RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0436p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellant, -
MEDICAL MUTUAL OF OHIO,
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No. 07-4422
v.
,
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k. AMALIA ENTERPRISES INC., et al., -
Defendants-Appellees. -
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 05-00381—Michael H. Watson, District Judge.
Argued: July 24, 2008
Decided and Filed: December 2, 2008
Before: MOORE and SUTTON, Circuit Judges; ALDRICH, District Judge.*
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COUNSEL
ARGUED: Timothy B. Pettorini, CRITCHFIELD, CRITCHFIELD & JOHNSTON, LTD.,
Wooster, Ohio, for Appellant. Christopher L. Lardiere, LARDIERE LAW OFFICES, LLC,
Columbus, Ohio, Joel H. Mirman, ADAMS, BABNER & GITLITZ, LLC, Columbus, Ohio, for
Appellees. ON BRIEF: Timothy B. Pettorini, David J. Wigham, CRITCHFIELD, CRITCHFIELD
& JOHNSTON, LTD., Wooster, Ohio, for Appellant. Christopher L. Lardiere, LARDIERE LAW
OFFICES, Columbus, Ohio, Joel H. Mirman, ADAMS, BABNER & GITLITZ, LLC, Columbus,
Ohio, Stephen E. Chappelear, Jeffrey A. Yeager, HAHN, LOESER & PARKS, L.L.P., Columbus,
Ohio, for Appellees.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Medical Mutual of Ohio
(“MMO”), an insurance company, brought suit against Loan A. Tran (“Tran”) and Khanh B. Luu
(“Luu”) for failing to disclose that their dependent son had a preexisting medical condition
(hemophilia). MMO also included as defendants Tran’s employer, k. Amalia Enterprises Inc. (“k.
Amalia”), which contracted with MMO to provide group health insurance, and k. Amalia’s Chief
Financial Officer, John M. Barr (“Barr”), who signed the group-health-insurance contract on behalf
*
The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by
designation.
1
No. 07-4422 Medical Mutual of Ohio v. k. Amalia Enterprises Inc. et al. Page 2
of k. Amalia. MMO appeals the district court’s grant of summary judgment to k. Amalia, Barr,
Tran, and Luu. Because all of MMO’s claims are barred by a contractual limitations provision, we
AFFIRM the district court’s grant of summary judgment to k. Amalia, Barr, Tran, and Luu and
AFFIRM the district court’s denial of MMO’s motion for reconsideration.
I. BACKGROUND
A. Factual Background
Barr, k. Amalia’s Chief Financial Officer, contracted with MMO to provide a group-health-
insurance plan. He signed the Group Application on October 20, 2001. MMO agreed to cover
k. Amalia’s employees from November 1, 2001, to October 31, 2002; they renewed the contract in
2002, but did not renew it in 2004.
As part of the contract, MMO required k. Amalia employees to complete Medical History
Questionnaires if they wished to be covered by the group-health-insurance plan. Tran, an
employee,1 and her husband completed and signed the “Health and Life Application/Policy Change”
form on October 14, 2001. Joint Appendix (“J.A.”) at 139-41 (Pl.’s Mot. for Leave to Substitute
Original Aff., Ex. A-1). The application submitted by Tran stated that neither Tran nor her
dependents had currently (or had previously had) any of the medical conditions listed on the form,
including hemophilia. Tran also checked a box indicating that neither she nor her dependents “had,
or [had] been treated for, or been told that” they had “any other condition/disorder/disease” that was
not listed explicitly on the form. J.A. at 140 (Pl.’s Mot. for Leave to Substitute Original Aff., Ex.
A-1).
A member of the Financial Investigations Department for MMO stated in his affidavit that
“MMO assessed its risk, determined its rates, and issued the group contract for health insurance to
the K. Amalia group in reliance upon the truth and accuracy of the information in the applications.”
J.A. at 137 (Pl.’s Mot. for Leave to Substitute Original Aff., Ex. A, Ferrara Aff. ¶ 5). The contract
gave MMO “the right to void a Covered Person’s coverage if that person engages in fraudulent
conduct relating to an Application.” J.A. at 106 (Contract at § 5.5). The contract also contained the
following contractual limitations provision:
No action at law or in equity shall be brought to recover on this policy prior to the
expiration of sixty (60) days after written proof of loss has been furnished in
accordance with the requirements of this policy. No such action shall be brought
after the expiration of three (3) years after the time written proof of loss is required
to be furnished. In the case of legal action other than those to recover benefits, no
such action may be brought more than two (2) years from the date the cause of action
arises.
J.A. at 105 (Contract at § 5.3).
In August 2004, MMO conducted an audit that revealed Tran’s dependent son, Hiep Luu,
had a pre-existing condition—hemophilia—that had not been disclosed on the insurance application.
MMO admits that it knew Hiep Luu had hemophilia “on or before February 1, 2002,” but claims that
it did not know that this was a pre-existing condition. J.A. at 92 (Req. for Admis. No. 27). MMO
estimates that it paid approximately $525,000 for claims related to Hiep Luu’s treatment before it
realized that he had been diagnosed with hemophilia before Tran completed the MMO insurance
application.
1
Tran worked for MJR International, which was affiliated with k. Amalia. There was one group-health plan
for both companies.
No. 07-4422 Medical Mutual of Ohio v. k. Amalia Enterprises Inc. et al. Page 3
“MMO processes approximately 102,000 claims per day and has approximately 1.6 million
subscribers.” J.A. at 138 (Pl.’s Mot. for Leave to Substitute Original Aff., Ex. A, Ferrara Aff. ¶ 9).
MMO admits that some of the claims filed on behalf of Hiep Luu referred to a treatment/drug known
as “Factor VIII (Antihemophilic Factor, Recombinant), per IU,” J.A. at 88 (Req. for Admis. No. 9),
and that “it had access to the procedure code prescription/drug name . . . when it decided whether
to pay or deny the claims,” J.A. at 92 (Req. for Admis. No. 25). Also, MMO admits that “an
‘antihemophilic’ treatment would be administered to an individual afflicted by hemophilia,” J.A. at
91 (Req. for Admis. No. 23), and that it paid a claim for such a treatment in February 2002. J.A. at
88-89 (Req. for Admis. No. 11). Finally, MMO admits that it had never informed k. Amalia or Barr
of Hiep Luu’s medical-claims history.
B. Procedural Background
MMO filed suit against k. Amalia, Barr, Tran, and Luu on April 14, 2005. In its Complaint,
MMO alleged that Tran, Luu, k. Amalia, and Barr breached the insurance contract, made negligent
misrepresentations, and engaged in fraudulent behavior. MMO sought compensatory damages for
these claims. MMO also sought partial rescission of the contract, as it related to health-insurance
coverage of Tran and her dependents. For this claim, MMO requested that the court provide
“restitution . . . in an amount to be determined at trial, but believed to exceed $500,000.00, plus
interest, attorney fees and court costs.” J.A. at 23 (Compl. ¶ 69). Finally, MMO brought a claim
against Tran and Luu, alleging that they had been unjustly enriched by their failure to disclose their
son’s condition and seeking compensatory damages. K. Amalia filed an answer that included
counterclaims alleging that the litigation was “frivolous,” that MMO had tortiously interfered with
k. Amalia’s current and future contractual relations, that MMO had negligently handled “the
analysis and payment of claims,” and that MMO had breached its contract with k. Amalia. J.A. at
52 (Answer and Countercl. at 17). K. Amalia sought compensatory damages in excess of
$50,000.00 on its counterclaims.
K. Amalia, Barr, Tran, and Luu filed a joint motion for summary judgment on July 24, 2006,
claiming that MMO had failed to file its suit within the contractual limitations period. MMO filed
a response in opposition to the summary-judgment motion on August 18, 2006. Depositions of Tran
and Luu were taken in December 2006. The district court granted the motion for summary judgment
on May 7, 2007, several days after the discovery-cutoff date had passed. MMO filed a Motion 2
for
Reconsideration on September 5, 2007, which the district court denied the following day. After
the parties stipulated to the dismissal of the counterclaims without prejudice,3 MMO filed a timely
appeal.
II. SUBJECT-MATTER JURISDICTION
Although the district court did not analyze subject-matter jurisdiction, and the parties have
not contested our jurisdiction, we must independently satisfy ourselves that the federal courts have
subject-matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998);
Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 178 (1988). To that end, we requested letter briefs
2
The facts described above include only information presented to the district court in the motion for summary
judgment and response in opposition to the motion for summary judgment. Depositions of k. Amalia’s President, Jeffrey
Bradshaw, Barr, Tran, and Luu were taken after MMO’s response in opposition to k. Amalia, Barr, Tran, and Luu’s joint
motion for summary judgment; we note, however, that these depositions were taken several months prior to the district
court’s ruling. MMO did not seek to supplement the record before the district court prior to its summary-judgment
ruling. Only after the district court granted summary judgment to k. Amalia, Barr, Tran, and Luu did MMO seek to
introduce these depositions through a motion for reconsideration.
3
After granting summary judgment, the district court entered a final judgment on May 7, 2007, not taking into
account that unresolved counterclaims existed. It acknowledged its mistake on May 24, 2007 and reopened the case.
No. 07-4422 Medical Mutual of Ohio v. k. Amalia Enterprises Inc. et al. Page 4
addressing jurisdiction prior to oral argument. Federal-question jurisdiction, 28 U.S.C. § 1331, in
this case is premised on MMO’s federal cause of action brought under the Employee Retirement
Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). Specifically, MMO asserted a
claim under ERISA’s civil-enforcement provision, § 502(a)(3), 29 U.S.C § 1132(a)(3), seeking
partial rescission of the contract between MMO and k. Amalia.
Section 1132(a)(3) provides that a fiduciary may bring a civil action “(A) to enjoin any act
or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain
other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of
this subchapter or the terms of the plan.” 29 U.S.C § 1132(a)(3). “Dismissal for lack of subject-
matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is
‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely
devoid of merit as not to involve a federal controversy.’” Steel Co., 523 U.S. at 89 (quoting Oneida
Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)). Subject-matter jurisdiction
is defeated only if the federal “claim ‘clearly appears to be immaterial and made solely for the
purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.’” Id.
(quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)).
Whatever the merits of MMO’s § 1132(a)(3) claim for equitable relief, it is clear that this
claim is not “wholly insubstantial and frivolous.” Id. There is no dispute that MMO is a fiduciary,
that the plan at issue in this case qualifies as an ERISA plan, and that none of the statutory
exemptions from ERISA are applicable. As a fiduciary, MMO may, pursuant to 29 U.S.C.
§ 1132(a)(3), seek “appropriate equitable relief” to redress violations of ERISA or to enforce the
terms of the plan. The only remaining threshold question regarding MMO’s § 1132(a)(3) claim is
whether that claim and the relief requested from the district court—rescission of the
contract—should be characterized as “equitable” or “legal.” Cf. Sereboff v. Mid Atlantic Med.
Servs., Inc., 547 U.S. 356 (2006); Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204
(2002). As discussed below, this issue was not raised by the parties and therefore we do not pass
on it. In any case, the answer is irrelevant to our subject-matter jurisdiction inquiry. Even if the
contract rescission requested by MMO were characterized as “legal” relief and therefore failed to
state a claim upon which relief could be granted, federal courts would nonetheless have subject-
matter jurisdiction. See Primax Recoveries, Inc. v. Gunter, 433 F.3d 515, 520-21 (6th Cir. 2006)
(“In sum, we hold that a district court has subject-matter jurisdiction over an action ostensibly
brought under 29 U.S.C. § 1132(a)(3) apparently for solely legal relief, even if that action fails to
state a claim upon which relief can be granted.”). Accordingly, we conclude that there is subject-
matter jurisdiction over this action.
III. MOTION FOR SUMMARY JUDGMENT AND MOTION
FOR RECONSIDERATION
A. Standards of Review
We review a district court’s grant of summary judgment de novo. Mazur v. Young, 507 F.3d
1013, 1016 (6th Cir. 2007). “Summary judgment is proper if the evidence, taken in the light most
favorable to the nonmoving party, shows that there are no genuine issues of material fact and that
the moving party is entitled to a judgment as a matter of law.” Id. (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); FED. R. CIV. P. 56(c)). “Because we review
the grant of summary judgment de novo, we may affirm the judgment on grounds other than those
employed by the lower court, as long as the party opposing summary judgment is not denied the
opportunity to respond.” Thornton v. Fed. Express Corp., 530 F.3d 451, 456 n.2 (6th Cir. 2008);
see also Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 553 (6th Cir. 2008).
No. 07-4422 Medical Mutual of Ohio v. k. Amalia Enterprises Inc. et al. Page 5
Although we usually review for abuse of discretion a district court’s denial of a motion to
reconsider, when a party files a motion for reconsideration of a grant of summary judgment we
review the district court’s decision de novo. Sommer v. Davis, 317 F.3d 686, 691 (6th Cir.), cert.
denied, 540 U.S. 824 (2003). However, “[a] district court’s refusal to consider evidence produced
for the first time on a motion to reconsider will be reversed only if the refusal constitutes an abuse
of discretion.” Id.
B. ERISA Claim
We may assume without having to decide that MMO’s partial-rescission claim states an
“equitable” claim cognizable under § 1132(a)(3).4 MMO’s claim is nonetheless barred by the
limitations provision of the contract between MMO and k. Amalia, which provides:
No action at law or in equity shall be brought to recover on this policy prior to the
expiration of sixty (60) days after written proof of loss has been furnished in
accordance with the requirements of this policy. No such action shall be brought
after the expiration of three (3) years after the time written proof of loss is required
to be furnished. In the case of legal action other than those to recover benefits, no
such action may be brought more than two (2) years from the date the cause of action
arises.
J.A. at 105 (Contract at § 5.3). The district court assumed that the two-year provision applied to all
of MMO’s claims, and MMO’s brief on appeal repeatedly refers to the two-year limit. MMO Br.
at 35, 37, 38. We note, however, that the two-year provision, which refers to a “legal action,” could
plausibly be read as referring only to actions at law so as not to include equitable claims. See 4
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1041 (3d
ed. 2008) (discussing the historical distinction between “actions at law” and “suits in equity”).
However, we need not decide whether it is the two-year provision or the three-year provision that
applies to MMO’s claim. As we explain below, because MMO’s claim accrued in February 2002
but MMO did not bring suit until April 14, 2005, more than three years later, MMO’s claim is barred
even if we assume that only the three-year provision applies.
ERISA does not provide a statute of limitations for suits brought by a fiduciary under
§ 1132(a)(3).5 When a federal statute contains no limitations period, we normally borrow the
limitations period from the most “analogous” state or federal law. Lampf, Pleva, Lipkind, Prupis
& Petigrow v. Gilbertson, 501 U.S. 350, 355-58 (1991); Wilson v. Garcia, 471 U.S. 261, 266-67
(1985). However, choosing which statute to borrow is unnecessary when the parties have
contractually agreed on a limitations period and that limitations period is reasonable. See Morrison
v. Marsh & McLennan Cos., 439 F.3d 295, 301-03 (6th Cir. 2006) (upholding application of three-
year contractual limitations period contained in benefits handbook to ERISA action); see also
Northlake Reg’l Med. Ctr. v. Waffle House Sys. Employee Benefit Plan, 160 F.3d 1301, 1303 (11th
Cir. 1998) (holding that “contractual limitations periods on ERISA actions are enforceable,
regardless of state law, provided they are reasonable”); Doe v. Blue Cross & Blue Shield United of
Wis., 112 F.3d 869, 875 (7th Cir. 1997) (holding that contractual limitations periods “if reasonable
4
Because the parties did not raise the issue, we decline to pass on whether or not MMO’s partial-rescission
claim states a claim for “equitable” relief under § 1132(a)(3). See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
127 S. Ct. 1184, 1191 (2007) (recognizing “that a federal court has leeway to choose among threshold grounds for
denying audience to a case on the merits” (internal quotation marks omitted)). In any event, we would reach the same
result since MMO’s claim is barred under the contractual limitations period.
5
The statute of limitations provided by 29 U.S.C. § 1113 applies only to suits brought to redress a fiduciary’s
breach of its responsibilities, duties, or obligations under ERISA.
No. 07-4422 Medical Mutual of Ohio v. k. Amalia Enterprises Inc. et al. Page 6
are enforceable in suits under ERISA, regardless of state law”). Because the contract language
clearly states that the parties shall have either two years or three years to bring the claim at issue and
MMO did not present arguments indicating that a limitations period of two or three years would be
unreasonable, we find no reason to believe that the contractual limitations provision here is
unreasonable. Accordingly, we uphold the district court’s finding that the limitations provision
applies to this case.
We now turn to MMO’s argument that because it did not discover the alleged fraud until
August 2004, the “discovery rule” makes its suit, filed on April 14, 2005, timely under the
contractual two-year limitations period. As a preliminary matter, although the parties and the district
court assumed that Ohio law governed application of the “discovery rule,” we have held that the
“discovery rule” is a matter of federal common law in the context of ERISA claims under
§ 1132(a)(3). Mich. United Food & Commercial Workers Unions v. The Muir Co., 992 F.2d 594,
598 (6th Cir. 1993) (“Although the statute of limitations may be borrowed from state law, it is
federal law that determines the date on which a statute of limitation[s] begins to run.”). The
presence in the parties’ contract of a choice-of-law provision stating that the contract will be
governed by “the laws of the state of Ohio,” J.A. at 115 (Contract at § 10.8), does not change this
result. As we have observed elsewhere, “‘the normal purpose of such choice of law clauses is to
determine that the law of one state rather than that of another state will be applicable; they simply
do not speak to any interaction between state and federal law.’” Ferro Corp. v. Garrison Indus.,
Inc., 142 F.3d 926, 938 (6th Cir. 1998) (quoting Volt Info. Sciences, Inc. v. Bd. of Trustees, 489 U.S.
468, 488 (1989) (Brennan, J., dissenting)).
Under the general formulation of the discovery rule, a claim accrues (and the statute of
limitations begins to run) when the plaintiff discovers, or in the exercise of due diligence should
have discovered, the injury which forms the basis for his claim. See, e.g., Dixon v. Clem, 492 F.3d
665, 671 (6th Cir. 2007); Mich. United Food, 992 F.2d at 598 (collecting cases). In the context of
fraud, we have “imposed upon the plaintiff a positive duty to use diligence in discovering the
existence of a cause of action.” Herm v. Stafford, 663 F.2d 669, 682 (6th Cir. 1981). We have also
held that “[i]nformation sufficient to alert a reasonable person to the possibility of wrongdoing gives
rise to a party’s duty to inquire into the matter with due diligence.” Mich. United Food, 992 F.2d
at 600 (alteration in original) (internal quotation marks omitted). And in determining whether a
plaintiff was reasonably diligent, we have stated that a plaintiff’s “superior personnel and equipment
with which to detect foreseeable . . . error” is relevant to the inquiry. Id.
MMO had access to information more than three years before it filed suit that, in the exercise
of due diligence, should have allowed it to discover that Hiep Luu had a pre-existing condition. At
least as early as February 2002, MMO had the following information: (1) Tran and Luu did not
disclose hemophilia as a pre-existing condition for Hiep Luu, and (2) within a few months of the
contract’s formation, on February 1, 2002, MMO had paid over $8,000 worth of hemophilia
treatments for Hiep Luu. See J.A. at 219-20 (Claims Paid Chart at 1-2). Yet MMO did not file suit
until April 14, 2005, more than three years after it began paying claims for Luu’s hemophilia
treatment. MMO argues that it did not discover that Tran and Luu had misrepresented Hiep Luu’s
health status on their application until an audit that MMO conducted in August 2004. Although
MMO may have obtained actual knowledge that Hiep Luu had a pre-existing condition only in
August 2004, we conclude that it reasonably should have discovered this fact in February 2002.
In Michigan United Food, we affirmed summary judgment against the plaintiff, a union
welfare fund, which had brought suit under ERISA to recover alleged employer underpayments to
the fund. 992 F.2d at 597-600. Like MMO, the plaintiff in Michigan United Food did not have
actual knowledge of its causes of action until it completed an internal audit, and similarly relied
upon the “discovery rule” to argue that its claims were not barred by the limitations period. Id. at
597. Noting that the plaintiff “possessed both the data and the qualified personnel necessary to
No. 07-4422 Medical Mutual of Ohio v. k. Amalia Enterprises Inc. et al. Page 7
detect [the] errors” on which it brought suit, we concluded that “[i]ts failure to detect the errors until
the audit [was] attributable to a lack of diligence.” Id. at 600.
Viewing all of the evidence in the light most favorable to MMO, we believe the same
reasoning applies here. MMO is a sophisticated insurance company that had in its hands for more
than three years before it filed suit sufficient information to place it on notice of the possibility of
fraud. MMO did not provide any evidence that would explain why it was not capable of conducting
an audit prior to 2004, nor did it indicate that it had access to information in 2004 to which it
previously did not have access. We conclude that MMO’s claims accrued in February 2002, when
it began paying claims for Hiep Luu’s hemophilia treatment and should have discovered that it had
a cause of action. MMO did not file suit until April 14, 2005, more than three years later.
Accordingly, whether the applicable limitations period is two or three years, we conclude that
MMO’s ERISA claim is barred by the contractual limitations provision.
C. Remaining Claims
MMO also brought claims for fraud, negligent misrepresentation, breach of contract, and
unjust enrichment. There is some confusion in the record before us about whether MMO brought
these claims under federal common law or under Ohio law. The complaint does not state that these
four claims were brought pursuant to Ohio law, but the district court’s opinion assumed that this was
the case. Indeed, the appellate briefs originally filed by the parties address only Ohio law. MMO
first discussed the applicability of federal common law in the letter brief that it filed in response to
our request that all of the parties address our jurisdictional questions prior to oral argument.
However, MMO did not state definitely that it thought federal common law applied, only that the
claims were “either cognizable under the federal common law of ERISA or [were] state law claims
which were not preempted” and would qualify for supplemental jurisdiction under 28 U.S.C.
§ 1367(a). 7/11/2008 MMO Ltr. Br. at 13 (emphasis added). We do not rule on whether MMO’s
additional claims were brought under Ohio law or federal common law, because in either case they
would be barred by either the two-year or three-year contractual limitations provision.
First, we assume without deciding that MMO asserts these claims under Ohio law.
Defendants-appellees argue for the first time in their letter briefs that MMO’s claims are preempted
by ERISA. We do not reach the question of ERISA preemption, however, because even if we were
to conclude that MMO’s claims were not preempted by ERISA, the claims would be barred by the
contractual limitations provision. See, e.g., Cent. States, Se. & Sw. Area Health & Welfare Fund
v. Coffer, No. 85-1690, 1986 WL 16215 (6th Cir. Dec. 17, 1986) (unpublished opinion) (declining
to reach question of ERISA preemption because plaintiff’s state-law claim failed on the merits); see
also Sinochem, 127 S. Ct. at 1191 (recognizing “that a federal court has leeway to choose among
threshold grounds for denying audience to a case on the merits” (internal quotation marks omitted)).
Our analysis of the contractual limitations provision under Ohio law is virtually identical to
our earlier analysis of the limitations provision under federal law. Under Ohio law, a contractual
limitations provision that reduces the time available to bring an action on a contract is enforceable
so long as it is reasonable and is stated in words that are “clear and unambiguous.” Angel v. Reed,
891 N.E.2d 1179, 1181 (Ohio 2008). As we explained above, the contractual limitations provision
here is reasonable and was clearly and unambiguously set forth in the contract between MMO and
k. Amalia; it is therefore enforceable under Ohio law. Ohio courts also apply a version of the
“discovery rule” to state-law fraud claims that mirrors the federal rule that we applied to MMO’s
ERISA claim. Wooten v. Republic Sav. Bank, 876 N.E.2d 1260, 1267 (Ohio Ct. App. 2007) (“[T]he
limitations period [for fraud claims] begins to run when the claimant discovered or, in the exercise
No. 07-4422 Medical Mutual of Ohio v. k. Amalia Enterprises Inc. et al. Page 8
of reasonable care, should have discovered the fraud.” (internal quotation marks omitted)).6 Under
the same reasoning that we applied to MMO’s ERISA claim, supra, we conclude that MMO’s fraud
claim (assuming that it is brought under Ohio law) would not be saved by Ohio’s discovery rule
because MMO should have discovered that it had a cause of action in February 2002, when it began
paying claims for Hiep Luu’s hemophilia treatment. Accordingly, assuming these claims were
brought under Ohio law, they are barred by the contractual limitations period.
Next, we assume without deciding that MMO’s claims for fraud, negligent
misrepresentation, breach of contract, and unjust enrichment were brought under the federal
common law.7 For the same reasons set forth in our analysis of MMO’s ERISA claim, supra,
MMO’s claims would be barred by either the two-year or three-year contractual limitations period.
In sum, we hold that the district court did not err when it dismissed MMO’s claims for fraud,
negligent misrepresentation, breach of contract, and unjust enrichment as barred by the contractual
limitations provision.
D. Motion for Reconsideration
After the district court granted summary judgment, MMO filed a motion for reconsideration,
presenting new arguments and evidence from depositions taken between the summary-judgment
briefing and the district court’s decision. MMO also contended in that motion that the district court
clearly erred when it analyzed the contractual limitations provision at issue. MMO now argues that
the district court erred by not considering the “new” evidence it presented in its motion for
reconsideration. K. Amalia, Barr, Tran, and Luu contend that the district court properly denied
MMO’s motion for reconsideration.
Neither of MMO’s arguments affect our holding that all of MMO’s claims are barred by the
contractual limitations provision. Federal Rule of Civil Procedure 60(b) provides that a “court may
relieve a party . . . from a final judgment, order, or proceeding” for several reasons, including:
“(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to move for a new trial under Rule
59(b) . . . or (6) any other reason that justifies relief.” FED. R. CIV. P. 60(b). Even if we were to
assume that the depositions introduced could be considered “new” information,8 we would still
reach the conclusion that MMO failed to file a claim within the contractual limitations period,
6
MMO’s claims for negligent misrepresentation, breach of contract, and unjust enrichment would apparently
not enjoy the protections of the discovery rule. See Dancar Props., Ltd. v. O’Leary-Kientz, Inc., No. C-030936, 2004
WL 2974067, at *2 (Ohio Ct. App. Dec. 23, 2004) (unpublished opinion) (expressing doubt that discovery rule applies
to claims for negligent misrepresentation); Hahn v. Jennings, No. 04AP-24, 2004 WL 2008474, at *7 (Ohio Ct. App.
Sept. 9, 2004) (unpublished opinion) (“[W]e know of no case in which a tort-style discovery rule has been applied to
a breach of express warranty action sounding in contract.”); Palm Beach Co. v. Dun & Bradstreet, Inc., 665 N.E.2d 718,
722-23 (Ohio Ct. App. 1995) (holding that discovery rule does not apply to unjust-enrichment claims).
7
We express no opinion on whether such claims would be cognizable as a matter of federal common law.
8
Despite the fact that MMO considers the allegedly “newly discovered” evidence to be critical to its case now,
we note that MMO did not file a motion under Federal Rule of Civil Procedure 56(f) when it responded to the motion
for summary judgment. Rule 56(f) provides: “If a party opposing the motion shows by affidavit that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a
continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue
any other just order.” FED. R. CIV. P. 56(f). A Rule 56(f) motion could have allowed MMO to introduce the depositions
that had not yet been taken as part of the response to the summary-judgment motion. We agree with the district court’s
analysis: “If the state of the evidence was incomplete when [MMO’s] response to the summary judgment motion was
due, [MMO] should have sought relief pursuant to Fed. R. Civ. P. 56(f).” J.A. at 267 (9/6/2007 Order). “[P]iecemeal
presentation of the summary judgment issues” is not appropriate. Id.
No. 07-4422 Medical Mutual of Ohio v. k. Amalia Enterprises Inc. et al. Page 9
because MMO did not introduce evidence in its motion for reconsideration that would establish that
it could not have discovered the alleged fraud in February 2002.
In its motion for reconsideration, MMO also made the new argument that several of the
relevant payments for hemophilia fell within the limitations period, and that it should at least be
allowed to recover these amounts. That argument is without merit because a “continuing violation
is occasioned by continual unlawful acts, not continual ill effects from an original violation.” Eidson
v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 635 (6th Cir. 2007) (internal quotation marks
omitted). The individual medical claims did not count as discrete wrongs, but merely perpetuated
the harm from the original wrong—the statements and omissions contained in the application
submitted by Tran. Thus, MMO’s argument does not affect the conclusion that MMO’s claim
accrued when it first began paying out benefits for hemophilia treatment in February 2002.
Based on the foregoing, we hold that the district court properly denied the motion for
reconsideration.
IV. CONCLUSION
Because all of MMO’s claims are barred by the contractual limitations period, we AFFIRM
the district court’s grant of summary judgment to k. Amalia, Barr, Tran, and Luu. Because MMO’s
motion for reconsideration did not raise any issues that affect our analysis, we also AFFIRM the
district court’s denial of MMO’s motion for reconsideration.