see Miele,

(declining to extend Bay Area Laundry to treat claim for underpayment of pension benefits as suit on installment contract).

18 an installment contract for limitations purposes. 6 The New

Hampshire Supreme Court was presumably aware of that criticism

when it decided Gen. Theraphysical, but nevertheless chose to

follow the installment contract rule there. Furthermore, Gen.

Theraphysical contains no indication that New Hampshire would

refrain from following the installment contract rule in cases arising out of disability insurance policies and neither

MetLife nor the authorities it cites offer any compelling

reason to do s o .

Accordingly, the court concludes that New Hampshire would

6 For example, a lessee might agree to make a payment of $1,000 each month over the ten-year term of an equipment lease, but stop making those payments after one year, notifying the lessor that the equipment no longer performs as warranted. Under the rule followed in Gen. Theraphysical, the lessor is entitled to wait until the three-year anniversary of the date the last payment was due under the lease--twelve years from when the lessor stopped making payments--to recover the amount of that final payment. By that point, it is likely that evidence will have been lost, memories will have faded, and witnesses will have disappeared as to the merits of the lessor’s claim, which presumably would depend on whether the equipment w a s , in fact, defective. In addition, the lessee is likely to be surprised by the lawsuit after having heard nothing from the lessor on the subject for more than a decade. (Of course, these disadvantages are mitigated by the fact that the lessor’s claim is limited to the amount of the very last payment, or $1,000.) Despite the seeming undesirability of such a result, it is permitted by the installment contract rule, which has become widely accepted nonetheless, including by the New Hampshire Supreme Court.

19 treat an insurer’s cessation of regular disability payments as

the breach of an installment contract for statute of

limitations purposes. A separate limitations period therefore

runs as to each of the monthly payments which MetLife withheld

from Pierce, beginning with the disbursement due in July of

1999. Because Pierce did not commence this action until August 2 0 , 2003, however, she can recover only for those

payments which would have come due within the preceding three-

year period. The statute of limitations bars her claim to

each of those payments allegedly due during the period

beginning on July 1 0 , 1999, and ending on August 1 9 , 2000.

See Gen. Theraphysical,

7 8 .

Pierce, however, contends that the reach of the statute

of limitations should not extend to any of the payments

withheld by MetLife. She argues that equitable tolling should apply because she completely relied upon MetLife for

“knowledge . . . about the appeals process and requirements

for further legal action by its beneficiaries” and that

MetLife had a “fiduciary duty to advise her of any statute of

limitations issues.”

“Conduct of a nature giving rise to an equitable estoppel

may be sufficient to toll the running” of a statute of

limitations under New Hampshire law. Guerin v . N.H. Catholic

20 Charities, Inc.,

0 1 , 504 (1980); see also In re

Kulacz,

1 3 , 116 (2000); Fuller,

, at

*7. The application of equitable estoppel rests largely on

the facts and circumstances of a particular case. Goodwin

R.R. v . State,

9 5 , 600 (1986). As with other

tolling doctrines, the party invoking equitable estoppel bears the burden of demonstrating its applicability. See Kulacz,

1 6 .

Pierce does not claim that MetLife fraudulently concealed

the fact that her benefits had been terminated. C f . Lakeman

v . LaFrance,

0 0 , 301 (1959) (recognizing statute

could be tolled on medical malpractice claim where defendant

misrepresented progress of plaintiff’s recovery); Bowman v .

Sanborn,

(1846) (tolling limitations period on

claim for partnership settlement where defendant concealed its true financial condition). Nor does she point to any other

affirmative conduct which MetLife undertook “to persuade [her]

not to file suit.” Fuller,

, at *7 (declining

to dismiss suit arising out of auto manufacturer’s refusal to

allow dealership to move where manufacturer forestalled suit

by promising to move dealership to third location, but then

failed to deliver); accord In re Cloutier Lumber C o . ,

2 0 , 422 (1981) (workers’ compensation insurer estopped from

21 raising statute of limitations by its statements to plaintiff

that benefits would resume if he failed in returning to w o r k ) .

Instead, Pierce argues that estoppel should apply because

MetLife provided “no assistance or warning that there was any

statute of limitations that was going to expire.” New

Hampshire recognizes that “[u]nder certain circumstances, an estoppel may arise from silence or inaction as opposed to an

actual misrepresentation. This form of estoppel, however, is

limited to situations where the silent party has knowledge and

a duty to make disclosure.” Guri v . Guri,

5 2 , 555

(1982) (citation omitted); see also Concrete Constructors,

Inc. v . Harry Shapiro & Sons, Inc.,

8 8 , 893 (1981);

Margolis v . S t . Paul Fire & Marine I n s . C o . ,

0 3 , 308

(1956).

MetLife contends that it had no duty to advise Pierce that the limitations period was running on her claim for

unpaid benefits. Although the New Hampshire Supreme Court has

yet to consider this argument directly, it has refused to

extend an insurer’s duty to its insured beyond the obligation

to handle third-party claims with reasonable care. Lawton v .

Great Southwest Fire I n s . C o . ,

0 7 , 613-14 (1978).

In addition, courts in other jurisdictions have explicitly

held that an insurer has no duty to inform its insured that

22 the clock on a potential claim against the carrier is ticking.

See, e.g., A L I , Inc. v . Generali,

1 8 , 120-21

(D.N.J. 1 9 9 7 ) ; Foamcraft, Inc. v . First State I n s . C o . ,

3 7 , 539 (Ill. App. 1 9 9 2 ) ; Blitman Constr. Corp. v .

Ins. C o . of N . Am.,

3 6 , 238 (N.Y. 1 9 8 5 ) ; Jet Set

Travel Club v . Houston Gen. I n s . Group,

2 0 , 222 (Wash. App. 1 9 8 2 ) ; 16 Lee R. Russ et a l . , Couch on Insurance §

235:72 (3d ed. 1 9 9 5 ) ; c f . Union Auto. Indem. Ass’n v . Shields,

9 , 42 (7th Cir. 1996) (under Indiana law, insurer’s

duty to inform claimant of deadline extends only to non-

parties to policy).

In the absence of any contrary authority or argument from

Pierce, the court concludes that MetLife’s lack of

responsiveness to Pierce’s correspondence regarding its denial

of continued benefits does not preclude MetLife from asserting the statute of limitations. 7 See LaChapelle v . Berkshire Life

Ins. C o . ,

0 7 , 510 (1st Cir. 1998) (upholding

7 Pierce relies on a United States Supreme Court case noting that equitable tolling has been permitted “‘where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.’” Young v . United States,

3 , 50 (2002) (quoting Irwin v . Dep’t of Veterans Affairs,

9 , 96 (1990)). Given the absence of any misconduct on MetLife’s part, however, the principle recited in Young is inapposite.

23 rejection of equitable estoppel argument under Maine law where

insurer “told [plaintiff] straightaway that it intended to

stop paying benefits” and “then acted on that stated

intention”). If anything, Pierce’s letters (particularly

those of February 3 , 2001, and thereafter) demonstrate that

she knew that the wise course was to consult a lawyer as to a possible claim against MetLife. Her reluctance to do s o ,

while perhaps understandable, provides no basis for estopping

MetLife from raising a limitations defense as to those

payments allegedly due more than three years before Pierce

ultimately brought suit. MetLife’s motion to dismiss is

therefore granted as to so much of Pierce’s claim as seeks to

recover any payment of disability benefits which would have

been made before August 2 0 , 2000.

Conclusion

For the foregoing reasons, MetLife’s motion to dismiss

(document n o . 7 ) is GRANTED to the extent it seeks dismissal

of that portion of Pierce’s claim which arises out of payments

allegedly due under the policy before August 1 9 , 2000. The

motion is otherwise DENIED. Pursuant to Fed. R. Civ. P.

1 5 ( a ) , MetLife shall file a response to the complaint within

ten days of the date of this order.

24 SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge March 5 , 2004

cc: David L . Nixon, Esquire William D. Pandolph, Esquire

25