Ayotte v . Matthew Thornton Health CV-03-227-JD 06/28/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bertin L. Ayotte

v. N o . 03-227-JD Opinio n N o .

Matthew Thornton Health Plan, Inc. and Anthem Health Plans of New Hampshire, Inc.

O R D E R

Bertin L . Ayotte brought suit under the Employee Retirement

Income Security Act (“ERISA”),

, et seq., seeking

coverage for certain medical procedures from Matthew Thornton

Health Plan, Inc., and Anthem Health Plans of New Hampshire, Inc.

Ayotte alleges claims to recover benefits and for breach of

fiduciary duty. The defendants move for summary judgment on the

grounds that the limitations provision in the plan bars Ayotte’s

claim, Ayotte failed to comply with the expert disclosure

deadline, and the decision to deny benefits was appropriate.

Background

Bertin Ayotte was provided health insurance coverage under

his employer’s benefit plan through Matthew Thornton Health Plan,

Inc. The medical policy included provisions that excluded

coverage for investigational or experimental treatment and that

required “[any] legal action” against Matthew Thornton Health Plan (“MTHP”) to be brought within one year “from the date the

cause of action arose.” Def. Ex. A at 3 0 .

Ayotte was diagnosed with prostate cancer in January of

2000. After considering the treatment options recommended by his

urologist, he learned of an alternative treatment offered at Loma

Linda University Medical Center in Loma Linda, California, involving proton beam and x-ray therapy. He requested

authorization from MTHP for the Loma Linda treatment, but his

request was denied. Despite MTHP’s decision, Ayotte underwent

the treatment from April to June of 2000 at a cost of $49,138.00,

which he paid himself. MTHP denied his first level appeal on May

2 2 , 2000, stating that the Loma Linda treatment was considered to

be investigational and therefore not covered.

Ayotte retained counsel and continued through the appeals

process. At the second level of the appeals process, Ayotte’s request was reviewed by the Appeal Committee and an independent

reviewer who is board certified in oncology. The conclusion was

that the Loma Linda treatment was investigational.

Ayotte asked for a third level of review by an independent

agency designated by the New Hampshire Department of Insurance.

Hayes Plus conducted the third level review with an unnamed

expert reviewer who was board certified in radiation oncology. A

telephone hearing was held on March 2 1 , 2001. That reviewer also

2 found that the treatment was investigational and not medically

necessary.

Hayes Plus sent Ayotte a report of the independent

reviewer’s conclusions which constituted final notice of denial

on April 1 2 , 2001. On January 1 , 2002, the MTHP was replaced by

Matthew Thornton Blue. Ayotte, through counsel, filed suit in

state court on April 2 3 , 2003, and the case was then removed to

this court.

Discussion

Ayotte challenges MTHP’s decision and seeks the benefits he

believes are due him through claims for denial of benefits under

(a)(1)(B) and for breach of fiduciary duty under

(a)(3). 1 The defendants contend that Ayotte’s

claims are barred by the one-year limitation provision in the

MTHP Certificate and also fail on the merits. The parties have

agreed not to pursue the issue of Ayotte’s failure to disclose an

expert witness.

As a preliminary matter, neither the defendants nor Ayotte

1 Although Ayotte’s pleadings are not specific, his fiduciary duty claim is presumed to be pled under § 1132(a)(2) and the catchall provision of § 1132(a)(3), alleging violations of § § 1104, 1105, and 1109. See, e.g., Watson v . Deaconess Waltham Hosp.,

0 2 , 105 (1st Cir. 2002).

3 address his fiduciary duty claim in Count II as a claim that is

distinct from his claim to recover benefits in Count I . The

difference is potentially significant in this case because claims

of breach of fiduciary duty are subject to a statutory limitation

period,

, while claims under § 1132(a)(1)(B) are

not. However, because Ayotte seeks to recover benefits but does not seek equitable relief for breach of fiduciary duties, he does

not state a separate breach of fiduciary duty claim. See, e.g.,

Varity Corp. v . Howe,

(1996); Barrs v . Lockheed

Martin Corp.,

0 2 , 205 n.2 (1st Cir. 2002). Therefore,

the court will consider Ayotte’s claims together as one claim

seeking to recover benefits under the Plan.

In the absence of a statutory time limit for claims under §

1132(a)(1)(B), courts usually borrow the most closely analogous

limitation period from the law of the forum state. See, e.g., Northlake Reg’l Med. Ctr. v . Waffle House Sys. Employee Benefit

Plan,

, 1303 (11th Cir. 1998); Alcorn v . Raytheon

Co.,

1 7 , 120 (D. Mass. 2001). Here, however,

the MTHP includes a limitations provision in the “Certificate”

that provides medical coverage. Contractual time limits provided

as part of a plan are enforceable, despite different state law

limitations periods, as long as the agreed-upon period is

reasonable. See, e.g., State S t . Bank & Trust C o . v . Denman Tire

4 Corp.,

3 , 87 (1st Cir. 2001); Northlake, 160 F.3d at

1303; Alcorn,

.

The MTHP Certificate includes the following provision: “Any

legal action against MTHP for failure to provide or pay for

Covered Services or for any other failure to meet its obligations

under this Certificate must be brought within one year from the date the cause of action arose.” Def. Ex. A at 3 0 . The

defendants contend that because Ayotte received the last notice

that his claim for coverage of the Loma Linda treatment would not

be covered in April of 2001 but did not bring suit until April of

2003, his claim is time barred. Ayotte argues that the term

“legal action” in the limitations provision is ambiguous and

should be construed in his favor, that the terms of the Matthew

Thornton Blue Plan, adopted in January of 2002, should control

his claim, and that the contractual limitations period should not apply because the defendants did not give him notice that he had

to file suit within a year. He does not argue that the one-year

limitation period is unreasonable.

Federal common law governs the interpretation of provisions

in an ERISA benefit plan. Filiatrault v . Comverse Tech., Inc.,

3 1 , 134 (1st Cir. 2001); Morais v . Cent. Beverage

Corp.,

, 711 (1st Cir. 1999). A plan is construed

using “common-sense canons of contract interpretation” that are

5 derived from general state law principles. Rodriguez-Abreu v .

Chase Manhattan Bank, N.A.,

8 0 , 585 (1st Cir. 1993).

Plan language is interpreted according to its plain meaning taken

in context, and language is ambiguous only “‘where an agreement’s

terms are inconsistent on their face or where the phraseology can

support reasonable differences of opinion as to the meaning of the words employed and obligations undertaken.’” Smart v .

Gillette C o . Long-Term Disability Plan,

(1st

Cir. 1995) (quoting Fashion House, Inc. v . K Mart Corp.,

(1st Cir. 1989)).

Ayotte contends that the term “legal action” in the

limitation provision is ambiguous because it does not clearly

state that it means filing an action in court. Instead, Ayotte

argues, the term could reasonably be understood to mean following

the administrative appellate process provided by MTHP. Such an interpretation of “legal action” is not reasonable in the context

of the MTHP provisions.

The MTHP Certificate provides a grievance procedure for a

Plan member to “communicate any questions or complaints” and “to

present his position” about coverage decisions to the MTHP

Customer Service Department. Def. Ex. A at 2 8 . The letters and

notifications Ayotte received about the administrative process

did not mention “legal action” but instead referred to an “appeal

6 process” with several levels of internal and external review. Further, the limitations provision states that “[a]ny legal actions against MTHP for failure to provide or pay for Covered Services or for any other failure to meet its obligations under this Certificate must be brought within one year.” Def. Ex. at 30 (emphasis added). An administrative appeals process provided by Matthew Thornton could not reasonably be understood as a legal action against Matthew Thornton.

Also, the ordinary and plain meaning of “legal action” is a lawsuit. See, e.g., The Concise Oxford Dictionary 12 (8th Ed. 1990) (defining “action” as “legal process” or “lawsuit”). In addition, the New Hampshire statute of limitations cited by Ayotte uses the word “action” to mean lawsuit.

. Therefore, Ayotte’s interpretation of “legal action” is not reasonable. The term is not ambiguous as used in the limitations provision.

There is no dispute that MTHP provided Ayotte health insurance coverage during the time in question. The Matthew Thornton Blue coverage did not begin until January of 2002, long after the Loma Linda treatments and the conclusion of Ayotte’s appeal process.2 Therefore, the MTHP, which includes the

2 Ayotte notes that the appeal process followed the detailed procedures outlined in the Matthew Thornton Blue Certificate,

7 limitation provision, not the Matthew Thornton Blue plan, which

does not include a limitation provision, governs his claim.

Ayotte also contends that the limitation provision should

not bar his suit because the defendants did not give him notice

of that provision. He does not deny that he was provided with

all Plan documents. He does not contend that the limitation

provision was missing from the documents given to him. He also

does not identify any part of ERISA that requires a plan

administrator to give a participant or beneficiary specific

notice of a limitation provision. Therefore, Ayotte cannot avoid

the effect of the limitation provision based on his argument of a

lack of notice.

Because Ayotte filed suit more than one year after he

received final notice that the defendants denied his claim for

benefits for the Loma Linda treatment, his suit is time barred.

rather than the more general grievance procedure provided in the Matthew Thornton Health Plan Group Certificate of Coverage. Given the undisputed coverage dates of the two plans, the appeal process does not change which plan governed Ayotte’s claim.

8 Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document n o . 16) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge June 2 8 , 2004

cc: Scott H . Harris, Esquire Ernest A . Jette, Esquire

9