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June 8, 2005.


The opinion of the court was delivered by: WILLIAM PAULEY, District Judge


This action arises out of denial by Defendant First UNUM Life Insurance Company's ("First UNUM") of long term disability ("LTD") and life insurance benefits to Plaintiff Constance S. Keiser ("Plaintiff" or "Keiser"). Plaintiff alleges that First UNUM's denial violates the Employment Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA"). This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). This Court conducted a bench trial.*fn1


  This Opinion and Order presumes familiarity with the Court's prior decisions in this action. See Keiser v. CDC Inv. Mgmt. Corp., 2004 WL 516212 (S.D.N.Y. Mar. 17, 2004) ("Keiser III"); Keiser v. CDC Inv. Mgmt. Corp., 2003 WL 1733729 (S.D.N.Y. Mar. 25, 2003) ("Keiser II"); Keiser v. CDC Inv. Mgmt. Corp., 160 F.Supp. 2d 512 (S.D.N.Y. 2001) ("Keiser I") I. The Parties

  Keiser, a New York resident, was born on May 22, 1951. (Trial Transcript ("Tr.") at 41-42; Administrative Record ("AR") at 378.) She graduated from Drury College in Springfield, Missouri, with a bachelor's degree in business and physical education. (AR at 225.) Since graduation, Keiser's employment has been in the field of marketing asset management products for various companies. (Tr. at 26; AR at 225-26.)

  First UNUM issued to CDC Investment Management Corp. ("CDC") a Group Long Term Disability Policy (the "LTD Policy"), bearing policy number 45667-002. The LTD Policy was in effect during the periods relevant to this action, and Keiser alleges coverage. (Joint Pre-Trial Order ("JPTO") at 3.)

  II. Keiser's Employment at CDC

  Keiser worked as a marketer in the investment management business for over twenty-five years. (Tr. at 25-27.) As a marketer, Keiser worked at CDC and other asset management companies that manage pension and 401(k) plans for private and public companies and provide asset management services for high net-worth individuals. (Tr. at 26.) Keiser devoted most of her time contacting corporate "gatekeepers," the individuals responsible for their respective company's asset management decisions. (Tr. at 26-28; AR at 227.) As part of her efforts, Keiser made cold-calls, conducted one-on-one meetings, arranged private parties and events and attended industry-specific conferences at least once a month.*fn2 (Tr. at 27-28; AR at 227, 408.)

  In June 1992, Keiser started her employment with CDC. (JPTO at 3.) CDC, an asset management company, manages pension and 401(k) plans for companies and provides asset management plans for high net-worth individuals. While at CDC, Keiser worked from various locations, including her Manhattan office, out-of-office conference locations, client's offices, golf courses, restaurants, hotels, cars, trains and airplanes. (AR at 408.) Keiser spent approximately sixty to seventy percent of her time traveling for client development purposes. (AR at 407-08.) In addition to client development, Keiser was responsible for preparing presentations and documents describing the investment products of CDC, giving advice regarding development of investment products and helping draft written responses to requests for proposals. (Tr. at 28-29; AR at 408-09.)

  In 1995, Keiser's last full year at CDC, she was responsible for bringing in approximately $1.2-1.3 billion in assets. (Tr. at 29-30.) Her base salary was $175,000, and her commissions totaled over $600,000. (Tr. at 29-30.)

  In March 1996, Keiser and her supervisor, Seth Wohlberg ("Wohlberg"), agreed that Keiser would leave CDC. Toward this end, Keiser and CDC executed a Resignation Acceptance Agreement dated March 15, 1996 ("Resignation Agreement"), which provided, inter alia:
Your [i.e., Keiser's] resignation will be effective as of the close of business on June 30, 1996 (the Resignation Date). It is agreed that following the Resignation Date, you will be entitled to remain on the CDC active payroll, as if you were a full-time, active employee, for a three month severance period through September 30, 1996 (the Severance Period) and will continue to receive your base salary during the Severance Period. However, except as specifically set forth in this Agreement, you will not be required and shall not perform the duties of your employment with CDC or hold yourself out to others as an employee of CDC on or after March 31, 1996. During the Severance Period, you shall continue to be eligible to receive commissions with respect to any BRIC business originating from your assigned intermediaries and direct clients, as identified on Exhibit A hereto, and resulting in a consummated BRIC transaction prior to March 31, 1996 that gives rise to the right to receive commission payments in accordance with CDC's existing commission schedules and policies.
(AR at 246.) The Resignation Agreement required Keiser to attend some conferences on CDC's behalf, and to assist with arrangement for those conferences. (AR at 245.) While CDC would compensate Keiser for unused accrued vacation through March 31, 1996, she could elect to contribute to her CDC 401(k) profit sharing plan from her bonus payment scheduled for June 30, 1996. (AR at 245.)

  As enunciated in the Resignation Agreement, Keiser continued her relationship-maintenance and public-relations work for CDC through June 1996. (Tr. at 31-32; Declaration of Seth Wohlberg, dated Sept. 7, 2000 ("Wohlberg Decl.") ¶¶ 7-8.) CDC provided Keiser with an executive office in Westchester until the end of September. (AR at 240; see also AR at 248 ("Connie's last day at the office was March 31, but she attended a few conferences on behalf of CDC between March 31 and June 30, 1996. . . . Her last day of employment officially was September 30, 1996.") The Resignation Agreement restricted Keiser from holding herself out as an employee of CDC after March 31, 1996 to ensure that she would not "bind CDC financially or contractually during the period from April 1, 1996 through June 30, 1996" and to wind down her activities for CDC. (Wohlberg Decl. ¶¶ 6, 8.) Pursuant to the Resignation Agreement, Keiser attended three conferences on behalf of CDC: (1) the Guaranteed Investment Contract ("GIC") Conference in Naples, Florida, on April 20, 1996 (AR at 245; Declaration of Constance S. Keiser, dated Sept. 11, 2000 ("Kesier Decl.") ¶ 26); (2) the Association of Investment Management Sales Executives ("AIMSE") Conference in Orlando, Florida, on May 5, 1996 (AR at 245; Keiser Decl. ¶ 27); and (3) the Randy Cross Invitational Golf and Tennis Tournament at Stanford University ("Randy Cross Tournament") from June 9-11, 1996 (Keiser Decl. ¶ 28 & Ex. E: Registration Form.) CDC agreed to reimburse Keiser for the costs of attending the conferences. (AR at 240, 245.) In exchange for the reimbursement, Keiser was required to

provide reasonable assistance as may be requested by CDC in arranging and planning CDC sponsored events and activities at such Conferences, including, without limitation, making such arrangements as may be necessary to assure that CDC retains its status as a participant and speaker at such Conferences.
(AR at 245.)

  At the GIC Conference, Keiser organized a CDC-sponsored golf tournament and a private cocktail party for existing and prospective clients. (Keiser Decl. ¶ 26.) Similarly, with Wohlberg's approval, Keiser attended the AIMSE Conference as CDC's representative. (Keiser Decl. ¶ 27 & Ex. D.) Finally, Keiser also attended the Randy Cross Tournament as CDC's representative. (Keiser Decl. Ex. E.) There, upon Wohlberg's request, Keiser performed marketing-related functions for CDC. (Keiser Decl. ¶ 28.)

  During this same period, Keiser kept in contact with many CDC clients and prospective clients by telephone and in person. (Tr. at 32; Keiser Decl. ¶ 29.) Keiser has submitted a chart documenting her time spent working on behalf of CDC. (Keiser Decl. ¶ 30; see also Tr. at 33-36.) Excluding personal time, Keiser spent 524.25 hours during the April-June period working for CDC.*fn3 (Keiser Decl. ¶¶ 30, 32.)

  Before Keiser and CDC ratified the Resignation Agreement, Keiser and Wohlberg agreed that from July 1, 1996, to September 30, 1996, Keiser would be on a severance leave. (Tr. at 31-33; see also AR at 246.) During this period, CDC would consider Keiser a full-time employee receiving full benefits. (Tr. at 31-33; see also AR at 246.) During the Severance Period, CDC paid Keiser's premiums for her continued coverage under the LTD Policy. (AR at 245-46.)

  III. Keiser's Long Term Disability Policy

  As noted above, Keiser was covered under the LTD Policy. (JPTO at 3.) All CDC employees are eligible under the LTD Policy. (AR at 30.) The LTD Policy defines "employee" to mean "a person in active employment with the employer [i.e., CDC]." (AR at 26.) For active employment, the employee must be working:
1. for the employer on a full-time basis and paid regular earnings (temporary or seasonal employees are excluded);
2. at least the minimum number of hours shown in the policy specifications [i.e., thirty hours]; and either
3. at the employer's usual place of business; or
4. at a location to which the employer's business requires the employee to travel. (AR at 26, 29.) An employee ceases to be insured if she is no longer in an eligible class or if her employment terminates. (AR at 14.) There are some exceptions to the termination policy. For example,
[T]he employer may continue the employee's insurance by paying the required premiums, subject to the following:
i. Insurance may be continued for the time shown in the policy specifications for an employee:
a) temporarily laid off; or
b) given leave of absence.
(AR at 14.) The LTD Policy provides that coverage under the exception continues until "the end of the policy month following the policy month in which the [temporary] layoff or leave of absence begins." (AR at 28.)

  With respect to benefits, the LTD Policy provides that when First UNUM receives "proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, [First UNUM] will pay the insured a monthly benefit after the end of the elimination period." (AR at 20.) For coverage, "[t]he injury must occur while the employee is insured and disability must begin within 30 days of the injury." (AR at 25.) The LTD Policy defines "disability" and "disabled" to "mean that because of injury or sickness,"

1. the insured cannot perform each of the material duties of his regular occupation; and
2. after benefits have been paid for 24 months, the insured cannot perform each of the material duties of any gainful occupation for which he is reasonably fitted by training, education or experience.
(AR at 22.)
  The LTD Policy also provides for benefits if an employee is partially disabled: "When proof is received that an insured is partially disabled within 31 days of the end of a period during which [she] received disability benefits, [First UNUM] will pay a monthly benefit. The partial disability must result from the injury or sickness that caused the disability." (AR at 20.) The LTD Policy defines "partial disability" and "partially disabled" as follows:
"[I]njury or sickness [due to which] the insured, while unable to perform all the material duties of his regular occupation on a full-time basis, is:
1. performing at least one of the material duties of his regular occupation or another occupation on a part-time or full-time basis; and
2. earning currently at least 20% less per month than his indexed pre-disability earnings due to that same injury or sickness.
(AR at 22.) "`Indexed pre-disability earnings' means the insured's basic monthly earnings in effect just prior to the date his disability ...

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