Vivian Dietz-Clark v. Hdr. Inc.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VIVIAN DIETZ-CLARK, No. 15-35889

Plaintiff-Appellant, D.C. No. 3:15-cv-00035-JWS

v.
MEMORANDUM*
HDR, INC.; HDR LTD INC. PLAN;
UNITED OF OMAHA LIFE
INSURANCE CO.,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding

Argued and Submitted August 15, 2017
Anchorage, Alaska

Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.

Vivian Dietz-Clark appeals the district court’s order dismissing her civil

enforcement action under section 502 of ERISA, 29 U.S.C. § 1132, for failure to

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
exhaust administrative remedies. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

The district court properly declined to apply Alaska’s notice-prejudice rule

to the administrative appeals deadline here. First, because Alaska’s notice-

prejudice rule is not limited to state insurance law, see Long v. Holland Am. Line

Westours, Inc., 26 P.3d 430, 435-36 (Alaska 2001) (applying rule to contractual

limitations restricting personal injury claims resulting from certain tour-related

accidents), the rule does not meet the ERISA definition of state regulation of

insurance necessary to avoid ERISA preemption, 29 U.S.C. § 1144(b)(2)(A).

ERISA preemption therefore applies. See UNUM Life Ins. Co. of Am. v. Ward, 526

U.S. 358, 368 (1999) (holding that California’s notice-prejudice rule is not subject

to ERISA preemption because the rule “is directed specifically at the insurance

industry and is applicable only to insurance contracts” (citation and internal

quotation marks omitted)).

Second, even assuming that Alaska’s notice-prejudice rule is not subject to

ERISA preemption, such a rule typically applies only to initial denial of benefits.

There is no case applying Alaska law that has extended the rule to administrative

appeal deadlines like the one here.

AFFIRMED.

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