a triable issue of timely notice, such cases are limited in their scope. The cases which have allowed for such an excuse are limited to situations where the insured injured a third-party and did not know that there would be a claim against it which would be covered by the insurer. In Clute, the insured party believed that the claim for damages by plaintiff was one of customer satisfaction. The insured party did not know that plaintiff would assert any claims other than for customer satisfaction. The insured knew that his insurer would not cover such claims. It was only after the plaintiff filed a complaint seeking recovery for damages did the insured know the exact nature of plaintiff's claims. In Merchants Mut. Ins. Co. v. Hoffman, 86 A.D.2d 779, 448 N.Y.S.2d 68 (1982), a similar situation arose. There, the insured's son caused injury to a foster child ("Farr") of the insured. Farr never brought a claim and his medical bills were paid by the Department of Social Services. Five years later, Farr, as an adult, commenced suit against the insured. The insurer claimed that they were not liable as notice of the occurrence was not promptly given. The court in Hoffman held that since the insured was unaware that Farr would bring a claim against them, the insured's delay in giving notice was reasonable.
Where courts have recognized that delay may be reasonable where the party is unaware of liability, these courts are quick to note that "countenancing delay on account of uncertainty concerning primary liability should be indulged sparingly by the court." Greyhound Corp. v. Gen. Acc. F. & L.A. Corp., 14 N.Y.2d 380, 251 N.Y.S.2d 958, 200 N.E.2d 625 (1964). In addition, where courts have allowed for uncertainty as a reasonable excuse for delay, these courts have often imposed a standard of a "good faith reasonable belief of nonliability." See Security Mut. Ins. Co. of New York v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 441, 340 N.Y.S.2d 902, 905-906, 293 N.E.2d 76, 78-79 (1988); Eveready Ins. Co. v. Levine, 145 A.D.2d 526, 528, 536 N.Y.S.2d 87, 88-89 (1988). Plaintiff testified under oath, in a deposition, that she had forwarded claim forms seeking accidental death benefits before the Workers' Compensation determination. Thus, her claim that she was unaware that she had a valid claim until after the Workers' Compensation determination seems disingenuous.
Absent some excuse or mitigating circumstance, the court, rather than a jury, is to decide the question whether prompt notice of claim has been given to insurer by insured. Plaintiff has failed to show a valid excuse or mitigating circumstances which would necessitate a jury trial. Thus, it is proper for the Court to determine whether timely notice was given to AIG. This Court concludes that Plaintiff failed to give timely notice to the insurer.
PMI as Agent
Plaintiff asserts that notice was timely given because notice was given to PMI, an agent of AIG. This Court, in its order dated May 10, 1993, held that Plaintiff had offered no evidence that PMI was the agent of AIG. This Court held the ruling in abeyance pending submission by Plaintiff of evidence that PMI acted as AIG's agent, such that notice of accidental death to PMI constituted either a notice of claim of proof of loss to AIG. Plaintiff does not offer any evidence which would show that PMI was AIG's agent for purposes of notice. This Court concludes that, Plaintiff has failed to offer any evidence that PMI was the agent of AIG.
Statute of Limitations
AIG contends that Plaintiff's commencement of the present action is untimely because the Plans state that "no. . .action [at law or in equity] shall be brought after the expiration of three years after the time written proof of loss is required to be furnished." (Third Party Def.'s Letter Br., Exhs. D & E (May 13, 1991)). Plaintiff cites to § 413(a) of ERISA and argues that the present action was begun within the limitations period provided by ERISA.
Plaintiff argues that § 413(a) of ERISA applies rather than the limitations provision in the Plans and that the present action was begun within the ERISA limitations period.
29 U.S.C. § 1113. Plaintiff contends that AIG's June 23, 1989 denial letter was the "last action which constituted a part of the breach or violation. Plaintiff argues that since suit was begun shortly following the June 23, 1989 letter, Plaintiff's claim was timely brought under § 413(a) of ERISA.
Plaintiff's belief that § 413 applies is incorrect. That section is limited to actions with respect to a breach of a fiduciary duty. Courts have held that § 413(a) does not apply to actions brought under § 502(a)(1)(B) of ERISA. The Second Circuit has stated that since "ERISA does not prescribe a limitations period for actions under § , the controlling limitations period is that specified in the most nearly analogous state limitations statute." Miles v. New York State Teamsters Conference Pension & Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir.), cert. denied, 464 U.S. 829, 78 L. Ed. 2d 108, 104 S. Ct. 105 (1983) (citing Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980)). Thus, the six-year limitations period under N.Y. Civ. Prac. L. & R. § 213 applies.
Section 213, however, is governed by § 201, which provides that "a shorter time [may be] prescribed by written agreement." Compare Hart v. Anderson, No. 77 Civ. 2680 (MJL), slip. op. at 23 (S.D.N.Y. April 24, 1981), aff'd mem., 671 F.2d 492 (2d Cir. 1981), Scheirer v. NMU Pension & Welfare Plan, 585 F. Supp. 76 (S.D.N.Y. 1984) and Moro v. Welfare Plan of NMU Pension & Welfare Plan, No. 84 Civ. 9275 (WCC), 1985 WL 1896 (S.D.N.Y. July 11, 1985) (shortened limitations period in plan regulations applicable because regulations were written agreements) with Davis v. NMU Pension & Welfare Plan, 810 F. Supp. 532 (S.D.N.Y. 1992) and Bologna v. NMU Pension Trust of NMU Pension & Welfare Plan, 654 F. Supp. 637 (S.D.N.Y. 1987) (contrary outcome on same facts and issues). Since there can be little doubt that the Plans are written agreements, the shortened limitations period in the Plans applies.
Plaintiff does not argue that there are any factors which would extend the limitation period to commence suit as provided in the Plans. Therefore, Plaintiff's action is barred by the statute of limitations.
There is no express provision for a jury trial under ERISA and the legislative history does not indicate that Congress intended such a right. Some courts, which depict employee benefit programs as trusts, a subject for equity courts, have held that there is no right to a jury trial. Other courts, which characterize employee benefit programs as contracts, grant jury trials. George Lee Flint, Jr., ERISA: Jury Trial Mandated for Benefit Claims Actions, 25 Loy. L.A. L. Rev. 361 (1992) (advocating jury trials under contractual legal remedies theory). The former courts rely on dicta of the Supreme Court incorporating trust law principles into ERISA. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 1 (1989). However, a more recent Supreme Court case seemed to suggest that ERISA does not automatically incorporate trust law remedies. Mertens v. Hewitt Assocs., 124 L. Ed. 2d 161, 113 S. Ct. 2063 (1993).
This split in law is also reflected in this circuit, where some courts have relied on Katsaros v. Cody to find a right to a jury trial in an ERISA case. 744 F.2d 270 (2d Cir.), cert. denied, 469 U.S. 1072 (1984). These courts have interpreted Katsaros as implying "that although there is no right to a jury trial when an ERISA plaintiff seeks equitable relief, a request for 'damages for wrongdoing or non-payment of benefits' may invoke a jury trial right." Adler v. Aztech Chas. P. Young Co., 807 F. Supp. 1068, 1073, 1992 WL 309548, at *5 (S.D.N.Y. 1992) (quoting Katsaros, 744 F.2d at 278)). Therefore, whether a jury trial right exists depends on the nature of the action and, more importantly, on the nature of the relief requested. Diduck v. Kaszycki & Sons Contractors, Inc., 737 F. Supp. 808, 810 (S.D.N.Y. 1990). Accordingly, jury trial demands have been granted for "legal" claims. Dawes v. First Unum Life Ins. Co., No. 91 Civ. 0103 (KMW), 1992 U.S. Dist. LEXIS 17426, 1992 WL 350778 (S.D.N.Y. Nov. 13, 1992) (jury trial granted in suit for money damages); Smith v. Union Mut. Life Ins. Co., No. 90 Civ. 1888 (LBS), 1990 U.S. Dist. LEXIS 16918, 1990 WL 209456 (S.D.N.Y. Dec. 13, 1990) (jury trial available in suit for damages arising out of a contract); Abbarno v. Carborundum, 682 F. Supp. 179 (W.D.N.Y. 1988) (jury trial granted in suit for damages for non-payment of benefits). In contrast, courts have denied jury trials when claims are "equitable." Diduck, 737 F. Supp. 808 (relying on law of trusts to conclude relief for breach of fiduciary duty was equitable in nature); Blake v. Bank of New York, No. 90 Civ. 4202 (JFK), 1992 U.S. Dist. LEXIS 10877, 1992 WL 183632 (S.D.N.Y. July 23, 1992) (same); Adler, 807 F. Supp. 1068, 1992 WL 309548 (jury trial denied in claim for equitable relief).
Plaintiff claims that she is seeking legal relief. Defendant contends that Plaintiff's action is one for equitable relief. Plaintiff seeks the benefits due to her under the Plans. She seeks an award of money damages, and, as such, her action is one seeking legal relief. While Plaintiff would be entitled to a jury trial, her action comes too late and is barred by the statute of limitations. Thus, Plaintiff's request for jury trial is moot.
AIG did not waive its defense of late notice because its reservation of rights language in the letters denying benefits preserved it. Plaintiff has failed to submit any evidence that PMI acted as AIG's agent, such that notice of accidental death to PMI constituted either a notice of claim or proof of loss to AIG. Plaintiff's reliance on ERISA's six-year limitations period is misplaced. The Plans' three-year limitations period applies. Since Plaintiff has not argued what factors can extend such period, she is barred from bringing suit. There is a right to a jury trial for suits claiming legal relief. However, since Plaintiff's action is time-barred, this issue is moot. For the foregoing reasons, Plaintiff's action is dismissed.
It is SO ORDERED.
Dated: New York, New York
April 15, 1994
Mary Johnson Lowe
United States District Judge