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MOSS v. SUNLIFE INS. & ANNUITY CO.

December 15, 1995

LINDA MOSS, Plaintiff, against SUNLIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK, Defendant. SUNLIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK, Third Party Plaintiff, -against- U.S. TELE-COMM, INC., BARRY BERMAN and PETER GORDON, Third Party Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Linda Moss brings this action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. ยงยง 1001 et seq., to recover the $ 300,000 death benefit on a group life insurance policy that allegedly covered her late husband, Eric Moss, the former general counsel of third party defendant U.S. Tele-comm, Inc. ("Telecomm"). The defendant, SunLife Insurance and Annuity Company of New York ("SunLife"), suspects that Moss was not an employee of Telecomm, but an independent practitioner and therefore not covered. It disclaimed liability solely on the ground that Telecomm failed to submit proof of Moss' employment satisfactory to SunLife, as the policy allegedly required. SunLife moves for summary judgment dismissing the complaint.

 Facts

 The Policy

 In late 1991, Telecomm began to seek a group life insurance policy for its employees and commenced serious discussions with SunLife in early 1992. The policy was issued to Telecomm effective May 1, 1992.

 The policy provided that it covered "an Employee . . . on the first day that the Employee is Actively at Work after completion of the Waiting Period." (Prior Aff. Ex. D (hereinafter "Policy"), at 8) "Employee" was defined as:

 
"A person classified by the Employer [Telecomm] as a permanent full-time employee who is scheduled to work at least 30 hours a week at the Employer's place of business or at some other site where the Employer requires him to be."

 (Id. at 4) *fn1"

 Thus, the policy left Telecomm some discretion in determining which of its personnel qualified for coverage.

 The general provisions of the policy contained also the clause that is at the heart of this dispute:

 
"Proof We may require proof in connection with the terms or benefits of this Policy. If proof is required, we must be provided with such evidence satisfactory to us as we may reasonably require under the circumstances." (Id. at 17)

 Moss' Role at Telecomm

 Eric Moss was one of the founders of Telecomm and served from October 1987 until his death as corporate secretary and legal counsel for Telecomm and its sister company, NAI of New York, Inc. ("NAI"). *fn2" He worked out of an office around the corner from Telecomm's main office, allegedly as a result of space limitations, but he is said typically to have worked a six day, fifty-plus hour week for Telecomm before he became ill. He was paid both by Telecomm and NAI, and the income was reported to the Internal Revenue Service, at least in 1992, as nonemployee compensation on Form 1099 rather than as wages on Form W-2. ...


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