The opinion of the court was delivered by: HOLDERMAN
JAMES F. HOLDERMAN, District Judge:
Plaintiff Mark Infantino alleged in his complaint that defendants Waste Management and UNUM Life Insurance wrongfully terminated plaintiff's disability payments in violation of 29 U.S.C. § 1002 et seq. Defendants have filed for summary judgment. Additionally, both parties have filed motions to strike certain filings presented by opposing counsel during the briefing of defendants' motion for summary judgment. Defendants have moved to strike plaintiff's surreply regarding his Rule 12(N) statement of facts. Plaintiff has moved to strike defendants' supplemental Rule 12(M) statement and has moved to strike defendants' objections to plaintiff's Rule 12(N) statement. As to these motions to strike, plaintiff's motion to strike defendants' objections to the Rule 12(N) statement is denied, plaintiff's motion to strike defendants' supplemental Rule 12(M) statement is granted, and defendants' motion to strike plaintiff's surreply regarding plaintiff's 12(N) statement is granted. Upon evaluation of the appropriate materials and for the reasons stated herein, defendants' motion for summary judgment is granted.
Plaintiff, now 41 years old, suffered a serious back injury in July 1989 when he was 33 years of age. At that time plaintiff worked as the maintenance manager for the trucking fleet at Waste Management, supervising 19 people at a salary of $ 53,100. Plaintiff had held that management position since 1983, and before that plaintiff had spent ten years as a mechanic fixing refuse trucks. Plaintiff has not graduated from high school.
Plaintiff's back injury left him unable to continue his job because the job often required heavy mechanical duties to assist other workers. Plaintiff ceased performing any work for Waste Management and received disability payments pursuant to an insurance policy with UNUM (Exhibit 1 to Affidavit of Donald Jensen, hereinafter cited as "Disability Plan"). The Disability Plan stated, "When the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit...." Disability Plan at 13. The Plan defined "disabled" as follows: "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." Disability Plan at 11. The Plan also had the following definition for "partial disability":
"because of injury or sickness the insured, while unable to perform all the material duties of his regular occupation on a full-time basis, is:
1. performing ... another occupation on a part-time or full-time basis; and
2. earning currently 20% less per month than his indexed pre-disability earnings due to that same injury or sickness." Disability Plan at 11.
Benefits under partial disability were reduced from full disability payments by the percentage that current income fell below pre-injury income, i.e. an employee making 50% of his previous salary received 50% of his full disability payment.
Plaintiff then suffered a relapse of his back injury and was hospitalized from August 10 through August 18, 1993. On September 8, 1993, after reviewing plaintiff's medical condition and new injury, UNUM reaffirmed its decision to deny benefits after concluding that plaintiff's condition had not significantly changed. Plaintiff's physician, Dr. Irwin Carson, wrote a letter to UNUM on September 20, 1993, that stated:
"I am very much in favor of having Mark get back to some job where he can be gainfully employed; however, because of his ongoing condition, it is questionable as to whether this will ever occur.
As I wrote to you in June of 1993, I indicated that it would be beneficial for Mark to return to some type of gainful employment....The job will have to be individualized and only after a trial basis could he be okayed to return on a permanent basis." (Exhibit 15 ...