Jo Ann Johnson v. State Mutual Life Assurance Co. Of America

BEAM, Circuit Judge, dissenting,

with whom FAGG, Circuit Judge, joins.

Because I disagree that this action for ERISA benefits should be governed by either of Missouri’s contract statutes of limitation, I respectfully dissent. I would hold instead that the Missouri statute of limitation most analogous to an action brought by a plan participant or beneficiary seeking ERISA benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) (1988) is the Missouri statute limiting suits against trustees. See Mo.Ann.Stat. § 456.220 (Vernon Supp. 1991).

The Supreme Court has already considered the problem with which we now struggle in a different context. Prior to Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), the lower courts, in borrowing state statutes of limitation for actions brought under 42 U.S.C. § 1983 (1988), focused on the nature of the particular claim at issue, a practice which “bred confusion and inconsistency in the lower courts and generated time-consuming litigation.” Owens v. Okure, 488 U.S. 235, 240, 109 S.Ct. 573, 576, 102 L.Ed.2d 594 (1988). In Wilson, the Court sought to remedy the resulting “conflict, confusion, and uncertainty concerning the appropriate statute of limitations.” Wilson, 471 U.S. at 266, 105 S.Ct. at 1941. For purposes of determining the most analogous state statute of limitation, the Court rejected an approach which would “depend upon the particular facts or the precise legal theory of each claim,” and under which “different statutes of limitations would be applied to the various § 1983 claims arising in the same State, and multiple periods of limitations would often apply to the same case.” Id. at 274, 105 S.Ct. at 1946. Accordingly, the Court held that “[section] 1983 claims are best characterized as personal injury actions.” Id. at 280, 105 S.Ct. at 1949. Due to the array of state statutes of limitation governing particular personal-injury actions, however, the Court was forced to revisit the problem in Owens. The Court refined the approach adopted in Wilson by holding that “where a State has one or more statutes of limitations for certain enumerated intentional torts, and a residual statute for all other personal injury actions,” the residual or general personal injury statute applies. Owens, 488 U.S. at 236, 109 S.Ct. at 574.

I think that choosing the most analogous state statute of limitation for an ERISA cause of action seeking benefits by focusing on the particular benefit at issue can only produce, as this case shows, the same sort of “confusion and inconsistency” and “time-consuming litigation” that the Supreme Court sought to avoid in section 1983 cases. That is, not all conceivable actions brought pursuant to 29 U.S.C. § 1132(a)(1)(B) by a plan participant seeking benefits will involve claims for insurance benefits or even be claims based on a written promise to pay money or property within the meaning of Mo.Rev.Stat. § 516.-110. Indeed, ERISA defines a plan participant as anyone “who is or may become eligible to receive a benefit of any type from an employee benefit plan.” 29 U.S.C.A. § 1002(7) (West Supp.1991) (emphasis added). Under the majority’s approach, to determine which of Missouri’s two contract statutes of limitation applies we will have to consider, again and again, the particular nature of the benefit being sought rather than the general nature of the federal action for recovering ERISA benefits, whatever their nature.

For purposes of borrowing a state statute of limitation for a federal claim, the characterization of the federal cause of action “ ‘is ultimately a question of federal law.’ ” Wilson, 471 U.S. at 270, 105 S.Ct. at 1943 (quoting UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 706, 86 S.Ct. 1107, 1113, 16 L.Ed.2d 192 (1966)). This general *1269principle highlights the essence of our inquiry— we should consider a claim for benefits brought under 29 U.S.C. § 1132(a)(1)(B) not as a state action challenging an employer’s denial of benefits, and, accordingly, one governed by principles of contract law, but rather as a federal action governed by the principles of ERISA. Cf Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 112, 109 S.Ct. 948, 955, 103 L.Ed.2d 80 (1989). In Firestone, the Court held that, because “ERISA abounds with the language and terminology of trust law,” the guiding principles for determining the appropriate standard of review for actions seeking ERISA benefits are those provided by trust law. Id. at 110, 111, 109 S.Ct. at 954, 954. I see no reason why our characterization of the same federal statute considered in Firestone should be fundamentally different merely because we seek to determine a statute of limitation rather than a standard of review.

This action was removed from state court because it was, apparently without dispute among the parties, an ERISA claim by a beneficiary of an employee benefit plan. ERISA, 29 U.S.C. § 1102(a)(1), requires a plan to be in writing, which writing must provide for one or more fiduciaries to control and manage the plan. ERISA, 29 U.S.C. § 1103(a), further provides that all plan assets must be held in trust by one or more trustees. An exception provided in section 1103(a) stipulates that an asset consisting of insurance benefits, as here, may be administered directly by an insurance carrier qualified to do business in a state.

The trustee requirement under section 1103(a) is designed, at least in part, to protect the plan assets from mismanagement and dissipation by the employer. Presumably, state regulation of a qualified insurance carrier, including requirements for prudent investment and adequate reserves, was thought by Congress to be protection akin to that provided by appointment of a trustee for other assets.

Under the statutory scheme, an action for benefits, other than insurance benefits, would be brought against the section 1103(a) trustee. Such action would be one for alleged breach of the trust agreement, whether or not there were allegations of breach of a fiduciary duty by the trustee. Many, if not most, of these breach of trust claims will be, as here, in the nature of declaratory relief and not necessarily claims of violation of duties of fidelity, trust and honor owed by the trustee, as a fiduciary, to the beneficiary. Putting aside the question of what statute of limitation applies to breach of fiduciary duty claims, actions seeking benefits allegedly due, for whatever other reason, will normally be brought against the section 1103(a) trustee. Under the majority’s approach, determining what statute of limitation applies to these claims will depend on the benefit sought. That is, the majority does not answer the question of what statute of limitation applies to an action against a section 1103(a) trustee seeking some benefit other than payment of money or property.

In my view, it is anomalous to carve out a separate category, for statute of limitations purposes, for an ERISA claim for the payment of money or property. When plan money is used to purchase insurance from a qualified carrier, the premium money is paid to the carrier to hold, invest and pay out under the terms of the policy, which policy is, in turn, an asset of the employee benefit plan. For ERISA plan purposes, the carrier is a fiduciary, Eversole v. Metropolitan Life Ins. Co., 500 F.Supp. 1162, 1165 (C.D.Cal.1980), 29 C.F.R. § 2560.503-1(g)(2) (1989), and, at least, a quasi trustee of plan assets. Such separate treatment based on the nature of the benefit is contrary to the policy announced in Garcia with regard to section 1983 actions and in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) with regard to unfair labor practices under the National Labor Relations Act, 29 U.S.C. § 160(b). (The Court stressed desirability of a uniform national limitation period in breach of duty cases.) This policy is equally applicable in the ERISA framework where a wide variety of benefits including payments of money or property, education and training, child *1270care services, medical services and insurance proceeds, to name a few, may all be benefits provided by the same plan. Clearly Mo.Rev.Stat. § 516.110 would not be applicable to claims involving a number of the benefits available in many employee plans.

Thus, I would hold that the most analogous state statute of limitation, if we choose to apply state law,1 is not one governing claims for breach of contract, but one governing suits against trustees. In Missouri, section 456.220 provides that “any cause of action against a trustee for breach of trust shall be barred as to any beneficiary ... unless a proceeding to assert the cause of action is commenced within five years after receipt of the final account or statement by him.” Mo.Ann.Stat. § 456.220. In this case, Johnson received the equivalent of a final account or statement when State Mutual Life Assurance Company paid death benefits but refused to pay the $44,000 owing in the case of an accidental death. Because Johnson commenced her claim more than five years after she was denied benefits, I would find her action untimely, and, therefore, affirm the district court’s judgment dismissing her complaint.

. The Third Circuit has applied the federal limitations found in 29 U.S.C. § 1113 to claims for benefits by a plan beneficiary. Edwards v. Wilkes-Barre Publishing Co. Pension Trust, 757 F.2d 52, 54 (3d Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 130, 88 L.Ed.2d 107 (1985); Adams v. Gould, Inc., 739 F.2d 858, 867 (3d Cir.1984), cert. denied, 469 U.S. 1122, 105 S.Ct. 806, 83 L.Ed.2d 799 (1985). At least one federal trial court also applies the federal three-year statute found in section 1113. Sparks v. Ryerson & Haynes, Inc., 638 F.Supp. 56, 61 (E.D.Mich.1986).