Date: 02-20-2019

Case Style:

Case Number: 18-1752

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of New Hamphire

Plaintiff's Attorney:

Call 918-582-6422 if you need help finding a plaintiff personal injury bad faith insurance lawyer in Concord, New Hampshire.

Defendant's Attorney: Byrne J. Decker and SCott K. Pomeroy

Description: A disability insurer, Hartford
Life and Accident Insurance Company ("Hartford"), gave notice to
Theresa Fortier that the long-term disability ("LTD") benefits it
had provided her under the Dartmouth Hitchcock Clinic Company Long
Term Disability Plan (the "Plan") would expire because she had not
shown she was eligible for a continuation of those benefits. The
notice informed her she must file any appeal within 180 days of
receipt of the notice. She did not do so, filing her appeal about
two months after this deadline.
In this Employee Retirement Income Security Act of 1974
("ERISA") suit, Fortier first argues that her appeal was timely
under the Plan. She then argues that even if untimely, that
untimeliness should be excused under either of two doctrines: the
ERISA substantial compliance doctrine or a state law noticeprejudice rule. The district court rejected these arguments and
granted a motion for judgment on the administrative record for
Hartford and the Plan. Fortier v. Hartford Life & Accident Ins.
Co., No. 16-CV-322-LM, 2018 WL 3542863, at *12 (D.N.H. July 23,
2018). We also reject all these arguments and affirm. In
rejecting the equitable arguments, our result is similar to that
reached by the Seventh Circuit in Edwards v. Briggs & Stratton
Ret. Plan, 639 F.3d 355 (7th Cir. 2011).
- 3 -
I.
We describe the material undisputed facts. Because this
court is not reviewing the merits of Hartford's 2013 "adverse
benefit determination"1 on Fortier's claim, facts concerning
Fortier's medical condition(s) and medical treatment are described
only where relevant.
A. Illness and Initial LTD Claim
In January 2008, Fortier was employed as a doctor by the
Dartmouth-Hitchcock Clinic, and so became a beneficiary and
participant in an LTD benefits plan (the Plan), offered through
Hartford. The Plan provided for LTD benefits if a participant
became disabled. There is no dispute that Fortier became disabled
in May 2009.
The Plan had limitations on the duration of LTD benefits,
as relevant here, depending on the cause of the disability. One
such duration limit was a twenty-four month limitation for
1 Under ERISA regulations, an "adverse benefit
determination" is defined, in part, as:
Any of the following: A denial, reduction, or
termination of, or a failure to provide or
make payment (in whole or in part) for, a
benefit, including any such denial, reduction,
termination, or failure to provide or make
payment that is based on a determination of a
participant's or beneficiary's eligibility to
participate in a plan . . . .
29 C.F.R. § 2560.503–1(m)(4)(i).
- 4 -
disability caused by "Mental Illness and Substance Abuse Benefits"
(the "Mental Illness Limitation"). The Mental Illness Limitation
stated, in part:
If You are Disabled because of:
1) Mental Illness that results from any
cause;
2) any condition that may result from
Mental Illness . . .
[b]enefits will be payable:
1) for as long as you are confined in
a hospital or other place licensed
to provide medical care for the
disabling condition; or
2) if not confined, or after you are
discharged and still Disabled, for
a total of 24 month(s) for all such
disabilities during your lifetime.
The Plan defined "Mental Illness" as "a mental disorder as listed
in the current version of the Diagnostic and Statistical Manual of
Mental Disorders, published by the American Psychiatric
Association. A Mental Illness may be caused by biological factors
or result in physical symptoms or manifestations."
Under the Plan, "Mental Illness does not include the
following mental disorders outlined in the Diagnostic and
Statistical Manual of Mental Disorders: . . . Delirium, Dementia,
and Amnesic and Other Cognitive Disorders" (emphasis added). It
has been Fortier's position that she suffers from a "Cognitive
Disorder" such that the limitation period does not apply. To be
clear, Fortier was eligible for and received benefits for at least
- 5 -
twenty-four months regardless of whether the cause of her
disability was a "Mental Illness" or a "Cognitive Disorder."
In November 2009, Fortier filed a disability claim with
Hartford under the Plan, stating that she could not work because
of a disability as of May 6, 2009.2 In a "Claimant Interview" with
Hartford, Fortier, according to Hartford's contemporaneous notes,
explained that she had "got[ten] sick with some form of infection"
and subsequently had "significant problems with memory." Fortier
maintained this was corroborated by "neurophysch[ological]
eval[uation]."
As part of Hartford's review of Fortier's claim,
Hartford obtained medical records from several doctors who had
treated Fortier. Her psychiatrist, Dr. Paul Belliveau, stated in
June 2009 that Fortier's primary diagnoses were "Major Depressive
Disorder" and "Cognitive Disorder NOS [(Not Otherwise
Specified)]," from "resolving encephalopathy."3 Her neurologist
2 Fortier contracted a viral infection in April 2009 and
reported subsequent symptoms including issues with memory and
general "difficulty with various aspects of . . . cognitive
function." On May 6, 2009, Fortier stopped working due to her
medical condition(s).
3 Fortier has referred to this condition as one caused by
"encephalitis," meaning inflammation of the brain generally caused
by an infection (often viral). Merriam Webster Medical Dictionary,
http://www.merriam-webster.com/medical (definition of
"encephalitis"). Dr. Belliveau, however, stated that the cause
was "encephalopathy," which is a broader term meaning a "disease
- 6 -
at the time, Dr. Evan Murray, found that the results of
electroencephalogram (EEG) and brain magnetic resonance imaging
(MRI) tests were normal and stated that "[i]t is probable that the
majority of Dr. Fortier's current cognitive difficulties are due
to a mood disorder." In Dr. Murray's view, then, "both the EEG
and brain MRI did not reveal evidence to support such an etiology
[of encephalopathy]."
After reviewing medical records and having the "Claimant
Interview" with Fortier, Hartford notified Fortier in a letter
dated December 18, 2009, that it had approved her disability claim
and would start paying the appropriate benefits effective November
2, 2009. This letter stated that "[o]n a periodic basis we will
be providing you with supplemental claim forms for the purpose of
furnishing us with continued proof of disability." When Fortier's
claim was granted, a Manager at Hartford stated in Hartford's
internal notes that "further clarification should be requested to
determine whether Dr. Fortier's primary disabling diagnosis is due
to a physical or [a] mental/nervous condition." Hartford had
previously "coded" Fortier's disability claim as a physical
diagnosis.

of the brain[,] especially: one involving alterations of brain
structure." Id. (definition of "encephalopathy").
- 7 -
B. 2011 Adverse Benefit Determination and 2012 Appeal
In 2010 and 2011, Hartford periodically requested
updated medical information from Fortier. In response, Dr.
Belliveau stated in January 2011, on an "Attending Physician's
Statement" form, that Fortier's "[c]ognitive dysfunction appears
to be grad[ually] improving" and the "[p]rimary concern now is
increasing depression." In February 2010, an Examiner at Hartford
spoke with Fortier on the phone and, according to Hartford's notes,
Fortier declined to undergo further testing, saying that further
neuropsychological tests would not make sense. Later, Hartford
requested updated medical records from Dr. Belliveau on April 8,
2011, which he provided promptly. Dr. Belliveau's notes indicated
that Fortier was "reluctant to retake the neuropsychology testing"
in July 2010. After further requests for information and
communication with Fortier, an Examiner at Hartford referred the
case for a medical review "for clarification of [Fortier's]
disabling condition" in June 2011. In July 2011, a nurse employed
by Hartford determined that Fortier's disabling condition was a
mental illness rather than a cognitive disorder or other physical
ailment. In August 2011, Hartford continued to write to Fortier's
treating physicians for further information. On September 13,
2011, Hartford determined, in its view, that an "in-depth . . .
review" had "found no support for a physical [disabling
condition]."
- 8 -
In a letter dated September 13, 2011, Hartford notified
Fortier that her benefits would terminate on November 1, 2011,
because the Plan's Mental Illness Limitation applied to her
disability. Hartford's letter stated that "[i]f you do not agree
with our denial, in whole or in part, and you wish to appeal our
decision, you or your authorized representative must write to us
within one hundred eighty (180) days from your receipt of this
letter." About 174 days after receipt of this letter, Fortier's
attorney requested a sixty-day extension to appeal the adverse
benefit determination. Hartford granted this request, and the
time to file an appeal was extended to May 11, 2012. Fortier,
through her attorney, appealed. That appeal resulted in an
extension of LTD benefits.
In a letter to Fortier's attorney dated May 22, 2012,
Hartford stated that "we have determined that Dr. Fortier is
entitled to continued LTD benefits beyond November 1, 2011, subject
to all policy provisions and guidelines," but did not specify the
reason. This deficiency was cured within two weeks. In a June 4,
2012, follow-up letter to Fortier's attorney, Hartford provided a
reason for not cutting off and for continuing her LTD benefits:
"As Dr. Fortier was not notified until the letter dated 09/13/2011
of the limitation for Mental Illness Benefits she is subject to
the limitation beginning 09/13/2011." That is, Hartford restarted
the twenty-four month period (for benefits paid due to a disability
- 9 -
falling under the Mental Illness Limitation) anew from September
13, 2011, because of the lack of prior notice to Fortier regarding
the Mental Illness Limitation. The letter explicitly stated that
"no benefits will be payable beyond 09/12/2013," except that
benefits would be payable if, and for as long as, "[Fortier is]
confined in a hospital or other place licensed to provided medical
care for the disabling condition." This letter also sought further
information from Fortier and Fortier's treating physicians.
After the June 4, 2012, letter, Hartford repeatedly
requested more information about Fortier's disabling condition
from Fortier, Fortier's attorney, and Fortier's healthcare
providers4 throughout the rest of 2012 and the first seven months
of 2013. A June 6, 2012, letter to Fortier's attorney requested
"more information to evaluate [Fortier's] claim," including an
"Attending Physician's Statement of Continued Disability" from
each of Fortier's treating physicians. This letter requested this
information by July 9, 2012, but the record does not show that
Hartford received any such information by this date. A July 13,
2012, letter referred to the June 6 letter and made the same
request for "more information to evaluate [Fortier's] claim," this
time by August 5, 2012. Hartford received an updated Attending
4 All of the letters sent directly to healthcare providers
attached a proper authorization form, signed by Fortier, for the
release of medical records and personal information.
- 10 -
Physician's Statement from Dr. Belliveau, dated August 16, 2012,
but the record does not show the receipt of an Attending
Physician's Statement from any other treating physician. An August
7, 2012, letter from Hartford requested assistance from Fortier's
attorney in obtaining records from two particular hospitals where
Fortier had received medical care. Nothing in the record suggests
that Hartford received the requested information from the two
hospitals from Fortier's attorney.
A February 15, 2013, Hartford letter to Fortier's
attorney similarly requested assistance in obtaining information
from a medical provider, including updated Attending Physician's
Statements. Dr. Belliveau returned an Attending Physician's
Statement form that stated "See attached" and was otherwise nearly
blank. The attached documents were Dr. Belliveau's office notes
regarding Fortier for May 2011 through November 2012. There were
no records pertaining to January and February 2013. A February
18, 2013, letter to Dr. Belliveau requested a completed Attending
Physician's Statement as well as "any other information you feel
is pertinent to the processing of [Fortier's] claim." A March 29,
2013, letter to Fortier's attorney sought assistance in obtaining
a completed form from Dr. Belliveau, rather than office notes and
the "incomplete" form. There is no evidence that this information
was then provided.
- 11 -
Hartford sent a May 10, 2013, letter to Fortier's
attorney, which stated that the letter was a "final request for
the information [an Attending Physician's Statement] we need to
fully evaluate Dr. Fortier's claim for LTD benefits" (emphasis
added). It referred to several prior letters requesting
information. According to Hartford's internal records, on July 8,
2013, Dr. Belliveau sent a copy of the same incomplete form that
he had previously sent in February 2013.
Even after this "final request," Hartford sent several
letters in July 2013 -- one directly to Fortier, two to Fortier's
healthcare providers -- seeking additional records or other
pertinent information.
C. 2013 Adverse Benefit Determination
In a letter to Fortier's attorney dated July 17, 2013,
and apparently sent on July 23, 2013, (the "July 17/23 letter")
Hartford stated that it had "completed [its] review of [Fortier's]
claim for benefits" and it would stop paying LTD benefits to
Fortier on September 13, 2013, because it had determined on the
record that the Mental Illness Limitation applied to Fortier. The
letter stated: "If you do not agree with our denial, in whole or
in part, and you wish to appeal our decision, you or your
authorized representative must write to us within one hundred
eighty (180) days from the receipt of this letter" and briefly
- 12 -
explained the appeals procedure (such as the address to which
documentation should be sent).
A few weeks after this letter, on August 10, 2013,
Fortier's attorney wrote to Hartford. He acknowledged notice of
an adverse benefit determination and stated he had reviewed the
"adverse-benefit-decision-letter"; he requested Fortier's claim
file, among other things. Hartford complied with this request on
August 19, 2013. Between August 2013 and March 2014, nothing in
the record indicates that Fortier's attorney retracted his
statement that Hartford had made an adverse benefit determination.
D. March 2014 Appeal Letter
Fortier did not appeal within 180 days of receipt of the
notice (the July 17/23 letter). Fortier, through her attorney,
sent a letter dated March 7, 2014, purporting to appeal. This was
about two months later than 180 days from the receipt of the July
17/23 letter. Hartford responded in a letter dated March 26, 2014,
stating that it would not consider Fortier's appeal because it was
untimely.5
5 That same day, the Harford Appeal Specialist who signed
the March 26 letter spoke with Fortier's attorney on the phone.
Hartford's call notes from this call state that Fortier's attorney
"disagree[d] with the decision because the claimant's last payment
was in September," but do not show that he offered any other excuse
for filing later than 180 days after receiving the July 17/23
letter.
- 13 -
E. Federal Lawsuit
About two years after Fortier's attempted administrative
appeal in March 2014, she filed a two-count complaint in federal
district court under ERISA Section 502(a), 29 U.S.C. § 1132(a) on
July 15, 2016. Count One sought reinstatement of LTD benefits,
which had been terminated in accordance with the July 17/23 letter.
Count Two sought attorneys' fees and costs under 29 U.S.C.
§ 1132(g)(1). On December 14, 2016, Fortier filed an amended
complaint, adding a count challenging the legality of the Mental
Illness Limitation under the Americans with Disabilities Act
("ADA").
On January 27, 2017, Hartford moved to dismiss (styled
as a partial motion to dismiss), arguing that Fortier had not
exhausted her administrative remedies and had not set forth a claim
under the ADA; Fortier opposed this motion. On September 11, 2017,
the District Court dismissed the ADA claim but not Count One
regarding the denial of LTD benefits. The parties each then filed
motions for judgment on the administrative record.
The district court issued a Memorandum and Opinion and
entered judgment in Hartford's favor. Fortier, 2018 WL 3542863.
The district court held that Fortier had not timely appealed, and
so had not exhausted her administrative remedies. Id. at *11.
The district court rejected Fortier's equitable arguments that her
appeal was timely under either the substantial compliance doctrine
- 14 -
or New Hampshire's notice-prejudice rule. Id. at *8-*11. Fortier
appealed from the judgment. Her appeal does not contest the
dismissal of the ADA claim.
II.
We review the district court's grant of judgment on the
administrative record de novo. Glista v. Unum Life Ins. Co. of
Am., 378 F.3d 113, 125 (1st Cir. 2004). We need not consider the
appropriate standard of review for "reviewing determinations made
regarding benefits claims," Rodríguez–López v. Triple-S Vida,
Inc., 850 F.3d 14, 20 (1st Cir. 2017), because our review examines
whether Fortier exhausted her administrative remedies and not the
merits of Hartford's adverse benefit determination.
In order to bring suit under a benefits plan subject to
ERISA, a beneficiary must exhaust the plan's administrative
remedies. Tetreault v. Reliance Standard Life Ins. Co., 769 F.3d
49, 51-52 (1st Cir. 2014); see Heimeshoff v. Hartford Life &
Accident Ins. Co., 571 U.S. 99, 105 (2013) (noting that "courts of
appeals have uniformly required that participants exhaust internal
review before bringing a claim [under ERISA] for judicial review").
We first address Fortier's arguments about the proper
starting date for the 180-day time limit for appeals and about
Hartford's compliance with the Plan, before considering Fortier's
equitable arguments concerning the substantial compliance doctrine
and New Hampshire's common law notice-prejudice rule.
- 15 -
A. ERISA's Requirements and the 180-Day Time Limit
Fortier argues that an ERISA regulation defining an
"adverse benefit determination" requires that the 180-day time
limit start at the date of termination of benefits and not from
the date of notice. This argument fails.
Fortier's reading of ERISA regulations is plainly wrong.
The relevant ERISA regulation does not define an "adverse benefit
determination" as a "contemporary cessation of benefits," as
Fortier contends.6 The ERISA regulation concerning notice of an
adverse benefit determination states in part that a complying group
health plan7 must "[p]rovide claimants at least 180 days following
receipt of a notification of an adverse benefit determination
within which to appeal the determination." 29 C.F.R. § 2560.503-
1(h)(3)(i) (emphasis added). Notice is the key event. The ERISA
6 In relevant part, the regulation states that "[t]he term
'adverse benefit determination' means: (i) Any of the following:
a denial, reduction, or termination of, or a failure to provide or
make payment (in whole or in part) for, a benefit." 29 C.F.R.
§ 2560.503–1(m)(4)(i). Denial of benefits, termination of
benefits, and reduction of benefits are listed separately by this
definition, and so it would not make sense for the term "denial"
to mean only the "termination" of benefits.
7 The parties agree that the Plan was a group health plan.
Under ERISA, "[t]he term 'group health plan' means an employee
welfare benefit plan providing medical care . . . to participants
or beneficiaries directly or through insurance, reimbursement, or
otherwise." 29 U.S.C. § 1167(1).
- 16 -
regulations do not require that the time limit for an
administrative appeal run from the date of termination of benefits.
B. Hartford's Conduct
Fortier also argues that: Hartford's letters from June
4, 2012, and July 17/23, 2013, were inconsistent; and a portion of
Hartford's "Product Manual" (in essence, internal guidelines)
shows that Hartford breached its own internal guidelines.8 We
assume for the sake of argument that Hartford's conduct is relevant
here.
These arguments fail, as Hartford's conduct was
consistent with ERISA and relevant regulations. The Plan (which
is the governing document) plainly laid out the 180-day notice
rule. Specifically, the Plan's Certificate of Insurance, which
was expressly incorporated as part of the Plan terms, included --
under the heading "Claim Denial: What recourse do I have if my
claim is denied?" -- a clear statement that a claimant "must
request a review upon written application within . . . 180 days of
receipt of claim denial." The Certificate of Insurance also
8 Fortier makes a passing reference in the "Statement of
the Relevant Facts" section of her brief to language in the
Certificate of Insurance requiring that, "On any wholly or
partially denied claim, you or your representative must appeal
once to [Hartford] for a full and fair review." However, Fortier's
point is not clear; if the implicit argument is that the latter
appeal filed in March 2014 was unnecessary to exhaust Fortier's
administrative remedies because she had already appealed in 2012
on the same claim, it is waived for lack of development. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 17 -
stated, under the heading "Appealing Denials of Claims for
Benefits," that:
On any wholly or partially denied claim, you
or your representative must appeal once to
[Hartford] for a full and fair review. You
must complete this claim appeal process before
you file an action in court. Your appeal
request must be in writing and be received by
[Hartford] no later than the expiration of 180
days from the date you received your claim
denial.
This document refutes Fortier's argument. Further, the 180-day
time limit complies with the relevant ERISA regulation. See 29
C.F.R. § 2560.503-1(h)(3)(i).
The July 17/23 letter from Hartford to Fortier's
attorney clearly stated, "If you do not agree with our denial, in
whole or in part, and you wish to appeal our decision, you or your
authorized representative must write to us within one hundred
eighty (180) days from the receipt of this letter." Fortier
acknowledges that this letter gave notice of her appeal rights.
Fortier contrasts the June 4, 2012, and the July 17/23,
2013, letters from Hartford, arguing that "[o]ne cannot be an
'adverse benefit determination' and not the other." This argument
is simply wrong and mischaracterizes the letters. The June 4,
2012, letter gave reasons for the extension of benefits discussed
in the May 22, 2012, letter, but also warned of the new termination
date of those benefits. The July 17/23 letter, sent more than a
year later, announced the final adverse benefit determination and
- 18 -
gave notice of the right to appeal within 180 days of receipt of
the letter.
Fortier also argues that a page from Hartford's Product
Manual demonstrates that "Hartford believes a letter should be
sent advising of presuit appeals rights when the claim is paid and
closed, not two months before." The language Fortier focuses on
is a portion of an instruction to Hartford employees that "appeal
language should again be utilized once the limited benefit duration
has been paid and the claim terminated." This page is not relevant
here, and likely not admissible.9
9 This page from the Product Manual is not part of the
administrative record in this case and was obtained by Fortier's
attorney through discovery in a different and unrelated case in
2009 (which he acknowledges). "[S]ome very good reason is needed
to overcome the presumption that the record on review is limited
to the record before the administrator." Morales-Alejandro v.
Med. Card Sys., Inc., 486 F.3d 693, 698 (1st Cir. 2007) (quoting
Liston v. Unum Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st
Cir. 2003)).
In Glista, this court allowed the consideration of two
internal insurance company documents; such internal documents "are
most likely to be relevant where they have been authenticated,
have been generated or adopted by the plan administrator, concern
the policy in question, are timely to the issue in the case, are
consistently used, and were known or should have been known by
those who made the decision." 378 F.3d at 123.
Here, we do not know whether the Product Manual reflects
Hartford's understanding of the Plan or its appeals procedures.
Further, there is no evidence in the record showing that Hartford
used this Product Manual, or that it was or should have been known
to the relevant Hartford employees. Taken together, these facts
make the Product Manual irrelevant here.
- 19 -
In summary, Hartford properly followed the terms of the
Plan, which met the ERISA requirements. Hartford's July 17/23
letter was an adverse benefit determination and provided notice of
the right to appeal. The 180-day time limit began at the receipt
of this letter, and so Fortier's attempted appeal in March 2014
was untimely. In the ERISA context, "[h]aphazard waiver of time
limits would increase the probability of inconsistent results."
Terry v. Bayer Corp., 145 F.3d 28, 40 (1st Cir. 1998).
C. Inapplicability of the Doctrine of Substantial Compliance
The judicially-created doctrine of "substantial
compliance," an ERISA doctrine, has been applied to excuse an
insurer's failure to comply precisely with ERISA's notice
requirements, so long as the insured person was "supplied with a
statement of reasons that, under the circumstances of the case,
permitted a sufficiently clear understanding of the
administrator's position to permit effective review." Niebauer v.
Crane & Co., 783 F.3d 914, 927 (1st Cir. 2015) (quoting Terry, 145
F.3d at 39); see Santana-Díaz v. Metro. Life Ins. Co., 816 F.3d
172, 178 (1st Cir. 2016).10 In fact, the doctrine assists with the
10 Some other circuits have applied a broader version of
the doctrine to other situations under ERISA, such as an insurer's
substantial compliance with a change of beneficiary. See, e.g.,
Davis v. Combes, 294 F.3d 931, 941-42 (7th Cir. 2002) (change of
beneficiary); but see Hall v. Metro. Life Ins. Co., 750 F.3d 995,
1000-01 (8th Cir. 2014) (in a different context, rejecting the
doctrine in a change of beneficiary situation). But no circuit
has applied the doctrine to excuse a late administrative appeal by
- 20 -
prompt review of denial of benefits, and Fortier is arguing for
delay, not prompt review.
Fortier makes a fairness argument: since Hartford has at
least once had the doctrine applied in its favor, Fortier should
receive the benefit of the doctrine. See, e.g., Topalian v.
Hartford Life Ins. Co., 945 F. Supp. 2d 294, 339 (E.D.N.Y. 2013)
(finding that "Hartford was in substantial compliance with the
[Department of Labor]'s regulatory deadlines" despite Hartford
making a late benefit determination). Neither the caselaw nor 29
C.F.R. § 2560.503-1(b)(5)11 supports Fortier's argument.12
We agree generally with Edwards, where the Seventh
Circuit held that the substantial compliance doctrine did not apply

a claimant, which is what Fortier asks that we do, and some have
rejected the argument. See, e.g., Edwards, 639 F.3d at 362-63.
11 This regulation addresses the "[o]bligation to establish
and maintain reasonable claims procedures."
12 We do not specifically address all of Fortier's broad
statements concerning duties of loyalty, good faith, and fair
dealing. These assertions rest on the assumption that a "desire
to save money had to be the overriding force in Hartford's biased
claim adjudication" and the related assumption that "Hartford's
improper motive caused it to ultimately refuse to review Dr.
Fortier's . . . appeal."
These assumptions are not adequately supported in
Fortier's briefs, nor in the record. Fortier does not point to
anything in the record that clearly suggests, let alone proves,
such an improper motive. Her primary support for such a motive is
the relative speed (about two weeks) in which Hartford granted
Fortier's May 2012 appeal, but this does not itself demonstrate a
"biased claim adjudication."
- 21 -
to a claimant's late appeal from a denial of benefits. The Seventh
Circuit reasoned that:
[I]t seems consistent neither with the
policies underlying the requirement of
exhaustion of administrative remedies in ERISA
cases nor with judicial economy to import into
the exhaustion requirement the substantial
compliance doctrine. To so hold would render
it effectively impossible for plan
administrators to fix and enforce
administrative deadlines while involving
courts incessantly in detailed, case-by-case
determinations as to whether a given
claimant's failure to bring a timely appeal
from a denial of benefits should be excused or
not.
Edwards, 639 F.3d at 362.13 As in Edwards, see id. at 359, the
Plan here contained a clear deadline for appeals of adverse benefit
determinations. In coming to its conclusion, the Seventh Circuit
determined that, though the plan administrator had discretion to
consider an untimely appeal, the claimant "ha[d] never offered an
explanation for the untimeliness of her appeal that would warrant
such an exercise of discretion in her favor [by the plan
administrator]." Id. at 362. The same is true here. We find
convincing the concerns about the harms that would result from
applying the substantial compliance doctrine to excuse a
claimant's failure to meet the exhaustion requirement.14
13 We acknowledge that there may well be ERISA cases where
certain exceptions and doctrines can dictate a different outcome.
14 Fortier has not made an equitable tolling argument.
- 22 -
Further, the Supreme Court has discussed ERISA's
"'careful balancing' between ensuring fair and prompt enforcement
of rights under a plan and the encouragement of the creation of
such plans." Aetna Health Inc. v. Davila, 542 U.S. 200, 215 (2004)
(quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 54 (1987));
see also Heimeshoff, 571 U.S. at 108 (noting that a "focus on the
written terms of the plan is the linchpin of" the ERISA system).
Adoption of Fortier's argument would risk upsetting this balance
and reducing the incentive for employers to set up benefit plans.
Next, Fortier's reliance on 29 C.F.R. § 2560.503-1(b)(5)
is fundamentally misconceived. Nothing in the regulation would be
"undermined by Hartford when it applies deadlines strictly against
plan participants." In fact, "ERISA's exhaustion requirement
serves different purposes than the denial of claims process,"
Fortier, 2018 WL 3542863, at *10, and so all aspects of such
processes need not be the same.
The substantial compliance doctrine does not excuse
Fortier's untimely ERISA administrative appeal.15
15 Fortier makes no argument that we should excuse her
failure to exhaust the available administrative remedies. See,
e.g., Medina v. Metro. Life Ins. Co., 588 F.3d 41, 47 (1st Cir.
2009); Madera v. Marsh USA, Inc., 426 F.3d 56, 62-63 (1st Cir.
2005); Turner v. Fallono Cmty. Health Plan, Inc., 127 F.3d 196,
200 (1st Cir. 1997); Drinkwater v. Metro. Life Ins. Co., 846 F.2d
821, 826 (1st Cir. 1988).
- 23 -
D. Inapplicability of New Hampshire's Notice-Prejudice Rule
Fortier argues next that New Hampshire's common law
notice-prejudice rule (where an insurer must show prejudice in
order to deny certain limited types of untimely insurance claims)
should apply to her situation. Our own case law leads us to reject
the argument, as do decisions of our sister circuits. See Edwards,
639 F.3d at 363; Chang v. Liberty Life Assurance Co., 247 F. App'x
875, 878 (9th Cir. 2007).
This court, discussing ERISA appeals procedures and the
exhaustion requirement, has stated that:
Congress' apparent intent in mandating these
internal claims procedures was to minimize the
number of frivolous ERISA lawsuits; promote
the consistent treatment of benefit claims;
provide a nonadversarial dispute resolution
process; and decrease the cost and time of
claims settlement. It would be anomalous if
the same reasons which led Congress to require
plans to provide remedies for ERISA claimants
did not lead courts to see that those remedies
are regularly utilized.
Terry, 145 F.3d at 40 (quoting Makar v. Health Care Corp. of the
Mid-Atlantic (CareFirst), 872 F.2d 80, 83 (4th Cir. 1989)); accord
Schorsch v. Reliance Standard Life Ins. Co., 693 F.3d 734, 739
(7th Cir. 2012); Kennedy v. Empire Blue Cross & Blue Shield, 989
F.2d 588, 594 (2d Cir. 1993). This court stated further in Terry
that "[i]t would hardly make sense to permit the filing of [a late]
appeal . . . in light of the internal claims procedures' aims of
consistency and economy." Terry, 145 F.3d at 40. Adopting
- 24 -
Fortier's argument would reduce consistency in determinations and
national consistency. Further, "permitting appeals well after the
time for them has passed can only increase the cost and time of
the settlement process." Id. The exhaustion requirement -- and
several of its underlying policy goals -- would be undercut by an
extension of a state law notice-prejudice rule to ERISA appeals.
See Stacy v. Appalachian Regional Healthcare, Inc., 259 F. Supp.
3d 644, 654 (E.D. Ky. 2017).
The Seventh and Ninth Circuits have agreed that state
common law notice-prejudice rules do not apply to ERISA appeals.
See Edwards, 639 F.3d at 363; Chang, 247 F. App'x at 878. Indeed,
no federal court has applied any state's common law noticeprejudice rule to excuse a late administrative ERISA appeal.16
16 The District Court for the Eastern District of
Pennsylvania suggested in dictum that an untimely ERISA appeal
would have been subject to the notice-prejudice rule. Foley v.
Int'l Bhd. of Elec. Workers Local Union 98 Pension Fund, 91 F.
Supp. 2d 797, 803 n.6 (E.D. Pa. 2000) ("Even if [the plaintiff's]
appeal were untimely, defendants would not prevail, because they
have not shown that they were prejudiced by the untimely
submission, as they are required to do under the Supreme Court's
recent decision in UNUM.")
This footnote appears to rest on a misunderstanding of
UNUM Life Ins. Co. v. Ward, 526 U.S. 358 (1999), though, and is
not a holding. UNUM focused on California's relatively broad
notice-prejudice rule and on California's specific policy
interests underlying this rule; it still did not extend
California's notice-prejudice rule to an ERISA appeal. See id. at
372-73. Further, it made no express holding about other states'
notice-prejudice rules, see generally id., and simply noted that
"[d]ecisions of courts in [some] other States . . . indicate that
the notice-prejudice rule addresses policy concerns specific to
- 25 -
See, e.g., Chang, 247 F. App'x at 878 ("[T]o extend the noticeprejudice rule to ERISA appeals would extend the rule substantially
beyond its previous uses.").
We add that New Hampshire has never suggested that its
notice-prejudice rule applies to ERISA appeals, and note that the
state has only applied the doctrine where the facts involve an
initial claim made in an occurrence-based insurance policy.17 See,
e.g., Bianco Prof'l Ass'n v. Home Ins. Co., 740 A.2d 1051, 1057
(N.H. 1999). There is no reason to think that the New Hampshire
courts would countenance Fortier's attempted use of the noticeprejudice rule.
III.
For the stated reasons, the decision of the district
court is affirmed. Costs are awarded to Hartford.

insurance," id. at 372. Indeed, the court acknowledged "States'
varying insurance regulations." Id. at 376 n.6.
17 Fortier also cites a New Hampshire law in support of her
argument that an initial claim should be treated the same as an
appeal under New Hampshire's notice-prejudice rule. This law,
titled "Unfair Methods, Acts, and Practices Defined," bars
insurers from "[n]ot attempting in good faith to effectuate prompt,
fair and equitable settlements or compromises of claims in which
liability has become reasonably clear." N.H. Rev. Stat. Ann.
§ 417:4(XV)(a)(4). This provision is inapposite: Liability was
not reasonably clear, and the record does not demonstrate bad faith
on the part of Hartford.

Outcome: For the stated reasons, the decision of the district
court is affirmed. Costs are awarded to Hartford.

Plaintiff's Experts:

Defendant's Experts:

Comments: