Jerry Engleson v. UNUM Life Insurance Company of, et al

Filing

OPINION and JUDGMENT filed : The judgment of the district court is AFFIRMED. Decision for publication. Gilbert S. Merritt, Eric L. Clay, and Bernice Bouie Donald (AUTHORING), Circuit Judge.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0173p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 12-4049
v.
>
,
UNUM LIFE INSURANCE COMPANY OF
AMERICA; SEIBERT KECK LONG TERM
DISABILITY INCOME PLAN,
Defendants-Appellees. N
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:09-cv-02969—David D. Dowd, Jr., District Judge.

JERRY ENGLESON,

Plaintiff-Appellant,

Argued: May 1, 2013
Decided and Filed: July 3, 2013
Before: MERRITT, CLAY, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Kenneth L. Gibson, GIBSON & LOWRY, Cuyahoga Falls, Ohio, for
Appellant. Brett K. Bacon, FRANTZ WARD LLP, Cleveland, Ohio, for Appellees.
ON BRIEF: Kenneth L. Gibson, GIBSON & LOWRY, Cuyahoga Falls, Ohio, for
Appellant. Brett K. Bacon, Olivia Lin Southam, FRANTZ WARD LLP, Cleveland,
Ohio, for Appellees.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Jerry Engleson waited over eight
years before seeking judicial review of his denied claim for long-term disability benefits.
The terms of his disability plan, however, gave him a little more than three years to file
such a suit. Despite Engleson’s best efforts to convince us otherwise, neither the law nor

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principles of equity allow us to excuse the tardiness of his suit. As a result, we
AFFIRM the decision of the district court.
I.
Jerry Engleson was a Vice President at the Seibert-Keck Insurance Agency in
Akron, Ohio. His responsibilities included managing the company’s casualty and
property insurance lines. He suffered from a number of medical conditions, including
Crohn’s disease and depression. Eventually, the maladies proved to be too much; he
stepped down from his position on June 16, 2001, citing his impaired state.
Seibert-Keck had a group plan for long-term disability benefits, managed by the
Unum Life Insurance Company of America (Unum). Upon his departure from SeibertKeck, Engleson filed a claim for long-term disability benefits under this plan. He then
moved to Sarasota, Florida.
Unum denied his claim on August 22, 2001, reasoning that Engleson’s clinical
documentation did not support his assertion that his symptoms were so debilitating that
he was precluded from working. From Unum’s perspective, nothing in the file suggested
that Engleson had been “continuously disabled.”
But Unum also offered an internal appeal, which Engleson took advantage of on
August 28, 2001. In doing so, he asked for his claim file, stating: “I would appreciate
it very much if you would provide me with the documents contained in your claim file
which were pertinent to your denial decision.” Unum sent the file.
Engleson had no luck with the appeal; Unum denied it on October 10, 2001.
Unum offered another opportunity for further review, which Engleson decided to take
up. This time, he asked his treating physician in Ohio to submit additional supporting
information on his behalf. When Unum received this information, Engleson lodged
another internal appeal.
Engleson’s second appeal met a similar fate as his first—Unum denied the
subsequent appeal on November 29, 2001. After an on-site physician reviewed the new

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information, Unum concluded that the additional medical information “[did] not provide
a sufficient basis to reverse the denial of benefits.”
Over the next few years, Engleson fell silent with respect to his unsuccessful
claim. By 2007, he had returned to Ohio and to Seibert-Keck. But by August 1, 2008,
his medical condition became too much to bear once more—Engleson filed another
claim for disability benefits on that day, claiming that he was unable to work as of the
day before. This time, Unum granted his request, awarding benefits in a letter dated
December 23, 2008, with the date of disability denoted as August 5, 2008. Unum
acknowledged the 2001 claim, but cautioned that it was “unable to overturn a disability
claim decision where 2 appeals [had] been clearly made and upheld.” Its letter further
provided that: “If you or your physician(s) have additional information to support your
request for disability benefits based upon an earlier date of disability, we will be happy
to reconsider your claim.”
Engleson wrote back that he was “somewhat disappointed that UNUM [had]
chosen to use August 5, 2008 as the date of disability.” He asked what additional
information the company might need to reconsider his 2001 claim. Unum responded by
noting that it “already afforded [Engleson] two appeal reviews relevant to an earlier
period of loss dating back to 2001” and that it would “not be completing an additional
appeal review” as a result.
Engleson, undeterred, filed suit in district court on December 22, 2009, seeking
the recovery of wrongfully denied benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) and
section 502(a) of the Employee Retirement Income Security Act (ERISA). He also
sought equitable relief, alleging that he was not afforded a full and fair review of his
claim under 29 U.S.C. § 1133 and that Unum breached its fiduciary duties under the
terms of the plan.
On July 13, 2010, the magistrate judge ordered the parties to brief the issue of
whether Engleson’s suit was timely. After the briefs were filed, the district court held
an evidentiary hearing. Determining that the three-year contractual limitations period
barred the suit, the district court dismissed the case on June 29, 2012. It explained that,

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under the plan’s provisions, Engleson had until March 12, 2005 to file a legal action with
respect to his 2001 claim.1 As the suit was filed in 2009, it was deemed untimely.
Engleson appealed.
II.
We begin with a somewhat technical point that was not raised by either party, but
one that has a bearing on how we view this case. The district court dismissed the case
pursuant to Rule 12(b)(6), positing that its decision was premised on Engleson’s
pleadings and attachments thereto. That rule, however, “is generally an inappropriate
vehicle for dismissing a claim based upon a statute of limitations.” Cataldo v. U.S. Steel
Corp., 676 F.3d 542, 547 (6th Cir. 2012).
When a district court “considers matters outside the pleadings in a Rule 12(b)(6)
motion” and issues “the functional equivalent of a Rule 56 ruling,” we may treat the
Rule 12 dismissal as a grant of summary judgment in the movant’s favor. See Tackett
v. M & G Polymers, USA, LLC, 561 F.3d 478, 487-88 (6th Cir. 2009); see also Brigolin
v. Blue Cross Blue Shield of Mich., No. 11-1525, 2013 WL 781639, at *2 (6th Cir. Mar.
4, 2013) (explaining that, when district courts fail to convert a Rule 12(b)(6) motion to
a motion for summary judgment when the circumstances warrant it, this court may
“ignore the label attached to the proceeding and properly treat it as one for summary
judgment”). Here, the proceedings leading up to the district court’s decision give the
impression that the decision was the “functional equivalent” of summary judgment in
the guise of a Rule 12(b)(6) decision.
Take, for example, the fact that the parties filed briefs on the limitations issue and
attached extrinsic evidence to such briefs. Add to that the district court’s evidentiary
hearing on the limitations issue. Both suggest that the district court “considered”
extrinsic evidence in dismissing the claim on limitations grounds. While it may be true

1

The plan requires participants to file an ERISA claim within “3 years after the time proof of
claim is required.” As the district court explained, Engleson’s disability began on June 15, 2001. His
three-year limitations period began running 270 days after the date of disability, meaning the clock started
ticking on March 12, 2002.

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that the district court’s opinion did not refer to any extrinsic evidence, the court’s
analysis of the contractual limitations clause was rather threadbare. Given the extensive
appendices filed by both parties on appeal and our reliance on the evidence contained
therein in our consideration of Engleson’s arguments, we find it difficult to believe that
the district court’s decision could be sustained on the pleadings alone.
Accordingly, as the district court’s decision was the “functional equivalent” of
a Rule 56 ruling, we will treat it as such. See Tackett, 561 F.3d at 488. We review a
district court’s grant of summary judgment de novo. Price v. Bd. of Trs. of Ind.
Laborer’s Pension Fund, 707 F.3d 647, 650 (6th Cir. 2013). “Summary judgment is
appropriate if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” Id. (quoting Price v. Bd. of Trs. of Ind.
Laborer’s Pension Fund, 632 F.3d 288, 291-92 (6th Cir. 2011)).
Engleson raises three arguments in his attempt to stave off enforcement of the
contractual limitations period. First, he asserts that Unum violated three ERISA
regulations. Second, he claims Unum waived its contractual limitations defense in its
2008 correspondence. Finally, Engleson contends he is entitled to equitable tolling of
the limitations period. We discuss these arguments in turn.
III.
Engleson first points to three alleged violations of ERISA regulations: two
arising from the content of Unum’s adverse benefit determinations, the other from
Unum’s summary plan description. We discern no violation arising from any of these
rules.
A.
The 2000 edition of the Code of Federal Regulations provides, in pertinent part:
(f) Content of notice. A plan administrator . . . shall provide to every
claimant who is denied a claim for benefits written notice setting forth in
a manner calculated to be understood by the claimant:

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...
(4) Appropriate information as to the steps to be taken if the participant
or beneficiary wishes to submit his or her claim for review.
29 C.F.R. § 2560.503-1(f) (2000). Engleson contends that, under this provision, Unum
was required to disclose his right to seek review in federal court and the contractual time
limitation attached to that right in its claim denial letters. To support his argument,
Engleson points to persuasive authority provided by two of our sister circuits in Chappel
v. Laboratory Corp. of America, 232 F.3d 719 (9th Cir. 2000) and White v. Sun Life
Assurance Co. of Canada, 488 F.3d 240 (4th Cir. 2007).
We construe the phrase “appropriate information” as requiring only the
disclosure of information pertaining to internal processes, not judicial review. In doing
so, we first look to the statutory origins of the rule: 29 U.S.C. § 1133. See VanderKlok
v. Provident Life and Accident Ins. Co., 956 F.2d 610, 615 (6th Cir. 1992) (explaining
that the notice provisions were “regulations promulgated under section 1133”). Section
1133 is a statute with a two-fold purpose: “(1) to notify the claimant of the specific
reasons for a claim denial, and (2) to provide the claimant an opportunity to have that
decision reviewed by the fiduciary.” Balmert v. Reliance Standard Life Ins. Co., 601
F.3d 497, 501 (6th Cir. 2010) (emphasis added) (quoting Wenner v. Sun Life Assurance
Co. of Can., 482 F.3d 878, 882 (6th Cir. 2007)); see also 29 U.S.C. § 1133 (2000)
(“[E]very employee benefit plan shall . . . afford a reasonable opportunity to any
participant whose claim for benefits has been denied for a full and fair review by the
appropriately named fiduciary of the decision denying the claim.” (emphasis added)).
Given that the enabling statute addresses internal appeals, we are reluctant to construe
the phrase “appropriate information” as requiring disclosure of pertinent information
regarding both internal appeals and judicial review.
Nothing in Chappel or White compels us to conclude otherwise. To the contrary,
both cases undermine Engleson’s argument in some way. Consider Chappel, for
instance. There, a plan administrator denied a disability benefit, but in doing so, failed
to disclose the plan’s arbitration requirement and the attendant 60-day window for filing

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a request for arbitration. See Chappel, 232 F.3d at 722-23. As Engleson correctly points
out, the Ninth Circuit concluded that the plan administrator’s failure to disclose
constituted a breach of fiduciary duty. Id. at 727. The court highlighted the obligation
of ERISA fiduciaries to act “solely in the interests of the participants and beneficiaries”
when writing and implementing an arbitration clause. Id. at 726. It went on to suggest
that the administrator’s failure to disclose the short temporal window for arbitral
review—and the accompanying forfeiture of further review if the beneficiary failed to
engage in arbitration—was unreasonable. See id. at 726-27.
The court made clear, however, that such a disclosure was not compelled by
section 2560.503-1(f) of the Code of Federal Regulations. See id. at 726 (“Neither
29 U.S.C. § 1133 nor its implementing regulations are directly applicable here; they
address only a plan’s internal appeal process . . . .” (emphasis added)). Instead, it used
the rule as a means of illustrating a fiduciary duty to disclose in cases where arbitration
was mandated by the plan. See id. (“Just as a fiduciary must give written notice to a plan
participant or beneficiary of the ‘steps to be taken’ to obtain internal review when it
denies a claim, so also, we believe, should a fiduciary give written notice of steps to be
taken to obtain external review through mandatory arbitration when it denies an internal
appeal.” (emphases added and citation omitted)).
It is true that mandatory arbitration, like judicial review, is an “additional step
in the plan’s claim procedure . . . [and] to some degree, a substitute for judicial review.”
Id. Therefore, we understand why Engleson would ask for an extension of Chappel’s
reasoning to include judicial review. But the Ninth Circuit’s decision was prompted in
part by who was imposing the additional layer of review. Mandatory arbitration is a
requirement wholly fashioned by the plan administrator; as the decision to impose
arbitration is entirely within the fiduciary’s control, the administrator must take care in
enforcing the requirement. Indeed, the Chappel court could relate mandatory arbitration
to section 2560.503-1(f) precisely because the arbitration requirement was internally
imposed and the regulation only dealt with internal processes.

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Judicial review, on the other hand, is an externally-imposed creature—mandated
by statute, not by contract. See 29 U.S.C. § 1132. Based on this distinction, we
conclude that Chappel’s reasoning is incompatible with Engleson’s interpretation of
what the phrase “appropriate information” requires.
Engleson’s argument fares no better with the Fourth Circuit’s decision in White.
At first glance, it appears the decision might save his claim. In a footnote, the court
opined:
The symbiotic nature of ERISA remedies is also evident in regulations
concerning the notice that ERISA plans must provide to claimants upon
denial of benefit claims as part of the plan’s obligations with respect to
“full and fair review.” The civil action is treated as an integral part of
this review: plans are directed to include a “description of the plan’s
review procedures and the time limits applicable to such procedures,
including a statement of the claimant’s right to bring a civil action”
following an adverse benefits determination.
White, 488 F.3d at 247 n.2 (quoting 29 C.F.R. § 2560.503-1(g)(iv)) (emphasis in
original). This passage seems to suggest that the scope of § 1133 and the notice derived
therefrom includes both internal and judicial mechanisms for review. The White
decision, however, leads to a dead end: it cites the current rule in place, not the 2000
regulation at issue here.
Engleson suffers from unfortunate timing, apparently in more ways than one.
Had these events transpired a year later, he would have a colorable ERISA violation.
But the civil action notice was not required until 2002, having been enacted in 2000. See
29 C.F.R. § 2560.503-1(o) (2001) (indicating that the regulations would take effect on
January 1, 2002).

Compare 29 C.F.R. § 2560.503-1(f)(4) (2000) (requiring

“[a]ppropriate information as to the steps to be taken if the participant . . . wishes to
submit his . . . claim for review”), with 29 C.F.R. § 2560.503-1(g)(1)(iv) (2001)
(requiring plans to include “a description of the plan’s review procedures and the time
limits applicable to such procedures, including a statement of the claimant’s right to
bring a civil action” to challenge adverse benefit determinations). As a result, the White
court’s commentary on the “symbiotic nature” of ERISA remedies provides us with little

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to no guidance. We conclude that Unum was under no regulatory obligation in 2001 to
disclose either Engleson’s right to pursue litigation in federal court or the limited
window for obtaining such review in its claim denial letter.
B.
Not only does Engleson find flaws in how Unum issued its claim denial letters,
he also takes issue with how Unum granted benefits. He argues that the 2008 letter
granting him disability benefits constitutes (1) an adverse benefit determination and
(2) waiver as a matter of law. Because Unum denied the backdating of his 2008
benefits, Engleson construes the 2008 letter as an adverse benefit determination. As
such, the letter—according to Engleson—needed to disclose the “specific reason or
reasons for the adverse determination.” See 29 C.F.R. § 2560.503-1(g)(1)(I) (2008).
Because Unum failed to do so, Engleson argues, the violation excuses his tardy suit and
waives Unum’s ability to enforce the contractual limitations provision.
We are unconvinced for two reasons. First, Engleson’s 2001 application for
disability benefits and his 2008 application for disability benefits were two separate
claims. Unum treated the requests as such, assigning the latter claim a wholly different
case number. The two could not be reasonably construed as one continuing claim, as the
2008 claim does not refer to its predecessor. Engleson made no mention of the 2001
claim until Unum acknowledged it—after the benefits determination had been made.
In short, we fail to see any lasting connection between the two claims that would lead
us to construe the 2008 letter as a denial of the 2001 claim.
Second, even assuming that we accept Engleson’s argument that either the 2008
grant-of-benefits letter or the 2009 letter refusing another internal appeal constituted an
adverse benefit determination as to the 2001 claim, we note that this would have been
the fourth instance in which the earlier claim had been evaluated by the plan. When an
adverse benefit determination is justified in the first instance and later denials are
premised on the initial reason, there has been a “full and fair review” that satisfies
§ 1133 and its regulations. See Brimer v. Life Ins. Co. of N. Am., 462 F. App’x 804, 80809 (10th Cir. 2012). Here, the plan initially provided a reason for denying Engleson’s

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benefits: neither his physical condition nor his depression seemed to impair his ability
to work in 2001. The first internal appellate review maintained the denial of benefits on
the same grounds. So did the second. Unum’s letter of February 10, 2009, if construed
as an adverse benefit determination, did not deviate from the initial reason offered for
denying the claim. Hence, Unum had no need to repeat the specific reasons for declining
to reconsider Engleson’s appeal.
C.
We now address Engleson’s contention that Unum’s summary plan description
(SPD) did not comply with section 2520.102-3(s) of the 2009 edition of the Code of
Federal Regulations.2 The rule reads, in pertinent part:
The following information shall be included in the summary plan
description of both employee welfare benefit plans and employee pension
benefit plans
...
(s) The procedures governing claims for benefits (including procedures
for obtaining preauthorizations, approvals, or utilization review decisions
in the case of group health plan services or benefits, and procedures for
filing claim forms, providing notifications of benefit determinations, and
reviewing denied claims in the case of any plan), applicable time limits,
and remedies available under the plan for the redress of claims which are
denied in whole or in part (including procedures required under section
503 of Title I of the Act).
29 C.F.R. § 2520.102-3 (2009). Engleson contends that the phrase “applicable time
limits” includes disclosure of contractual time limits for judicial review.
At least one district court in this circuit agrees with his view. See Richards v.
Johnson & Johnson, 688 F. Supp. 2d 754, 779-80 (E.D. Tenn. 2010). So, too, does a
circuit judge—albeit one from outside of this circuit, writing in dissent. See Chalker v.
Raytheon Co., 291 F. App’x 138, 149 (10th Cir. 2008) (Briscoe, J., dissenting).

2

Engleson asserts that this alleged regulatory violation informs the equitable tolling analysis. We
disagree, and discern no reason why his argument with respect to the inadequacy of the SPD should not
be discretely evaluated.

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Unfortunately for Engleson, however, we are unpersuaded by any of the rationales
espoused in support of his position.
In Richards, the district court concluded that an SPD’s silence as to the existence
of a contractual limitations period created a direct conflict with the twelve-month
limitations period denoted in the plan. Richards, 688 F. Supp. 2d at 779. It understood
our decision in Edwards v. State Farm Mutual Auto Insurance Co., 851 F.2d 134
(6th Cir. 1988), to suggest that “the terms of an SPD will control because it is unfair ‘to
publish and distribute a plan summary booklet designed to simplify and explain a
voluminous and complex document and then proclaim that any inconsistencies will be
governed by the plan.’” Richards, 688 F. Supp. 2d at 778 (quoting Edwards, 851 F.2d
at 136). Because the SPD was silent, the court concluded that the state statute of
limitations controlled. See id. at 780.
The persuasive value of Richards’s rationale has dramatically waned since the
Supreme Court’s decision in CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). The
Amara Court made clear that SPDs have a singular purpose:

“clear, simple

communication.” Amara, 131 S. Ct. at 1877. Giving SPDs controlling weight, the Court
reasoned, “could well lead plan administrators to sacrifice simplicity and
comprehensibility in order to describe plan terms in the language of lawyers.” Id. at
1877-78.
Since Amara, we have observed that SPDs are not “legally binding,” nor “‘parts’
of the benefit plans themselves.” Moore v. Menasha Corp., 690 F.3d 444, 455-56 (6th
Cir. 2012) (citing Amara, 131 S. Ct. at 1877-78). Because SPDs lack controlling effect
in the face of plan language to the contrary, we do not feel compelled to read the
regulation in a manner that requires sweeping, comprehensive disclosure, as Engleson
asks us to do.
Further undermining the Richards rationale is our subsequent decision in Lipker
v. AK Steel Corp., 698 F.3d 923 (6th Cir. 2012). In Lipker, we held that “[s]ilence in the
SPD regarding a term the plan defines more explicitly does not make out a ‘conflict[,]’”
id. at 931, contradicting one of the Richards court’s foundational assumptions. The

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Lipker court invoked the same concerns as the Amara Court in emphasizing the need to
maintain the SPD’s simplicity; it reiterated the “obvious” reality that “a summary will
not include every detail of the thing it summarizes.” Id. Our desire to maintain the
“summary” characteristic of SPDs seems to militate against the Richards court’s
conclusion that the “applicable time limits” provision of section 2520.102-3(s) includes
disclosure of contractual time limits on judicial review.
We now turn to Judge Briscoe’s dissent in Chalker. While her interpretation of
the regulation is a reasonable one, it similarly appears to be incorrect. Judge Briscoe
understands the phrase “applicable time limits” as extending to “procedures governing
claims for benefits,” which sequentially precedes the time-limit phrase, as well as
“remedies available under the plan,” which is sequentially subsequent. Chalker, 291 F.
App’x at 149 (Briscoe, J., dissenting).
But the last antecedent rule provides us with a different reading of the regulation.
Under this interpretive canon, “a limiting clause or phrase . . . modifies only the noun
or phrase that it immediately follows.” In re Sanders, 551 F.3d 397, 399 (6th Cir. 2008)
(modifications in original omitted). With respect to section 2520.102-3(s), only
“procedures governing claims for benefits” precedes the phrase “applicable time limits.”
Therefore, the general phrase “applicable time limits” extends only to the terms that
precede it, i.e., time limits need only be disclosed with respect to the processing of
claims.
Mindful of this interpretation, we conclude that Unum’s SPD complied with the
regulation. The SPD provided “applicable time limits” as to certain parts of the claims
process, such as the plan administrator’s obligation to provide a claim response within
90 to 180 days and the claimant’s right to seek plan documents by filing suit in federal
court after 30 days of noncompliance. Unum complied with the requirement of
disclosing the time limits for the “remedies available under the plan for the redress of
claims” by (1) explaining the internal appeals process; and (2) noting the claimant’s right
to “file suit in a state or federal court” for claims that have been denied or ignored.
Hence, we reject Engleson’s contention that Unum violated section 2520.102-3(s).

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IV.
Finding nothing in the ERISA regulations to excuse Engleson’s tardiness, we
now look to the common law. Engleson argues that Unum waived its right to enforce
the contractual limitations period in its 2008 correspondence. Specifically, he points to
language in Unum’s letter of December 28, 2008, where it stated: “If you or your
physician(s) have additional information to support your request for disability benefits
based upon an earlier date of disability, we will be happy to reconsider your claim.”
As there is no established federal common law in this circuit that governs the
question of whether a plan administrator has affirmatively waived a contractual
limitations provision, we “look to state-law principles for guidance.” Tinsley v. Gen.
Motors Corp., 227 F.3d 700, 704 (6th Cir. 2000). While contractual limitations periods
are generally enforced irrespective of state law so long as they are reasonable, see Med.
Mutual of Ohio v. k. Amalia Enters. Inc., 548 F.3d 383, 390-91 (6th Cir. 2008), the
present case does not raise the question as to whether the period is reasonable, but
whether the period was waived.
State insurance law is most analogous to ERISA; therefore, we look to Ohio
insurance caselaw to determine whether Unum waived its contractual limitations
defense. Engleson recognizes that the biggest roadblock to his waiver argument is our
past reliance on the Ohio Supreme Court’s decision in Hounshell v. American States
Insurance Co., 424 N.E.2d 311, 314 (Ohio 1981). Under Hounshell, “[a]n insurer . . .
loses the right to assert its contractual statute of limitations if, ‘by its actions or
declarations, it evidences a recognition of liability under the policy, and the evidence
reasonably shows that such expressed recognition of liability and offers of settlement
have led the insured to delay in bringing an action on the insurance contract.’” Jackson
v. State Farm Fire & Cas. Co., 461 F. App’x 422, 425-26 (6th Cir. 2012) (quoting Klein
v. State Farm Fire & Cas., 250 F. App’x 150, 155 (6th Cir. 2007)) (modifications in
original omitted); accord Hounshell, 424 N.E.2d at 314. An insurer’s decision to
reconsider the validity of a claim, however, “does not constitute a waiver of the

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limitations clause.” Jackson, 461 F. App’x at 425-26 (quoting Hounshell, 424 N.E.2d
at 314).
In Engleson’s view, the Hounshell test is not the only means by which a court
can discern waiver under Ohio law. He refers us to the Ohio Supreme Court’s decision
in Dominish v. Nationwide Insurance Co., 953 N.E.2d 820 (Ohio 2011), where the court
noted that it did not “consider the [Hounshell] test to be the exclusive way to determine
whether an insurance company has waived its right to enforce a limitation-of-action
clause.” Id. at 822. As an alternative test, Engleson offers up the generalized
proposition that waiver is a “voluntary relinquishment of a known right.” See State ex
rel. Wallace v. State Med. Bd. of Ohio, 732 N.E.2d 960, 965 (Ohio 2000). But we need
more than mere relinquishment—the waiver must be “a clear, unequivocal, and decisive
act of the party against whom the waiver is asserted.” See Warmack v. Arnold, 961
N.E.2d 1165, 1170 (Ohio Ct. App. 2011) (quoting White Co. v. Canton Transp. Co., 2
N.E.2d 501, 505 (Ohio 1936)). Engleson’s alternative test is more exacting than he
portrays it.
Neither Hounshell nor the general waiver rule bodes well for Engleson’s
argument; in some sense, he has fashioned a choose-your-own-adventure for himself in
which both choices lead to disappointment. Under the Hounshell test, his waiver
argument is unavailing because Unum’s December 2008 letter—if construed as an
agreement to reconsider Engleson’s 2001 claim denial—is mere reconsideration, not
waiver. See Jackson, 461 F. App’x at 426. By proposing the alternative standard,
Engleson indicates that he already knew his argument would be futile under Hounshell;
therefore, we turn to the general waiver rule.
Even assuming arguendo that it is appropriate for us to consider the general
waiver rule in attempting to discern a limitations waiver, Engleson’s proposed standard
is of no help here; the December 2008 letter lacks the clarity, directness, and
decisiveness that the general waiver rule demands. As an initial matter, the letter is
somewhat ambiguous as to which period may be reconsidered; it does not clarify
whether it is referring to the 2001 or 2008 claim. Moreover, it is not entirely obvious

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whether Unum agreed to take affirmative steps towards reconsideration—the
correspondence merely suggested that Unum would be “happy to” reconsider upon
submission of additional information, placing the ball in Engleson’s court. Finally, and
perhaps more to the point, Unum’s letter says nothing about waiving the limitations
period. Taking all this into consideration, Engleson’s waiver argument fails even under
his own standard.
V.
As nothing in the law excuses Engleson’s tardiness, we now turn to his argument
arising in equity. He contends that he is entitled to equitable tolling and challenges the
propriety of the district court’s decision to apply the five-part equitable-tolling test of
Longazel v. Fort Dearborn Life Insurance Co., 363 F. App’x 365 (6th Cir. 2010), in
denying his claim.
The “Longazel test”—which, in reality, reflects longstanding circuit
precedent—consists of five considerations:

“(1) lack of actual notice of filing

requirement; (2) lack of constructive knowledge of filing requirement; (3) diligence in
pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a plaintiff’s
reasonableness in remaining ignorant of the notice requirement.” Id. (quoting Andrews
v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)). Instead of framing his arguments under this
standard, Engleson argues that the Supreme Court’s decision in Amara relaxed the
standard for demonstrating equitable tolling in ERISA cases.
Amara is not the judicial panacea that Engleson thinks it is. The Court’s decision
there did not address equitable tolling, and we can extrapolate nothing from it that
disturbs our five-part test for equitable tolling in ERISA cases. While Engleson
correctly points out that the Amara Court discussed detrimental reliance and the
relaxation of the requirement to show such reliance in seeking certain equitable
remedies, our equitable tolling test does not require detrimental reliance, only reasonable
ignorance. See Andrews, 851 F.2d at 151.

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So, mindful of the guideposts to our inquiry, we turn to the specific events that
allegedly entitle Engleson to equitable tolling: Engleson never received any plan
documents until shortly before litigation, and the plan administrator did not timely
respond to his request for information. We conclude that Engleson was not diligent in
pursuing his rights, thus failing under the fourth prong of our five-part test.
Consider the beneficiary in the First Circuit decision of Ortega Candelaria v.
Orthobiologics LLC, 661 F.3d 675 (1st Cir. 2011). There, a plan participant requested
a copy of the plan in 2000, well before suffering any disability. Id. at 677. At the time,
the plan had no limitations period for filing suit. Id. The participant fell ill and filed for
disability benefits in 2003, having suffered severe pain since the year before. Id. In
2004, while engaged in internal appeals with the plan administrator, the participant
requested another copy of the plan—again, no limitations period had been imposed at
this point. Id. A week after his second request for a copy of the plan, the plan was
amended to include a one-year limitations period for pursuing civil actions. Id. The
participant received no notice. Id. Later, the plan administrator denied the participant’s
appeal, failing to disclose information about judicial review or the new limitations
period. Id. at 677-78.
Over three years later, the participant sought judicial review—like Engleson, he
was under the impression that he had the full length of the state statute of limitations to
file suit. Id. at 678. Citing the one-year contractual limitations period, the plan
administrator claimed that the suit was untimely. Id.
The First Circuit disagreed, explaining that the limitations period was equitably
tolled. It concluded that the administrator’s failure to follow the disclosure regulations
of section 2560.503-1(g)(1)(iv) constituted a material misleading on the part of the plan
administrator. Id. at 680. In concluding that the participant was sufficiently diligent for
equitable tolling, the court took special note of the participant’s repeated requests for
copies of the plan. Id. at 681.
We do not mean to suggest that a participant must replicate the exact series of
unfortunate events that occurred in Ortega Candelaria in order to be entitled to equitable

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tolling. But compare the Ortega Candelaria participant to Engleson—the former made
repeated attempts to learn about the limitations period, while the latter did not request
a copy of the plan documents until just prior to the commencement of litigation.
Nothing in the record suggests Engleson made an attempt to obtain a copy of the plan
before his disability or during the internal review processes. A plan participant that
makes no effort to keep himself informed—even during internal review of his
claim—can hardly assert that he was diligent in pursuing his benefits. Accordingly, we
cannot conclude that Engleson is entitled to equitable tolling.
Engelson’s argument that “UNUM failed to provide [him with] the pertinent
documents which he requested in his letter of September 24, 2001” is similarly
unavailing. In posing such a contention, Engleson provides us with some interesting
logic: because the administrative record does not reflect whether Unum actually sent the
contents of his claim file, Unum must have withheld information that was necessary for
his appeal.
From the outset, we note that nothing in the record suggests bad faith on Unum’s
part. Instead, the record reflects that Unum provided Engelson with an administrative
file in response to his request.
Under these circumstances, Unum had no burden to prove what was in the file.
As equitable tolling is a defense to the assertion that a suit is out-of-time by statute or
by contract, see In re Maughan, 340 F.3d 337, 344 (6th Cir. 2003), the burden of proving
entitlement to such a defense falls to the party attempting to invoke it, i.e., Engelson, see
Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). Unum is not the party
invoking the defense of equitable tolling; therefore, it does not bear the burden of
proving the contents of this file.
VI.
Engleson provides us with no valid basis—either in law or equity—that would
allow us to excuse the tardiness of his suit. Accordingly, we AFFIRM the decision of
the district court.