Gregory Parsley, DDS v. Great-West Life and Annuity Insurance Co.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12459
Non-Argument Calendar
____________________
GREGORY PARSLEY, DDS,
Plaintiff-Appellant,
versus
GREAT-WEST LIFE AND ANNUITY INSURANCE CO.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:22-cv-60800-AHS
____________________
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2 Opinion of the Court 22-12459
Before ROSENBAUM, J ILL PRYOR , and BRANCH, Circuit Judges.
PER CURIAM:
Gregory Parsley, proceeding pro se, appeals the district
court’s dismissal of his civil complaint for breach of contract as
time-barred. After review, we affirm.
I. Background
On April 16, 2022, Parsley, through counsel, filed a civil
complaint against Great-West Life and Annuity Insurance
Company (“Great-West”) in Florida state court. The complaint
alleged the following. Great-West serviced disability insurance
policies, including Parsley’s policy. Parsley’s disability policy was
intended “to compensate [Parsley] on a monthly basis should he
suffer a total disability due to injuries or sickness.” On July 19, 2013,
Parsley filed a claim for benefits with Great-West asserting that he
was disabled due to end-stage kidney failure. After Great-West
denied the claim, Parsley appealed; Great-West denied the appeal
on March 1, 2014. Parsley then filed a second appeal, which
Great-West denied on November 19, 2014.1 Almost five years
later, Parsley filed a third appeal, which was denied on March 7,
1 Parsley alleged that neither the March or the November 2014 denial was
designated as a “final denial or decision.”
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22-12459 Opinion of the Court 3
2019.2 Parsley then waited over three years before filing the
underlying complaint in Florida state court.
Parsley alleged that under the insurance contract
Great-West owed him monthly payments and interest from
“August 2011 and going forward to age 65” because it failed to
honor its obligations under the terms of the contract. He asserted
that Great-West breached the implied contractual covenant of
good faith, fair dealing, and commercial reasonableness. Parsley
sought judgment awarding all contract benefits plus interest, costs,
and attorney’s fees.
Parsley attached a copy of the insurance policy to the
complaint. In relevant part, the policy provided that if an insured
disagreed with Great-West’s benefit determination, the insured
could appeal the decision by sending a notice of appeal along with
certain other information to Great-West. Great-West would then
notify the insured of its “written final decision . . . within 60 days of
[Great-West’s] receipt” of the insured’s appeal. Furthermore, the
policy prohibited the insured from instituting any legal action
“(1) prior to the date of [Great-West’s] final decision on the appeal;
nor (2) more than three years after the date of the Company’s final
decision on the appeal.” Finally, the policy contained a choice-of-
2 In his complaint, Parsley alleged that the third appeal was denied on April 15,
2019, but in his response to the motion to dismiss, he conceded that the third
appeal was in fact denied on March 7, 2019. He also acknowledged that he
had a fourth appeal that was denied on April 15, 2019.
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4 Opinion of the Court 22-12459
law provision, providing that all policy-related disputes between
the insured and Great-West were governed by Illinois law.
Great-West removed the case to federal court on the basis
of diversity jurisdiction under 28 U.S.C. § 1332. Great-West then
moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6), arguing that the claim was time-barred by the
policy’s language that prohibited an insured from initiating a legal
action “more than three years after the date of the Company’s final
decision on the appeal.” Great-West asserted that it issued its final
decision on March 31, 2014 when it denied Parsley’s first appeal.3
Therefore, pursuant to the policy’s terms, Parsley had until March
31, 2017, to initiate legal action, and his April 1, 2022, complaint
came too late. Moreover, Great-West asserted that even if the
limitations period ran from the date of Great-West’s denials of the
second appeal on November 19, 2014, or the third appeal on March
7, 2019, the suit was still time-barred.
In support of its motion to dismiss, Great-West attached the
denial letters it sent Parsley on March 31, 2014, November 19, 2014,
and March 7, 2019. The March 2014 letter explained that it had
“reviewed [Parsley’s] entire claim file as well as Great-West’s
3 In response to Parsley’s contention that the March 2014 letter denying
Parsley’s first appeal and the subsequent November 2014 letter denying the
second appeal were not formally designated as a “final denial or decision,”
Great-West argued that nothing in the policy required Great-West’s letters to
include such language. Furthermore, Great-West argued that nothing in the
letters indicated that Parsley’s claim remained open or that Great-West was
going to continue investigating the claim.
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22-12459 Opinion of the Court 5
administrative records under the ADA Income Protection Plan in
order to address the current status of [Parsley’s] coverage and
provide a comprehensive response to [his] appeal for disability
income benefits.” Great-West then explained that Parsley’s
coverage under the policy ended on July 1, 2011, on the day he
“became unemployed following closure of the dental offices in
which [he] worked.” And because his coverage terminated July 1,
2011, “there [were] no benefits available for total disability
commencing December 2011. . . . As such, Great-West has no
alternative but to maintain its denial of benefits on the grounds that
no coverage was in effect at the time total disability
commenced. . . . ”
The November 2014 letter stated that Great-West had
reviewed Parsley’s appeal “dated October 30, 2014,” along with the
new evidence he submitted, but its determination “remain[ed]
unchanged.” Great-West explained that it “[had] no alternative but
to maintain [its] denial of benefits based on the fact there was no
coverage in effect at the time [Parsley’s] total disability
commenced, whether that was August, September or December of
2011.”
The third letter dated March 7, 2019, was directed to
Parsley’s counsel. It provided that Great-West had reviewed a
letter from Parsley’s counsel “dated February 11, 2019, along with
attachments referencing [Parsley’s] prior medical treatment,” but
Great-West “respectfully decline[d] to re-open the claim.”
Additionally, in this letter, Great-West provided a detailed
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6 Opinion of the Court 22-12459
background of Parsley’s claim, including that “Great-West issued a
final decision in response to [Parsley’s] appeal in a letter dated
November 19, 2014.”
Parsley, through counsel, opposed Great-West’s motion to
dismiss. He acknowledged that Great-West denied his third appeal
on March 7, 2019, and he conceded that his claim was subject to
“the 3-year statute of limitation” in the policy. Nevertheless, he
argued that the limitations period ran from a fourth letter he
received on April 15, 2019. He maintained that “it [was] improper
to attempt to resolve the statute of limitations issue without the
benefit of additional discovery” and that the issue of which of the
letters constituted Great-West’s final decision was “a matter to be
clarified with discovery and potentially expert witness testimony
regarding finality and what is common in the industry.” Parsley
attached the April 15, 2019, letter to his response. Like the previous
letter, this one was addressed to Parsley’s counsel, and stated that
Great-West had received counsel’s “correspondence dated April 8,
2019” but it
remain[ed] convinced that the final decision reached
regarding Dr. Parsley’s claim was correct and that the
time limitation language [Great-West] previously
referenced [did] not require [it] to entertain
previously made or new arguments made more than
three years after what was plainly a final decision
which Dr. Parsley and Great-West have both treated
as such.
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22-12459 Opinion of the Court 7
Great-West, in turn, argued that the court should dismiss
the complaint as time-barred because the face of the complaint and
documents incorporated by reference made clear that Parsley’s
lawsuit was untimely.4 It maintained that each of the three letters
it submitted were central to Parsley’s claim and affirmed that
Great-West issued its final decision more than three years prior to
the instant lawsuit, and that no additional discovery was necessary
in order to determine finality.5
Upon review, the district court granted Great-West’s
motion to dismiss, concluding that Parsley’s complaint was time-
barred. The district court determined that the November 2014
letter and the March 2019 letter made “clear that the actual final
decision on [Parsley’s] appeal occurred no later than November 19,
2014.”6 In support, the district court highlighted that the
4 Great-West noted that Parsley did not dispute that the district court could
consider the letters it attached to its motion to dismiss.
5 Moreover, Great-West contended that, at a minimum, Parsley was on notice
via the March 7, 2019, letter that Great-West’s decision was final and, at a
minimum, Parsley should have filed his lawsuit within three years of that date.
6 The court noted that, at the motion to dismiss stage, it could consider
documents attached to a motion to dismiss if the attached documents were
“central to the plaintiff’s claim and . . . undisputed, meaning [their]
authenticity [was] not challenged.” See Day v. Taylor, 400 F.3d 1272, 1276 (11th
Cir. 2005) (“[T]he court may consider a document attached to a motion to
dismiss without converting the motion into one for summary judgment if the
attached document is (1) central to the plaintiff’s claim and (2) undisputed.”).
Although Parsley did not oppose the district court’s consideration of the letters
submitted by Great-West and did not challenge their authenticity, “in an
abundance of caution,” the district court decided that it would “only consider
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8 Opinion of the Court 22-12459
November 2014 letter stated that Great-West’s “determinations
regarding the termination of Parsley’s coverage . . . remained
unchanged” and Great-West had “no alternative but to maintain
[its] denial of benefits based on the fact that there was no coverage
in effect at the time [Parsley’s] total disability commenced.” The
district court explained that this unambiguous language
demonstrated that the letter constituted a final decision “because it
definitively denie[d] the appeal and [gave] no indication that there
[would] be further consideration of the appeal.” Furthermore, the
district court explained that, under Illinois law, an insured’s
repeated requests for modification of a prior final decision do not
toll the limitation period. In other word’s Parsley’s contentions
that each letter from Great-West in response to his repeated
requests for Great-West to reconsider its decision constituted a
new final decision from which the limitations period ran anew
failed. Accordingly, the district court dismissed the complaint as
time-barred. Parsley, proceeding pro se, filed a timely appeal of the
dismissal.
II. Discussion
Liberally construing Parsley’s briefs,7 he argues that the
district court erred in dismissing the complaint as time-barred
those pieces of correspondence both referenced in [Parsley’s] Complaint and
attached in the [motion to dismiss]”—i.e., the November 2014 denial letter and
the March 2019 denial letter.
7 We note that Parsley does not cite any case law or legal authority in his briefs.
This fact alone provides a basis for us to affirm the district court because he
effectively abandoned his claims. See Sapuppo v. Allstate Floridian Ins. Co., 739
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22-12459 Opinion of the Court 9
because the April 2019 letter initiated the running of the limitation
period, and it “was the first time Great-West used the term final
decision.”8 He also notes that Great-West never told him to not
“send any more appeals” in the prior denial letters.9
F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons
a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”); Singh v.
U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (explaining that “an
appellant’s brief must include an argument containing appellant’s contentions
and the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies,” and that “simply stating that an issue
exists, without further argument or discussion, constitutes abandonment of
that issue and precludes our considering the issue on appeal”); see also GJR
Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)
(explaining that although pro se pleadings are to be liberally construed, a court
may not “serve as de facto counsel for a party” or “rewrite an otherwise
deficient pleading in order to sustain an action”), overruled on other grounds as
recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). Nevertheless,
we set aside the abandonment issue and address the claims that Parsley
preserved for appeal.
8 This assertion is belied by the record. In its March 7, 2019, letter Great-West
stated that it “issued a final decision in response to [Parsley’s] appeal in a letter
dated November 19, 2014.”
9 Parsley also argues for the first time that the three-year limitation period in
the policy does not apply to him because he was “never informed of its
existence” and “never received a booklet” concerning the policy, despite his
requests for one over the years. Rather, he maintains that the applicable
statute of limitations for a breach of contract claim under Illinois law is 10
years. On the other hand, he also asserts for the first time in his reply brief
that he was unaware that Illinois law governed the policy. However, in the
district court proceedings, Parsley expressly conceded in his counseled
response to the motion to dismiss that Illinois law governed the issues in this
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10 Opinion of the Court 22-12459
We review de novo a district court’s ruling on a motion to
dismiss, “accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.” Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003).
“Illinois law recognizes limitation periods as valid
contractual provisions in an insurance contract.” Am. Access Cas.
Co. v. Tutson, 948 N.E.2d 309, 312 (Ill. App. Ct. 2011). Here,
Parsley’s policy, which he attached to his complaint, established a
three-year limitation period from the date of Great-West’s “final
decision on the appeal.” Parsley does not dispute that he received
a letter in November 2014 denying his appeal. Rather, he argued
below that the letter did not represent a final decision, in large part
because it did not contain the words “final decision” and because
no one told him to stop filing appeals. We disagree.
Even assuming arguendo that we accepted Parsley’s
argument that he did not understand that the November 2014
letter was Great-West’s final decision on his appeal, his complaint
case and that the applicable statute of limitations was three years. Thus, he
failed to preserve for appeal any challenge to the applicability of Illinois law or
the three-year statute of limitations period. See Walker v. Jones, 10 F.3d 1569,
1572 (11th Cir. 1994) (providing that “an issue not raised in the district court
and raised for the first time in an appeal will not be considered by this Court”).
Consequently, we do not address these issues.
Additionally, Parsley disputes the merits of Great-West’s decision to
deny his disability claim and its conclusion that he did not have effective
coverage. The merits of Great-West’s decision to deny Parsley’s disability
claim was not an issue before the district court, and, therefore, is not properly
before us.
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22-12459 Opinion of the Court 11
was still time-barred. Specifically, in its March 7, 2019, letter,
Great-West expressly stated that it had “issued a final decision in
response to [Parsley’s] appeal in a letter dated November 19, 2014.”
Thus, there can be no debate that, at the latest, Parsley knew that
there had been a “final decision” in his case as of March 7, 2019,
triggering the three-year limitation period.10 And even if the three-
year limitation period ran from the March 7, 2019, letter, Parsley’s
complaint filed on April 1, 2022, was outside that three-year
window.
To the extent that Parsley’s arguments suggested that the
appeal was not final because Great-West continued to accept his
letters seeking reconsideration and respond to them in 2019, his
claim fails under Illinois law. Specifically, Illinois statute § 143.1
governs the tolling of contractual limitation periods like the one
here. Am. Access Cas. Co., 948 N.E.2d at 312; see also 215 Ill. Comp.
Stat. 5/143.1. Section 143.1 provides that when, as here, an
insurance policy “contains a provision limiting the period within
which the insured may bring suit, the running of such period is
tolled from the date proof of loss is filed, in whatever form is
required by the policy, until the date the claim is denied in whole
or in part.” 215 Ill. Comp. Stat. 5/143.1. In Vala v. Pac. Ins. Co., the
plaintiff made a similar claim to that of Parsley, and argued that his
policy’s one-year limitation period was tolled while the insurance
10 In light of the notification in the March 7, 2019, letter that Great-West’s
decision was final, we need not decide whether the March and November 2014
letters were final decisions.
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12 Opinion of the Court 22-12459
company reinvestigated his claim following the initial denial, and,
therefore, his complaint was timely filed. 695 N.E.2d 581, 582–83
(1998). The Appellate Court of Illinois rejected this argument and
held that, under § 143.1, unless the insurance company rescinds its
denial of the claim, “[t]he period of time between [the insured’s]
receipt of [the insurance company’s] denial and the reaffirmation
of [the company’s] denial does not constitute time that can be
tolled.” Id. at 584. Rather, tolling of the limitations period ceases
“upon the date of the original (and never rescinded) denial
pursuant to [§] 143.1.” Id. Thus, under § 143.1 and Vala, Great-
West’s continued acceptance of Parsley’s requests for
reconsideration did not otherwise toll the applicable three-year
limitation period, which began to run on November 19, 2014,
when Great-West denied Parsley’s appeal.
Accordingly, for the above reasons, the district court did not
err in dismissing Parsley’s complaint as time-barred.
AFFIRMED.
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