That question was answered in the affirmative in Yasko v. Reliance Standard Life Ins.Co., 2014 U.S.Dist.LEXIS 88469 (N.D.Ill. June 30, 2014), a case involving accidental death insurance that was litigated by DeBofsky, Sherman & Casciari.  See, /DeBofsky-Associates-Receives-Favorable-Ruling-in-Accidental-Death-Insurance-Case.shtml.  Alan Yasko, a physician, died of a pulmonary embolism shortly after flying from Chicago to a medical conference in Mexico after a brief stopover in Houston.  Following his death, a claim was submitted to Reliance Standard Life Insurance Company for accidental death insurance; however, Reliance denied that Dr. Yasko’s death was accidental and also claimed that prior medical treatment was a contributing cause of death.  The court rejected both claims.

First, the court ruled that whether Dr. Yasko’s death was considered accidental depended on the following definition developed by the courts:

[F]or death under an accidental death policy to be deemed an accident, it must be determined (1) that the deceased had a subjective expectation of survival, and (2) that such expectation was objectively reasonable, which it is if death is not substantially certain to result from the insured’s conduct.

The court ruled that Dr. Yasko would neither have subjectively or objectively expected to die as a result of air travel.  The court also pointed to a provision of the policy providing for “Coverage of Exposure and Disappearance,” which states that “[a]ny loss that is due to exposure will be covered as if it were due to Injury, provided such loss results directly and independently of all other causes from accidental exposure to the elements ….” The court found that death from a pulmonary embolism after flying at high altitude was no different than death from hypothermia after exposure to cold temperatures or death from heat stroke after exposure to high temperatures.  Thus, coverage for any such exposure was required by the terms of the policy since there was no specific exclusion for pulmonary embolism following air travel.

The court also decided that the policy was ambiguous as to what constitutes an accident.  Thus, under the doctrine of contra proferentem, the ambiguity, which could have been avoided with clearly drafted language, required that the contract be construed in favor of the insured.

Finally, the court found that there was no definitive proof that any other medical condition was a cause of Dr. Yasko’s death.  Although Dr. Yasko may have had risk factors, the court observed, “evidence that something is a risk factor does not mean that it caused a medical event. Risk implies, at most, correlation, not causation.” (evidence in original).

There has been a significant amount of recent litigation relating to accidental death insurance policies.  Most of the cases have involved alcohol-related driving deaths, but all of the rulings (most of which have favored the insured) share a common characteristic.  The policies provide indemnity strictly for accidental deaths, yet almost none of the policies define the terms “accident” or “accidental.” Thus, it is grossly unfair for insurers to try to rewrite their policies after a loss has occurred in order to exclude liability.  Certainly, no insurance company will write coverage for a burned structure after a fire has occurred.  Why would insurers think the courts would bail them out when their policies ostensibly cover the claimed loss? Fortunately, in a comprehensive analysis of all of the issues presented, Judge John Tharp of the U.S. District Court for the Northern District of Illinois placed the burden of proof where it belonged and properly determined that Reliance Standard was not entitled to judgment in its favor.

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