Courts see more accidental death claims

May 23, 2012
By Mark D. DeBofsky — mdebofsky@ddbchicago.com

Mark D. DeBofsky is a name partner of Daley, DeBofsky & Bryant. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage .

In addition to disability insurance claims, accidental death claims are the frequent subject of Employee Retirement Income Security Act (ERISA) litigation. One recent ruling was cited by the website, Above the Law, as "A Self-Abuse of Discretion? (Or: The most interesting ERISA opinion ever.)" — abovethelaw.com/?s=self-abuse.

In Martin v. Hartford Life and Acc.Ins.Co., 2012 U.S.App.LEXIS 7879 (2nd Cir. April 19, 2012)(unpublished), the court was called upon to decide a claim for accidental death benefits arising under an employer-sponsored benefit plan. The claim involved a death due to electrocution that occurred in the course of autoerotic activity. Hartford denied benefits based on a policy exclusion precluding claims for an "intentionally self-inflicted injury." Despite the application of a deferential standard of review, the court of appeals overturned Hartford's denial, which maintained the decedent, Paul Martin, intended to injure himself when he electrically shocked himself. However, that rationale was offered after the insurer's initial grounds for denying benefits were repudiated. Hartford originally maintained that Martin's death occurred "while participating in an autoerotic activity, which was a deliberate act on his part," even though he had performed the same act previously without suffering harm. The court concluded that interpreting the policy exclusion for "intentionally self-inflicted injury" to eliminate even negligently self-inflicted injury constitutes an abuse of discretion.

Tragically, there have been many reported decisions in recent years involving accidental death benefit claim denials under plans governed by ERISA — with mixed results. A startling number of cases have similarly involved autoerotic activities, but most have dealt with the issue of drunken driving deaths. One of the leading cases remains Wickman v. Northwestern Natl. Ins.Co., 908 F.2d 1077, 1088 (1st Cir. 1990), which espoused the principle that the court looks to "whether a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured's intentional conduct." Other courts have looked at dictionary definitions of "accidental": a: occurring unexpectedly or by chance, b: happening without intent or through carelessness and often with unfortunate results." merriam-webster.com/dictionary/accidental. But even in the 1st U.S. Circuit Court of Appeals, the Wickman analysis, which focuses on the insured's expectations, has been deemed inapplicable in a case adjudicated under the arbitrary and capricious standard of review since the dangers of driving while intoxicated are so well known. See, Stamp v. Metro.Life Ins.Co., 531 F.3d 84 (1st Cir. 2008), citing Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 340, 343-45 (4th Cir. 2006); Lennon v. Metro. Life Ins. Co., 504 F.3d 617, 622-23 (6th Cir. 2007); and Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104, 1110 (7th Cir. 1998), along with a number of district court cases.

However, cases involving autoerotic activities have more often favored the plaintiffs. See, e.g., Padfield v. AIG Life Insurance Co., 290 F.3d 1121, 1127-28 (9th Cir. 2002); Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d 246, 257 (2d Cir. 2004). Both Padfield and Critchlow applied a subjective/objective analysis that asks "first, whether [the decedent] subjectively lacked an expectation of death or injury and second, if so, whether the suppositions that underlay that expectation were reasonable from [the decedent's] perspective, taking into account, inter alia, his own personal characteristics and experiences." 378 F.3d at 259. Those cases were adjudicated under a de novo standard of court review, though, and cases applying the arbitrary and capricious standard have tended to favor the insurers, thus highlighting the outcome-determinative nature of the deferential standard of court review under ERISA. See, Clarke v. Federal Ins.Co., 2011 U.S.Dist.LEXIS 116206 (W.D.Okla. Oct. 7, 2011). And further demonstrating the importance of which standard of review applies, in Jessen v. CIGNA Group Ins., 812 F.Supp.2d 805 (E.D.Mich. 2011), a decedent who died of a heroin overdose was awarded accidental death benefits under the de novo standard of adjudication after the court ruled that while death is a foreseeable consequence of using illicit drugs, there was no intent to die and no objective knowledge that death was likely to occur as a result of the drug use.