Theresa Fortier v. Hartford Life and Accident Insurance Company

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).

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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).

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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

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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

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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").

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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]."

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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

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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.

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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.

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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

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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.

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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

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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.

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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."

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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.

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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).

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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

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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

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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.

For the stated reasons, the decision of the district

court is affirmed. Costs are awarded to Hartford.