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Is death resulting from autoerotic asphyxiation a self-inflicted injury?

Is death resulting from autoerotic asphyxiation gone wrong an accident or is coverage under an accidental death insurance policy precluded by the policy's "self-inflicted injury" exclusion. A recent appellate court ruling overturned a lower court's determination that the language of the exclusion is ambiguous and therefore had to be resolved in favor of the insured under the doctrine of contra proferentem. In Tran v. Minnesota Life Ins. Co., 2019 WL 1894769 (7th Cir. April 29, 2019), the insurer denied benefits, claiming the insured's unintended self-strangulation was an "intentionally self-inflicted injury," an exclusion under the policy. The court of appeals, disagreeing with the lower court and with rulings from the Second and Ninth Circuits on this issue, reversed the district court's decision holding that a reasonable person would interpret [the decedent's] cause of death, autoerotic asphyxiation, to be an "intentionally self-inflicted injury."

The death occurred in 2016 and the evidence showed that the decedent had performed the act previously without mishap and had taken precautions to prevent strangulation, which failed. Applying the de novo standard of court review, which requires ambiguous terms in an insurance policy to be construed against the insurer (Santaella v. Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)), the court nonetheless determined that a) autoerotic asphyxiation was an "injury" and b) that the injury was self-inflicted.

The meaning of the term "injury" was derived by the district court from three cases: Santaellia, which involved a drug overdose from a prescribed medication, and Padfield v. AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002); and Critchlow v. First Unum Life Ins., America, 378 F.3d 246 (2nd Cir. 2004), which both involved autoerotic asphyxiation. The Seventh Circuit rejected Santaella's applicability because it determined there was no injury. With respect to the other rulings, the court deemed them based "on a false premise: that the act of strangling oneself is severable into distinct phases and distinct injuries." Padfield determined that the decedent did not due from the autoerotic asphyxiation but from the continued asphyxiation that occurred after the euphoric effect was achieved. Critchlow applied a similar analysis. The court explained: "We reject such reasoning because it artificially separates one continuous act into two or more parts." The court continued: "For both men, there was no intervening cause, and no break in the chain of causation: one act of autoerotic asphyxiation caused the hypoxia that killed them." The court deemed the facts of this case identical.

The court went even further to find that even the partial strangulation still constituted an injury, citing a state court ruling, MAMSI Life & Health Ins. Co. v. Callaway, 825 A.2d 995, 1007 (Md. 2003) ("We conclude that a layperson would understand partial strangulation to be an injury as that term is commonly used."). The court also cited criminal law, which deems a partial strangulation of another person a criminal offense. Finding no distinction here, the court explained that even though the decedent "performed the act on himself and enjoyed the accompanying euphoria [that] does not make partial strangulation less of an injury." The court also looked to non-suicidal self-injury such as "cutting." The court observed,

The individual has still suffered an injury, regardless of the desired side effects. Autoerotic asphyxiation is no different. See Callaway, 825 A.2d at 1007 (Md. 2003) ("That the injured party also derived pleasure from the self-inflicted injury [of autoerotic asphyxiation] does not mean there was no injury.").

The court also found the incidence of autoerotic asphyxiation and the assumption that no one would do it if it were deemed injurious irrelevant and compared the practice to the Diagnostic and Statistical Manual of Mental Disorders inclusion of sexual masochistic disorders, which deems autoerotic asphyxiation a subset of that condition. The court remarked, "Some people enjoy harming themselves. That harm is still an injury, regardless of its popularity or the pleasure some people may derive from it." Thus, the court concluded, "the act of autoerotic asphyxiation was the 'injury' that killed Llenos [the decedent]".

The rest of the opinion, which determined the "injury" was "intentionally self-inflicted," was straightforward. The court maintained it was following the subjective/objective test adopted in Santaella and concluded the objective step in the analysis need not be reached because the subjective intent was clear - the decedent intentionally performed autoerotic asphyxiation. Consequently, since the court already found that conduct to be injurious, the death fell within the policy exclusion for intentionally self-inflicted injuries.

The opinion claimed that it was not in conflict with Santaella because there was no evidence the decedent intended to injury herself by taking a prescription painkiller. The court distinguished that conduct from what occurred in this case because the decedent intentionally strangled himself to experience hypoxia-induced euphoria. The court concluded by remarking that the opinion was not intended to create a per se rule to exclude autoerotic asphyxiation from coverage and that policy language and factual circumstances leading to death can vary.

Judge William Bauer authored a powerful dissent based on the premise that "reasonable people could conclude that [ ] death was an accident" and because policy ambiguities must be construed in favor of coverage. The dissent also maintained that the district court's determination that the policy terms were ambiguous should have been subjected to the clear error standard of review - '[A] finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Madden v. United States Dep't of Veterans Affairs, 873 F.3d 971, 973 (7th Cir. 2017) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

The dissent further commented:

The majority cleaves the act into two separate actions: (1) the act of masturbation, and (2) the act of self-strangulation. This confuses the analysis; it erroneously divides one global process into two distinct acts and the majority focuses solely on the strangulation aspect while ignoring the contemporaneous masturbatory act. So, the question should be: could reasonably intelligent people conclude autoerotic asphyxiation is not intentionally injurious behavior? I believe they can.

Disagreeing with the majority, the dissent deemed Santaella both instructive and controlling. That ruling adopted the Fifth Circuit's analysis to determine whether a death is accidental under an accidental death policy, which looks a "(1) [whether] the deceased had a subjective expectation of survival, and (2) [whether] such expectation was objectively reasonable which it is if death is not substantially certain to result from the insured's conduct." Santaella, 123 F.3d at 463 (quoting Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1456 (5th Cir. 1995)). That analysis reframes the issue to ask "did the practitioner reasonably expect not to injure himself and was that expectation objectively reasonable."

The dissent looked at the evidence, which showed that Llenos took prophylactic measures to prevent injury; and there was also evidence suggesting he had previously engaged in autoerotic asphyxiation without incident. Thus, the dissent concluded there was a subjective expectation of survival. Turning to the question of whether the expectation was objectively reasonable; i.e., "the objectively reasonable person would have to expect that the injury was the likely outcome from the act. See Santaella, 123 F.3d at 462 (quoting Wickman v. Nw. Nat. Ins. Co., 908 F.2d 1077, 1088 (1st Cir. 1990)); see also Med. Protective Co. of Fort Wayne, Indiana v. Am. Int'l Specialty Lines Ins. Co., 911 F.3d 438, 449 (7th Cir. 2018), reh'g denied (Jan. 29, 2019) (briefly discussing substantial certainty in the known loss context as "virtually inevitable")." Hence, "[i] f it were objectively reasonable to conclude that an injury, as commonly understood, was the likely result of autoerotic asphyxiation there would be few if any repeat practitioners. Moreover, autoerotic asphyxiation has permeated popular culture and has become a commonplace punchline." The court thus concluded, "Because Llenos had a subjective expectation of escaping unscathed and the objectively reasonable person would not think an injury was a substantial certainty, his death should not be deemed the result of an intentional injury. Therefore, the Rider's exclusion would not apply." The court acknowledged, "Llenos' conduct was undoubtedly risky but was not inherently injurious. The determination that autoerotic asphyxiation is an injury ignores that fact that when done correctly it can and does have a recreational purpose with no lasting health consequences."

The dissent also looked at activities such as skydiving or bungee jumping where the act of jumping was intentional, "[b] ut, the subjective and objective intent was to survive." Judge Bauer disagreed with the majority's conclusion that "any amount of asphyxiation is injurious" and agreed with the district court's finding that "reasonable minds could differ on whether the term 'injury' as used in the [Rider] includes Llenos' induction of cerebral hypoxia under the facts of this case."

The dissent blamed the insurance company for not drafting a policy with a clearer exclusion. Indeed, the court cited examples of policies with exclusions for activities such as hang-gliding, bungee jumping, automobile racing, rock climbing or mountain climbing. Without such an exclusion, the court should have concluded that the death was accidental.

Discussion: The majority opinion in this case is puzzling and it is unclear why the court would have chosen to reach a conclusion that conflicted with opinions on the same subject issued by the Second and Ninth Circuits. The analysis in Santaella should have also directed an affirmance of the district court. Although the facts are somewhat different, the insured intentionally ingested an injurious substance and died as a result. Scientists say that consuming ethanol causes microscopic injury with every drink. If someone goes to a restaurant and drinks wine with dinner and is later involved in a fatal car accident on the way home from dinner, would such a death be due to an intentionally self-inflicted injury?

Several courts of appeals have found that not to be the case. In McClelland v. Life Ins.Co. of North America, 679 F.3d 755 (8th Cir. 2012), an insured who died in motorcycle accident which occurred while the insured was intoxicated was found entitled to recover under accidental death insurance policy. Also see, King v. Hartford Life & Acc. Ins. Co., 414 F.3d 994 (8th Cir. 2005) (same). Similarly, in Nichols v. Unicare Life and Health Ins. Co., 739 F.3d 1176 (8th Cir. 2014), the same court ruled in favor of the plaintiff on an accidental death insurance claim that occurred in a situation where the cause of death was mixed drug intoxication. The autopsy found the presence of several prescription drugs in the decedent's blood stream which had been prescribed for back pain. The accidental death insurer initially denied the claim because the manner of death was undetermined. However, when the beneficiary appealed that decision, the insurer added a second basis for denying benefits - an exclusion for death caused by intoxication. The court rejected that assertion, finding that under the doctrine of "reasonable expectations," a reasonable insured would not have viewed the exclusion as being applicable to the "ingestion of a lethal mixture of drugs."

The majority misstated the subjective/objective analysis from prior Circuit precedent and the seminal Wickman case from the First Circuit. The question is not whether the insured deliberately engaged in potentially injurious behavior. Instead, the issue is whether the insured had a subjective intent of survival and whether that subjective intent was objectively reasonable. Most people would reasonably assume that no injury took place here until the moment of death. Given that reasonable minds can differ as to whether the act of performing autoerotic asphyxiation or skydiving or even death resulting from hypothermia while participating in a "polar plunge" charitable event is a self-inflicted injury, the doctrine of contra proferentem should have led to a finding in favor of the plaintiff.

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