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Is Death Resulting from Autoerotic Asphyxiation "Accidental"?

Anecdotally, the most litigated accidental death insurance claims involve drunk driving. The next most prevalent type of litigated accidental death claim are cases involving autoerotic asphyxiation. The recent ruling in Tran v. Minnesota Life Ins. Co., 2018 WL 1156326 (N.D. Ill. March 5, 2018) was one such case.

The plaintiff was the widow of an individual who hung himself while engaging in an act of autoerotic asphyxiation. Although the police were called to the decedent's home "for suicide by hanging," the medical examiner determined the cause of death was "[a]sphyxia due to hanging, autoerotic in nature" and further deemed the manner of death was an "accident." The defendant's consulting physician also concluded that the decedent's death was due to autoerotic asphyxiation; however, the claim for accidental death insurance was denied on the ground that it fell within an exception in the policy for "suicide or attempted suicide or other self-inflicted injures." The insurer deemed the death the result of a self-inflicted injury and therefore excluded. The denial was upheld following the plaintiff's appeal. The court reversed

The court was guided by Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) in relation to what is meant by an "intentionally inflicted injury." There, the plaintiff died after ingesting a lethal amount of the pain reliever propoxyphene (Darvocet). An autopsy showed the plaintiff may have suffered a seizure two months before her death; and the district court concluded from that finding that "a reasonable person in [the insured's] situation would have considered her seizure a serious physical injury and, in making the decision to take the drugs, would have assumed that the seizure was causally related to the use of drugs and further would have assumed that taking the dosage created the probability of death or serious injury." The court of appeals disagreed and interpreted the meaning of "accidental" in the "ordinary and popular sense" to mean "unexpected or unintentional." Santaella, 123 F.3d at 462. The court added that it is necessary to look to the subjective expectations of the insured from the viewpoint of an objective reasonable person standard. Thus, the Seventh Circuit concluded,

[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.

Id. at 463 (quoting Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1456 (5th Cir. 1995)).

Utilizing that standard, the court of appeals held that the decedent's ingestion of the propoxyphene was not a "purposeful infliction of injury on herself," because "nothing in the record indicate[d] that she intended to take an overdose or that she intended to inflict injury on herself," or that she "knew or should have known that she had a damaged spleen and lymph glands or that the seizure she suffered might be related to an abuse of drugs." Id. "Without some evidence that she was aware of the risk of serious injury or death," the Court explained, "we must conclude that [the insurer] did not die from an intentionally self-inflicted injury and thus that the exclusion did not bar her claim." Id.

Santaella was followed by the Ninth Circuit in an autoerotic asphyxiation case in Padfield v. AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2001), which rejected the insurer's invocation of an "intentionally self-inflicted injury" exclusion to a death resulting from autoerotic asphyxiation. Id. at 1124. There, the court of appeals concluded that "if all had gone as the insured planned, 'he would have experienced a temporal deprivation of oxygen, a euphoric light-headedness from the exposure to the industrial solvent, and an intensified sexual experience.'" Id. "His oxygen level would then have been restored, his euphoric state would have subsided, and he would have returned home uninjured." Id. Since none of those intended occurrences were "injuries," the Ninth Circuit held that the injuries that the insured suffered as a result of his plans going awry-the necktie tightening and injuring the tissue of his neck and leaving a visible mark, his blood flow being cut off for a sustained period, and his death from a lack of oxygen-were not 'intentionally self-inflicted,' because the evidence showed that the insured had no subjective intent to cause them." Id. Finally, Padfield determined that "the suppositions underlying [the insured's] subjective intent were objectively reasonable," because "[a] reasonable person with background and characteristics similar to [the insured's] would not have viewed the strangulation injury that resulted in his death as 'substantially certain' to result from his conduct." Id. (quoting Todd, 47 F.3d at 1456). The court added that the insured, "having performed the act in the past without inflicting any injury, had a reasonable expectation that he would be able to do so again," and therefore " 'did not die from an intentionally self-inflicted injury' " but instead "made a 'fatal mistake.' " Id. (quoting Santaella, 123 F.3d at 465).

The court also cited Critchlow v. First Unum Life Ins. Co. of America, 378 F.3d 246 (2d Cir. 2004), which involved the same issues. The court focused on the insured's reasonable expectation of survival, and the Second Circuit held that the self-inflicted injury exclusion did not apply, rejecting the insurer's argument that "partial strangulation is an injury in and of itself." Id. The court also cited "well-accepted medical and scientific views that the physiological effects of partial strangulation without loss of consciousness-absent an accident-are a temporary lightheadedness and euphoria with no serious or lasting adverse impact on one's health, and that autoerotic asphyxiation is not likely to result in death." Id.

Although the defendant cited four district court decisions upholding the self-inflicted injury exclusion in cases involving autoerotic asphyxiation, the court deemed those cases distinguishable or arising under the arbitrary and capricious standard of review. The court summed up its thoughts by observing:

Attempting to "partially" strangle oneself might, of course, seem like a bad idea to the ordinary person. But just because an activity is risky does not necessarily mean that it is injurious. As the split in case law in the context of autoerotic asphyxiation shows, it is difficult to say where the line should be drawn. Take, for instance, a swimmer who challenges himself to swim underwater for longer and longer periods, and ends up holding his breath too long, blacking out, and dying. Was the swimmer injuring himself intentionally by holding his breath, since that temporarily deprived his brain of oxygen? Defendant analogizes Llenos' death to a person shooting himself in the foot (an intentional injury), passing out from the pain, and dying of blood loss: although the death was accidental, the injury was intentional. But reasonable minds most likely would agree that a gunshot wound is an injury, whereas they may disagree about whether reducing oxygen to the brain for a few seconds is an injury. This is not to say that an injury must be permanent in order to constitute an injury. But reasonable minds could find some bodily harms to be too temporary or minor to be considered injuries.

The court then turned to the question of whether the death was "unexpected and unforeseen." The court concluded "that a reasonable person could treat the two terms interchangeably, such that an injury is unexpected and unforeseen unless it is substantially certain to result from the insured's conduct." Since the decedent had no expectation of death, and because even the defendant agreed that death was accidental, the court ruled for the plaintiff and granted summary judgment.

The Above the Law blog published an article about a different autoerotic death (by electrocution) on April 19, 2012 (http://abovethelaw.com/2012/04/a-self-abuse-of-discretion-or-the-most-interesting-erisa-opinion-ever-em/) titled, "A Self-Abuse of Discretion? (Or: The most interesting ERISA opinion ever"). The article involved the unpublished Second Circuit ruling in Martin v. Hartford Life and Accident Insurance Company, 498 Fed.App'x 695 (2d Cir. 2012), which did not raise the intentional self-injury exclusion until litigation and thus triggered a remand. However, the court reminded the matter to the insurer in light of its Critchlow decision.

Obviously, the activity involved is highly dangerous and does pose a risk of death; however, many activities people perform are risky - skydiving, bungee jumping, scuba diving, and motorcycle riding; and the list goes on. However, most people perform such activities with the expectation of survival due to safety precautions. Given the objectively reasonable subjective expectation of survival, without a specific exclusion, such as those which have recently been incorporated in accidental death insurance policies, for drunk driving or drug overdoses, the ruling here was consistent with other rulings on the subject and was obviously correct.

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