Martin Jennings Curry, D.c. v. Trustmark Insurance Company; Continental Assurance Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1995
MARTIN JENNINGS CURRY, D.C.,
Plaintiff – Appellant,
v.
TRUSTMARK INSURANCE COMPANY; CONTINENTAL ASSURANCE COMPANY,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:11−cv−02069−JKB)
Argued: October 29, 2014 Decided: February 6, 2015
Before GREGORY, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Gregory and Judge Agee joined.
ARGUED: Elijah Dale Adkins, III, SALSBURY, CLEMENTS, BEKMAN,
MARDER & ADKINS LLC, Baltimore, Maryland, for Appellant. Jason
Allen Walters, BRADLEY ARANT BOULT CUMMINGS, LLP, Birmingham,
Alabama, for Appellees. ON BRIEF: Emily C. Malarkey, SALSBURY,
CLEMENTS, BEKMAN, MARDER & ADKINS LLC, Baltimore, Maryland, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.

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DIAZ, Circuit Judge:
Martin Curry filed a lawsuit contending that Trustmark
Insurance Company breached the parties’ contract by refusing to
pay benefits to Curry under a disability insurance policy. The
district court disposed of Curry’s action at summary judgment on
the basis that it was largely barred by Maryland’s statute of
limitations. On the portion of Curry’s action that fell within
the limitations period, the district court ruled against Curry
on the merits. We affirm the district court’s judgment based on
our conclusion that Curry’s suit is time-barred in its entirety.
I.
Curry, a chiropractor operating his own practice, owned a
disability insurance policy originally purchased from
Continental Assurance Company and later assigned to Trustmark
Insurance Company. In pertinent part, the policy provided that
the insurance company would pay monthly benefits to Curry if a
physical disability prevented him from working as a
chiropractor. In order to determine Curry’s eligibility for
benefits, the policy also required him to submit written and
continuing proof of loss and, if necessary, to submit to an
independent medical examination (“IME”).
In 2003, Curry injured his back while performing an
adjustment on a patient. He underwent spinal surgery and

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applied for disability benefits in early 2004. Trustmark began
paying benefits to Curry, subject to Curry’s providing
information regarding the extent of his injury, condition, and
expected recovery. For the next three years, Trustmark paid
Curry monthly benefits under his insurance policy, all while
attempting to establish his continued disability. Although
Curry provided some information related to his condition during
those years, the information he provided was inconsistent and
incomplete. Consequently, in July 2007, Trustmark notified
Curry that it had discontinued his benefits, effective June 26,
2007, until it received the information it requested under the
policy.
For the next year, Trustmark and Curry exchanged
correspondence regarding the discontinuation of benefits and the
scope of the information requested by Trustmark. During that
period, Trustmark extended three additional months of benefits
to Curry. Finally, in the spring of 2008, Trustmark requested
that Curry undergo an IME to determine his continued eligibility
for benefits. Curry refused to submit to the IME unless
Trustmark paid him additional benefits that he alleged Trustmark
owed. When Curry failed to attend the IME, Trustmark denied any
additional benefits, effective June 30, 2008, and closed Curry’s
claim on September 29, 2008.

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On July 27, 2011, Curry filed suit against Trustmark and
Continental, alleging breach of contract. In ruling on
Trustmark’s motion for summary judgment, the district court
determined that Curry’s cause of action for breach of contract
accrued anew each month benefits were not paid. Consequently,
although the court concluded that Curry’s action for breach
between September 25, 2007, and July 27, 2008, was untimely
under Maryland’s three-year statute of limitations, it addressed
on the merits all alleged monthly breaches occurring after July
27, 2008. Because it found no breach of contract in Trustmark’s
requirement that Curry submit to an IME and provide continuing
proof of loss as a prerequisite for payment of his benefits, the
district court granted summary judgment to the insurance
companies.
We review de novo the district court’s grant of summary
judgment. Twin City Fire Ins. Co. v. Ben Arnold-Sunbelt
Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). We may
uphold that decision on “any grounds apparent from the record.”
United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005).

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II.
A.
In Maryland, a breach of contract action must be filed
within three years of the date it accrues. Md. Code Ann., Cts.
& Jud. Proc. § 5-101.1 Typically, the period of limitations
begins to run from the date of the alleged breach. See Jones v.
Hyatt Ins. Agency, Inc., 741 A.2d 1099, 1104 (Md. 1999).
However, actions arising from “alleged breaches of a
continuing contractual obligation” are not wholly barred by the
statute of limitations merely because one or more of those
alleged breaches occurred earlier in time. Singer Co. v. Balt.
Gas & Elec. Co., 558 A.2d 419, 425 (Md. Ct. Spec. App. 1989).
Rather,
where a contract provides for continuing performance
over a period of time, each successive breach of that
obligation begins the running of the statute of
limitations anew, with the result being that accrual
occurs continuously and a plaintiff may assert claims
for damages occurring within the statutory period of
limitations.
Id. at 426
In this case, the district court determined that Trustmark
“breached the contract each time [it] failed to pay benefits for
a period during which [Curry] was disabled.” Curry v. Trustmark
1 Because this case arises under our diversity jurisdiction
pursuant to 28 U.S.C. § 1332, we apply Maryland law.

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Ins. Co., No. 11–cv–2069–JKB, 2013 WL 3716413, at *4 (D. Md.
July 15, 2013). Because it concluded that “[e]ach failure to
pay monthly benefits . . . is a separate and independent
breach,” the district court found timely “claims for payments
that were not due until after July 27, 2008.” Id.
We disagree. Although we have found no authoritative
Maryland precedent applying the “continuing breach” theory to an
insurance disability policy, the Court of Appeals of Maryland
has opined, in the context of a tort action, that a similar
theory does not apply to the “continuing effects of a single
earlier act.” MacBride v. Pishvaian, 937 A.2d 233, 240 (Md.
2007), overruled on other grounds by Litz v. Maryland Dep’t of
Env’t, 76 A.3d 1076, 1090 n.9 (Md. 2013); see also Poole v.
Coakley & Williams Const., Inc., 31 A.3d 212, 238 n.24 (Md.
2011) (where the plaintiff “did not allege ongoing tortious
conduct, but only that resulting in a single injury incurred on
one day”); Bacon v. Arey, 40 A.3d 435, 469 (Md. Ct. Spec. App.
2012) (where the plaintiff’s allegations involved simply “the
continuing ill effects of prior tortious acts”).
Other courts have rejected a broad application of a
continuing breach theory of accrual. For example, federal
district courts in Maryland have concluded that while harm in a
given case may be continuous, often there exists only a single
violation or breach “from which all of Plaintiff’s harm flowed.”

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Montrose Educ. Servs., Inc. v. Sylvan Learning Sys., Inc., No.
RDB 06-308, 2007 WL 979923, at *5 (D. Md. Mar. 30, 2007)
(quoting Ruddy v. Equitable Life Assurance Soc., No. DKC 00-70,
2000 WL 964770, at *5 (D. Md. June 20, 2000)).
In the insurance context, both the Tenth and Eleventh
Circuits have rejected the idea that disability policies are
installment contracts giving rise to continuing breaches for
each unpaid monthly benefit. See Lang v. Aetna Life Ins. Co.,
196 F.3d 1102, 1105 (10th Cir. 1999) (borrowing Utah law to
determine the statute of limitations under ERISA and holding
that characterizing disability policies as installment contracts
would “undermine the overriding purpose of a statute of
limitation”); Dinerstein v. Paul Revere Life Ins. Co., 173 F.3d
826, 828 (11th Cir. 1999) (applying Florida law and holding that
the cause of action at hand was not for a debt “payable by
installments” but rather sought “to define the rights and
obligations of the parties under the original insurance
contract”).
Some courts have reached the opposite conclusion, treating
a disability insurer’s failure to pay benefits as a breach of an
installment contract, and therefore concluding that the statute
of limitations runs separately as to each missed payment. See,
e.g., Pierce v. Met. Life Ins. Co., 307 F. Supp. 2d 325, 330
(D.N.H. 2004) (collecting cases). However, the Ninth Circuit

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has distinguished between the “denial of a basic entitlement to
benefits on the one hand, and the denial of an entitlement to
recover a particular periodic installment on the other.” Wetzel
v. Lou Ehlers Cadillac Grp. Long Term Disability Ins. Program,
222 F.3d 643, 650 (9th Cir. 2000) (applying California law). In
the context of a pension plan’s refusal to pay benefits, Wetzel
instructs that the right to receive periodic pension benefits is
a “continuing one” that would give rise to an installment
contract; however, such a duty does not exist where the right to
receive the pension itself has not first been established. See
id.
Similarly, the issue here is whether the disability
benefits are “owed in the first place.” Dinerstein, 173 F.3d at
829. Curry alleges that because his back injury rendered him
disabled under his disability insurance policy, he is owed
benefits under the policy. According to Curry, then,
Trustmark’s refusal to pay benefits after September 25, 2007,
constitutes a breach of contract. However, the policy does not
provide Curry an unconditional right to receive benefits in
perpetuity; rather, his receipt of benefits is subject to his
providing adequate continuing proof of loss. Trustmark has
maintained that it did not owe Curry additional benefits because
he failed to provide this continuing proof of loss. Therefore,
because the alleged breach arose from Trustmark’s denial that it

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owed Curry benefits at all, no installment contract exists, and
the continuing breach theory is not applicable.2
B.
We turn next to Curry’s contention that the alleged breach
occurred, and the statute of limitations began running, when
Trustmark closed his claim for benefits on September 29, 2008.
Curry presses two arguments on this point. First, he says that
applicable law demonstrates that, in the context of a disability
policy, a cause of action for breach accrues only after an
insurer formally denies the claim. Second, he contends that
even if his breach of contract action accrued earlier, he could
not possibly have known about it until September 2008, thus
tolling the statute of limitations until that point. We reject
both arguments, addressing each in turn.
1.
As we have discussed, the statute of limitations on a
contract action begins to run from the date of the alleged
breach. Jones, 741 A.2d at 1104. In order for a cause of
2 We find misplaced the district court’s reliance on two
district court cases to establish the applicability of a
continuing breach theory. See Curry, 2013 WL 3716413, at *4
(citing Mut. Life Ins. Co. of N.Y. v. Moyle, 116 F.2d 434 (4th
Cir. 1940) and Medina v. Provident Life & Accident Ins. Co., No.
L-10-3146, 2011 WL 249502 (D. Md. Jan. 24, 2011)). These cases
say nothing about accrual of the statute of limitations.
Rather, they involve only the determination of the amount in
controversy for jurisdictional purposes.

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action for breach of contract to exist, a party must show
contractual obligation, breach of that obligation, and damages.
See, e.g., Kumar v. Dhanda, 17 A.3d 744, 749 (Md. Ct. Spec. App.
2011). Given that Curry’s cause of action for breach is based
on Trustmark’s non-payment of benefits owed under the contract,
it seems an unremarkable proposition that his action for alleged
breach of contract arose when Trustmark stopped paying benefits
on June 30, 2008.3
Curry disagrees, arguing that because Trustmark did not
formally close his claim for benefits until September 29, 2008,
he had no right to bring an action before then. Although he
admits that no case law exists evaluating specifically “when
claims for breach of a disability insurance contract accrue for
the purpose of the statute of limitations,” Appellant’s Br. at
14, he points to case law from Maryland and the U.S. Supreme
Court to support his argument that the statute of limitations
accrues only after an insurer formally denies a claim. We find
these cases readily distinguishable.
3 Although Trustmark initially stopped paying benefits on
June 26, 2007, Trustmark’s equivocation in three times paying
Curry an additional month of benefits (on August 1, 2007,
February 27, 2008, and April 22, 2008) calls into question its
original decision to stop benefit payments. Thus, as we are
required to do, we take the facts in the light most favorable to
Curry, and assume that, at the very latest, Trustmark terminated
additional benefit payments on June 30, 2008.

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For example, Vigilant Insurance Co. v. Luppino--on which
Curry heavily relies--involved an insurer’s denial of its duty
to defend the insured under a homeowner’s insurance policy. 723
A.2d 14, 15 (Md. 1999). Although the insurer denied a defense
to Luppino at the onset of an underlying tort lawsuit filed
against Luppino by third parties, Luppino did not file a breach
of contract action against the insurer until four years later,
near the end of the tort lawsuit.
On the issue of whether the three-year statute of
limitations barred Luppino’s action, the Court of Appeals of
Maryland held that because the duty to defend is a “continuing
one,” involving personal services, the statute only began to run
from the time that duty could be completed--in that case, at the
termination of the underlying lawsuit. See id. at 18. Notably,
Luppino involved the “continuation of events” exception to the
strict “date of the wrong” rule of accrual.4 See id. Here,
Curry does not contend that an insurer’s duty to pay disability
4 The “continuation of events” exception typically arises in
cases involving services or treatment (as by a lawyer or
physician), along with a “relationship” between the parties that
would give one party no reason to question the quality of the
services or treatment. See, e.g., Frederick Rd. Ltd. P’ship v.
Brown & Sturm, 756 A.2d 963, 974–75 (Md. 2000). However, as in
Luppino, this tolling doctrine has also been applied “where
there is an undertaking which requires a continuation of
services, or the party’s right depends upon the happening of an
event in the future.” Luppino, 723 A.2d at 18 (quoting W., B. &
A. Elect. R.R. Co. v. Moss, 100 A. 86, 89 (1917)).

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benefits is a duty involving services that should be subject to
this common law exception. Consequently, Luppino is
inapplicable to this case.
Curry’s reliance on Lane v. Nationwide Mutual Insurance
Co., 582 A.2d 501 (Md. 1990), is similarly misplaced. Lane
involved a claim for recovery of uninsured motorist benefits,
where the Lanes notified their insurer of their suit against an
uninsured motorist but the insurer made no determination
regarding the status of their claim at that time. 582 A.2d at
502. When, four years later, the Lanes sued the insurer to
recover uninsured motorist benefits, the insurer argued that
their action was time-barred. Id.
The Court of Appeals of Maryland held that because
Nationwide did not deny benefits at the time the Lanes notified
them of the lawsuit against the uninsured motorist, no breach
occurred that would have caused the statute of limitations to
begin running. See id. at 505. Here, in contrast, Trustmark
denied benefits to Curry both on June 26, 2007, when it
preliminarily ceased paying benefits, and on June 30, 2008, when
it unequivocally terminated Curry’s benefit payments. As a
result, Lane is distinguishable.
Curry also misreads the Supreme Court’s decision in Mobley
v. New York Life Insurance Co., 295 U.S. 632 (1935), as standing
for the proposition that a disability policy is breached--and

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therefore that the statute of limitations begins running--only
when the policy is absolutely repudiated. There, a disability
insurer initially refused to pay benefits after determining
Mobley was not disabled, but then it reinstated benefits after
further investigation. Nevertheless, in his lawsuit Mobley
argued that the insurer’s actions “fully repudiated” the policy,
such that he was entitled to expectation damages in the amount
of benefits he would have received over the course of his
lifetime. Mobley, 295 U.S. at 636. Because it found that the
insurance company’s actions evidenced intent to adhere to the
insurance policy, the Court held that the contract was not
“absolutely and finally” broken such that Mobley could recover
the damages he sought. Id. at 638.
However, the Court did not--as Curry seems to think--
conclude that breach requires total repudiation of the contract.
Notably, the Court’s holding supports the opposite argument that
an insurer’s denial of benefits alone may constitute a breach:
“Mere refusal, upon mistake or misunderstanding as to matters of
fact or upon an erroneous construction of the disability clause,
to pay a monthly benefit when due is sufficient to constitute a
breach of that provision . . . .” Id. (emphasis added).
To hold that an insured cannot bring an action until an
insurer formally denies the claim for benefits would, as the
district court noted, allow insurers to “prevent policy holders

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from suing by continuing in perpetuity to consider the claims
open and the denial of benefits preliminary.” Curry, 2013 WL
3716413, at *3 n.5. This cannot be so. Therefore, we conclude
that Curry’s cause of action for breach of contract arose--and
the statute of limitations began to run--when Trustmark
terminated Curry’s monthly benefit payments on June 30, 2008.5
As a result, his suit, filed on July 27, 2011, falls outside the
limitations period.6
2.
Curry nevertheless contends the limitations period should
have been tolled under Maryland’s discovery rule, which delays
accrual of the statute of limitations when a party neither knows
nor reasonably should have known of a breach. See Poffenberger
5 Trustmark’s August 4, 2008, payment of two years’ worth of
“Social Insurance Substitute Benefits” does not affect our
conclusion. Under Curry’s policy, payment of these additional
benefits was contingent on Curry’s eligibility for his monthly
disability benefits. Trustmark’s payment of these benefits only
through September 25, 2007--the same date through which
Trustmark paid disability benefits--simply reflects Trustmark’s
earlier discontinuation of benefits past that date.
6 We reject Curry’s contention that, even though a plaintiff
“is not precluded from filing a lawsuit when an insurer denies a
monthly benefit,” the statute of limitations does not begin to
run “until there is a final termination of the contract by the
insurer.” Appellant’s Br. at 15 n.8. To the contrary, Maryland
courts have expressly recognized that a cause of action accrues
where a plaintiff “could have maintained his action to a
successful result.” Goldstein v. Potomac Elec. Power Co., 404
A.2d 1064, 1069 (Md. 1979); see also Luppino, 723 A.2d at 19
(quoting Moss, 100 A. at 89).

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v. Risser, 431 A.2d 677, 680 (Md. 1981). Specifically, Curry
argues that even if his cause of action arose when Trustmark
discontinued paying his monthly benefits, he was not aware of
the alleged breach until Trustmark closed his claim on September
29, 2008. However, both the subjective and objective evidence
suggests that Curry knew he had an action for breach before July
27, 2008.
First, by Curry’s own admission, he believed Trustmark
breached the terms of the insurance policy when it stopped
paying him benefits. Specifically, Curry testified in his
deposition that he considered Trustmark in breach of its
obligations as of a January 9, 2008, letter he sent to
Trustmark. Further, Curry never disputed his receipt of
Trustmark’s June 30, 2008, letter, in which it unequivocally
denied Curry additional benefits until he produced adequate
proof of continuing loss. These facts establish that Curry both
knew and should have known of any alleged wrong prior to July
27, 2008. We therefore conclude that the discovery rule did not
toll the limitations period.
III.
For the reasons given, we affirm the district court’s
judgment.
AFFIRMED

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