Accidental Death
Michael F. Bell
Burke, Williams & Sorensen LLP
Los Angeles, CA
213-236-2821
mbell@bwslaw.com
William M. Demlong, Esq.
Kunz Plitt Hyland & Demlong, P.C.
602-331-4600
wmd@kunzlegal.com
Gary Schuman
Sr. Counsel – Litigation
Combined Insurance Company
Gary.Schuman@combined.com
Richard I. Dreitzer, Esq.
Fox Rothschild, LLP
702-262-6899
Coverage Issues
Causation
Exclusions
What Law Applies?
State Law or ERISA
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Drunk Driving
Drug Overdose
What is an “Accident”?
Everyone seems to know what this event is until
the issue arises in the context of an insurance
claim . . .
“Then it becomes a mysterious phenomenon,
and, in order to resolve the enigma, witnesses
are summoned, experts testify, lawyers argue,
treatises are consulted and even when a
conclave of twelve world-knowledgeable
individuals agree as to whether a certain set of
facts made out an accident, the question may
not yet be settled, and it must be reheard in an
appellate court.”
AD&D insurance provides benefits for an
insured’s loss of life, limb or sight due to an
accident.
The term “accident”, however, is usually not
defined in the policy and court decisions have
resulted in inconsistent and even conflicting
results.
The focus of the courts is on the foreseeability
of the event.
Was the death or injury the natural and probable
consequence of the insured’s conduct?
An “accident” is generally understood as an
unfortunate consequence that befalls an
individual through his inattention, carelessness,
or perhaps for no explicable reason at all.
Individuals sometimes voluntarily subject
themselves to dangers that may result in death
or injury and still be covered under an accident
policy.
The intentional or unnecessary exposure to
risks, as well as the negligent creation of risks
to one’s own safety, does not necessarily
prevent the result from being “accidental”
within the meaning of an accident insurance
policy.
It is only when the consequences of the act are
so natural and probable that it can be said that
the insured, in effect, intended the result and it
was therefore not accidental.
The burden of proving the loss was an
“accident” falls on the insured or beneficiary.
There is a presumption, however, that death or
serious injury by violent means resulted by
accident and not an intentional act, which may
be rebutted by the insurer.
How do courts interpret when event is an
“accident” for insurance coverage?
This issue has been litigated in many different
contexts.
Drinking and Driving – DUI’s
Drug Overdose
Accident/Sickness
Insurer contends death is not accidental
Insured should have foreseen and fully appreciated
the consequences.
Drinking clearly impairs an individual’s ability to
drive.
Insured voluntarily and unneccessarily engages in
conduct displaying a reckless disregard for life.
Beneficiary contends death is accidental
“Accident” is rarely defined in the policy
An ordinary person would consider such a death to be
accidental.
Driving while intoxicated, while dangerous, is not such an act
that an ordinary person would know or expect that death or serious injury will result.
Insured fully intended to arrive at his intended destination.
Statistics prove that only a very small percentage of drunk
Oklahoma - Cranfill v. Aetna Ins. Co.
Single vehicle wreck while driving
Ran off the road, over-corrected and ran off other side of the
road colliding with a sign post
BAC .254%
Parties stipulated the alcohol level resulted in his fatal accident “Accident” not defined – Claim Denied
Split of Authority – federal v. state courts
“We are persuaded by… other state courts which have
overwhelmingly held an insured’s death [caused by drunk driving] is accidental”
Maryland – Consumers Life Insurance Co. v. Smith
Single vehicle crash
Ran off the road, struck a telephone pole and
overturned
Speeding at 60 mph
BAC .20%
California – Smith v. Stonebridge Life Ins. Co.
Accidental death is one where
“the death of the insured was objectively unexpected,
unintended, and happened out of the usual course of
events.”
“Injury or death is likely to be covered unless the
insured virtually intended his injury or death.”
Illinois – Sarac v. Minnesota Life Ins. Co.
Insured attempted to pass a truck, lost control and collided with the rear of the truck’s trailer.BAC .203%
Insurer denied Accidental Death Benefit
Insured was a Forensic Scientist with the Illinois State Police
He should be presumed to know dangers and risks of drunk driving Court held death was accidental
Conduct was voluntary and reckless
Test: Whether the insured “both expected
death or serious bodily injury to occur and that
a reasonable person would regard death or
serious bodily injury to be the natural and
probably consequence from driving drunk.”
Sarac v. Minnesota Life
(N.D. Ill. 2007)
(emphasis added)
Wickman v. Northwestern
(1st Cir. 1990)
Subjective/Objective Test –
Did the insured expect an injury similar in
Wickman v. Northwestern
(1st Cir. 1990)
If he did not, were the suppositions which
underlay that expectation reasonable?
If the suppositions were unreasonable, then
the injuries were not accidental.
The determination should be made from the
perspective of the insured – allowing a great deal of
latitude and considering the insured’s personal
Wickman v. Northwestern
(1st Cir. 1990)
If the court cannot determine the insured’s
subjective expectation or if the court
determines the insured did not expect an
injury similar to type suffered, then the court
should apply an objective analysis of the
insured’s expectations – were they
reasonable.
Wickman v. Northwestern
(1st Cir. 1990)
Ask whether a reasonable person, with
background and characteristics similar to
the insured, would have viewed the injury as
highly likely to occur.
Wickman v. Northwestern
(1st Cir. 1990)
The Court held Wickman knew or should have
known that serious injury or death was
substantially likely to occur.
Either Wickman expected to die or suffer
serious injury or that a reasonable person in his
shoes would have expected the result and any
other expectation would be unreasonable.
Stamp v. Met. Life
(1st Cir. 2008)
The insured’s vehicle left the road and struck a
tree
His blood-alcohol concentration (“BAC”) was
0.265%
Stamp v. Met. Life
(1st Cir. 2008)
“The Wickman analysis does not require a
categorical determination that all
alcohol-related deaths are per se accidental or
nonaccidental. Rather, it leads us to consider
the circumstances of the fatal event in
Stamp v. Met. Life
(1st Cir. 2008)
“In Wickman terms, it is not arbitrary and
capricious to conclude that a reasonable
person would view death or serious injury as a
highly likely outcome of driving while so drunk
that one may need help to stand or walk and is
likely to black out.”
Stamp v. Met. Life
(1st Cir. 2008)
Statistics that many more people drive drunk
than are injured or killed were “meaningless in
this context” because they did not consider the
individual’s level of intoxication.
“Statistical analysis is simply not at the core of
the Wickman analysis.”
Lennon v. Met. Life
(6th Cir. 2007)
Insured “flew down a dry and well-lit divided
boulevard . . . and into a wall.”
Lennon v. Met. Life
(6th Cir. 2007)
Statistics had some “logical force,” but the
court questioned their relevance where the
insured was significantly impaired – “extremely
drunk” – because they do not account for the
degree of intoxication.
Lennon v. Met. Life
(6th Cir. 2007)
“[T]he very number of cases holding [that
drunk driving is not an accidental bodily injury]
supports the conclusion that MetLife’s
determination was not arbitrary and
capricious.”
Kovach v. Zurich
(6th Cir. 2009)
Drunk driving is “ill-advised, dangerous, and
easily avoidable.”
But, an ordinary person would characterize the
collision as an accident, and Zurich presented
no evidence regarding the foreseeability of
Kovach v. Zurich
(6th Cir. 2009)
In fact, statistics show that drunk drivers, as a
group, are far more likely to arrive home safe
than be arrested or injured.
An outright exclusion of such losses is simply
not supported by the statistics.
Kovach v. Zurich
(6th Cir. 2009)
Adopted the Wickman standard of “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.”
Driving under the influence may make a crash
“more likely” to occur but not “highly likely.”
Kovach v. Zurich
(6th Cir. 2009)
Distinguished Lennon:
Lennon’s BAC was well over .30%
Driving at a high rate of speed the wrong
way down a one-way portion of a divided
highway
Kovach v. Zurich
(6th Cir. 2009)
By contrast, the insured here:
“Somewhat impaired”
His conduct was not nearly as dramatic
Not speeding, ran a stop sign (done with
Kovach v. Zurich
(6th Cir. 2009)
Unreasonable to rely solely on case law that
has held DUI’s not to be accidents.
Blanket denial of benefits for such conduct, in
essence, amounts to the creation of an
BAC
Road Conditions
Traffic/Weather Conditions
Mechanical Conditions
Single or Multi-vehicle
Eyewitnesses
□□□□ Natural cause
■■■■ Accidental
□□□□ Suicide
□□□□ Homicide
□□□□ Undetermined
□□□□ Pending
Death
Certificates
ME’s determination is irrelevant.
Clark v. Met Life
(E.D. Va. 2004)
ME’s opinion “not conclusive on
the manner of death.” Brust v.
Mut. of Omaha
(N.Y. 2000)
Death
Affidavit / Statement from Medical
Examiner:
Statutory duty
Not related to any insurance
coverage
Never seen the policy
Death
High BAC still is significant factor.
Must consider insured’s subjective beliefs.
Intent to reach a certain destination
Plans for later that day or the next day
Experienced driver (motorcyclist)
Experienced drinker – can handle his liquor
General approach that all drivers with a BAC over the
What is an Exclusion?
“By including an exclusion, an insurer makes
clear to the insured that any claim that arises
from a particular fact will not be covered by the
contract….”
What is an Exclusion?
“These exclusions are bargained-for
contractual arrangements, and an insured is on
notice before the contract is entered that such
exclusions are not part of the coverage
What is an Exclusion?
“Thus, in contrast to situations where a claim,
by the clear language of the contract, would be
covered…exclusions let the insured know up
front that claims arising from certain facts are
not covered.”
Three primary exclusions may apply to drunk
driving losses
Alcohol Exclusion
Felony/Crime Exclusion
“Status”
Benefits are denied if the insured is
intoxicated, regardless of whether his
intoxication had anything to do with the
cause of his accidental death.
“Causation”
There must be a causal link or connection
between an insured’s intoxication and his
death
More common in policies today
Mandated by a number of state statutes and
Sample –
“No benefits are payable for a loss caused or
contributed to by…[u]se of alcohol,
Sample –
. . . when the blood alcohol level of the
operators of the motor vehicle meets or
exceeds the level at which intoxication would
be presumed under the law of the state where
the accident occurred shall be deemed to be
caused by the use of alcohol.”
Sample –
Coverage is denied “for any loss directly or
indirectly…by your legal intoxication, this
includes, but is not limited to your operation of
a motor vehicle.”
Intoxication alone is insufficient
Must prove a causal connection between
insured’s blood-alcohol level and the injuries
suffered – but not the sole cause
Not necessary to eliminate all other possible
Death must result from the participation in or
attempt to commit a crime or felony.
Causal connection between felony and the loss
suffered.
Applies even if –
No conviction (insured is dead)
No criminal charge filed
Intentionally Self-Inflicted Injury Exclusion
“A loss shall not be a Covered Loss if it is
Insurers argue:
Insured’s voluntary intoxication, together
with the danger inherent in drunk driving,
renders the loss a “self- inflicted injury”.
Insurers argue:
Insured need not intend to die – this
exclusion applies to an injury which is the
natural and probable consequence of an
intentional act.
Insurers argue:
Insured’s intentional decision to drink and
drive renders the subsequent crash
predictable, rather than unexpected or
happening by chance.
Beneficiaries argue:
Insured did not intend his or her own injury
Inherently risky activities do not necessarily
fall within the self- inflicted injury exclusion.
Insured must have known that the risky
Beneficiaries argue:
Insured intended to drive home – statistics
show death or injury is extremely low.
Negligent or even grossly negligent conduct
Court Rationale:
A death that is the natural and probable
consequence of an act or cause of action is
not an accident.
If the injury from the incident is an accident,
then it is not self-inflicted.
Court decisions have been inconsistent
Exclusion applies to unintended deaths that
result from voluntarily engaging in risky
behavior.
Or . . .
Court decisions have been inconsistent
Exclusion does not apply because a driver who
consumes alcohol may intentionally impair his
or her faculties, but it can’t be assumed the
The Proximate or Efficient Cause
The Proximate or Efficient Cause
The Proximate or Efficient Cause
The Proximate or Efficient Cause
The Proximate or Efficient Cause
The Proximate or Efficient Cause
The Proximate or Efficient Cause
The Proximate or Efficient Cause
Rule
Rule
Rule
Rule
Rule
Rule
Rule
Rule
The Predominant Cause Rule
The Predominant Cause Rule
The Predominant Cause Rule
The Predominant Cause Rule
The Predominant Cause Rule
The Predominant Cause Rule
The Predominant Cause Rule
The Predominant Cause Rule
The Substantially Contributed Rule
The Substantially Contributed Rule
The Substantially Contributed Rule
The Substantially Contributed Rule
The Substantially Contributed Rule
The Substantially Contributed Rule
The Substantially Contributed Rule
The Substantially Contributed Rule
exception in a policy, where there is a concurrence
of different causes, the efficient cause — the one
that sets others in motion — is the cause to which
the loss is to be attributed, though the other
causes may follow it, and operate more
immediately in producing the disaster.
“Garvey v.
State Farm Fire & Cas. Co., 48 Cal.3d 395, 402
(1989)
Can you draft around the application of the EPC
Rule?
“for any loss resulting in whole or in part from, or
contributed to by, or as a natural and probable
consequence of any of the following excluded risks
even if the proximate or precipitating cause of the
loss is an accidental bodily injury:
expressly rejected attempts by insurers
to circumvent the EPC rule by artful
In Julian v. Hartford Underwriters Ins. Co., 35
Cal.4th 747 (2005), the court held that the policy
provisions are unenforceable to the extent that
those provisions conflict with or seek to undermine
the efficient proximate cause rule.
“ Reasonable
insureds consider themselves insured against losses
proximately caused by perils covered under a first
party insurance policy, regardless of contrary
language employed in connection with the
excluded perils.
” Id. at 756.
existing infirmity or disease will bar recovery
under an accident policy if the pre-existing
infirmity or disease substantially contributes in
the loss. See also Quesinberry v. Life Ins. Co. of
Am., 987 F.2d 1017, 1028 (4th Cir. 1993); Dixon v.
Life Ins. Co. of N. Am., 389 F.3d 1179, 1184 (11th
Cir. 2004).
For a pre-existing condition or disease to be
considered as a substantially contributing cause,
there must be something more than a mere
relationship of undetermined degree between the
pre-existing medical condition and the loss. Adkins,
supra., 917 F.2d at 797 (quoting Colonial Life & Acc.
Ins. Co. v. Weartz, 636 S.W.2d 891, 894 (Ky. Ct. App.
1982))
1136 (9th Cir. 1996) holding that if the limiting
language is conspicuous, an excluded cause will
bar recovery if it substantially contributes to the
loss — even if the injury was the predominant or
proximate cause of the loss. If, on the other
hand, the limiting language is buried in the fine
print or otherwise deemed to be inconspicuous,
recovery is allowed, notwithstanding a
contributing excluded cause, if the accident was
the predominant [meaning EPC], as opposed to a
remote, cause of the loss.
Accidental Death and Drug
Overdose:
Policy Exclusions Can Be A “Bitter
Pill To Swallow”
As part of treatment, the physician will prescribe medication and
specify drugs, frequency and amount of each dosage.
Insured (for reasons which are usually murky), takes medication
in excess of its prescribed terms and dies. In other scenarios,
the insured takes non-prescribed drugs resulting in death, or a
combination of prescribed and non-prescribed (and/or alcohol)
at the same time, with the same result.
Beneficiary of the AD&D policy then claims that the insured’s
death was, in fact, accidental and, after coverage is denied, will
sue to obtain the proceeds.
death was not“accidental”. These include:
1. The overdose which lead to the death was not an “injury which lead to death within one year of the accident which caused of the injury”
Factual Basis: Though an overdose did occur, the injury was not accidental because the outcome was not unexpected
2. The death, as a result of the overdose, was an “intentionally self-inflicted injury while sane or insane” or was a “suicidal” act
Factual Basis: Though an overdose did occur, the insured
purposefully ingested the medication that ultimately killed him, so it was no accident.
4. The death, as a result of the overdose, occurred while “…under the influence of narcotics, unless administered on the advice of a physician…”
Factual Basis: Though an overdose did occur, it resulted from ingestion of non-prescription drugs, or prescribed drugs not ingested as prescribed (dosage, amount, interaction)
5. The death, as a result of the overdose, occurred “…due to disease, bodily injury or mental infirmity or medical or surgical treatment of these…”
Factual Basis: The insured’s overdose resulted from drugs prescribed to treat a pre-existing ailment or medical condition.
to defeat the Insurer’s policy exclusions:
1. The policy terms are vague and thus any ambiguities that exist must be “construed against their drafter. Policy terms which are commonly argued to be vague include: “Injury”, “Accident /
Accidental”, “Sickness”, “Drugs”, “Use / Usage” and“Intentionally Self-Inflicted”
2. Although a volitional act (the taking of the medication) led to the insured’s death, the consequences of that act (death) were unintended, thereby making the death accidental (i.e., the “means” which resulted in the insured’s death were intended, but the
a. How does the applicable policy define “accidental” death? If definition is vague, can be construed against drafter.
b. Does the Court adhere to the accidental “means” v. accidental “results” distinction? Many courts no longer do. Thus, without clear cut evidence of self-destructive intent, the accident will likely be deemed accidental.
c. Was there a mishap in the course of an otherwise voluntary, deliberate, non-medical action? (i.e., ingesting a non-prescribed controlled substance, etc.)
(1) Was this belief subjectively reasonable?
(2) Was this belief objectively reasonable?
(3) Is there evidence of what the insured knew prior to death? Said prior to death? Did prior to death? Exposure to anti-drug literature? Prior overdoses? Health issues?
f. Has the beneficiary offered an alternative explanation of the cause of the insured’s death?
actions / suicide”? If definition is vague, can be construed against drafter.
b. Is there evidence of self-destructive intent prior to the insured’s death?
(1) Suicidal words, actions?
(2) More pills missing from insured’s prescription than should have been?
(3) Past treatment with mental health professionals?
loss” and/or “independent of all other causes”? If definitions are vague, can be construed against drafter.
b. Were there multiple causes for the death, one of which would be the subject of an exclusion?
a. Would the death have occurred “but for” the medical / surgical treatment? Or sickness?
b. Was loss caused by a “concurrence” between a medical / surgical treatment (or sickness) and an unrelated accident? Did the treatment merely put the insured in a position to “be exposed to the unexpected event”?
c. How does the applicable policy define “medical / surgical treatment” (or similar words / phrases)? If definitions are vague, can be construed against drafter.
prescription and non-prescription drugs?
b. Does the policy create a distinction between prescription drugs taken as directed, and those not taken as directed?
c. Is “intoxication” defined broadly enough within the policy to encompass drugs as well as alcohol?
d. Is “use” defined broadly enough within the
policy to encompass accidental as well as intentional use? If definitions are vague, can be construed against drafter.
f. If there are multiple substances identified in the
decedent post-mortem, were those that were
prescribed taken in their prescribed dosages?
g. Is there a statutory exclusion which is written more
favorably to the insured?
-Deceased was prescribed Verapamil for hypertension and later
broke her arm in a fall. She subsequently died in a rehab center of Verapamil toxicity.
-In evaluating her death, the Coroner couldn’t attribute it to hepatitis / cirrhosis of liver or an overdose of Verapamil.
-The Insurer argued the “Non-Accidental Death” and “Medical / Surgical Treatment” policy exclusions. Under the terms of the policy, benefits are provided for “bodily injury caused by accident” and that “…injury must be direct cause of the loss and
- But, the Court also found that her overdose of prescription meds was an “injury” under policy since it was “unexpected, unintended and unforeseen and was, therefore, accidental under the policy.
- As to the “Medical / Surgical Treatment” policy exclusion, the insurer argued no coverage because the accident would not have happened but for the insured’s illness. The Court rejected this argument.
- Court focused on difference between losses caused by concurrence (i.e., medical condition and accident happening at the same time --not covered), and losses where medical condition put the insured in the position to be exposed to unexpected event (covered.) The Court deemed this case to fall in the latter category.
other causes.)
- Here, the Court found there were two possible causes for injury, so the issue of causation was a question for the jury.
- Insurer also argued “Medical / Surgical Treatment” policy
exclusion. Court found an ambiguity in the policy language to construe against the drafter. The policy excludes from coverage, injuries which are caused or contributed to by sickness. But,
“sickness” is defined in policy as a disease which results in a “covered loss.” So, the policy would purport to exclude
coverage for a covered loss, which makes no sense. Thus, the ambiguity was resolved against insurer and coverage found.
“accidental overdose”
- The insurer argued exclusion language referencing coverage only for “…death result[ing] from accidental bodily injury directly,
independently of all other causes, but policy did not specify what
“accidental” meant, so the Court construed the term liberally in favor of the insured and employed a common definition of “accidental” (i.e., an undesigned, sudden and unexpected event…)
- In analyzing accidental death, the Court examined two schools of thought on these issues: (1) Accidental “means” v. accidental “ends” and (2) Anything unexpected makes the loss “accidental’.
v. Phoenix Ins. Co., 291 U.S. 491: “the attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog…” (mentioned in Milton’s Paradise Lost, refers to “A mess from which there is no way of extricating oneself…”).
- (2) Anything unexpected makes the loss “accidental”. More useful approach – not hypertechnical and more closely mirrors reality.
- In that case, the means were not an issue. The “results” were that the decedent intended to administer the drug, but there is no evidence of “intent to die” so the overdose has to be considered an accident. Court noted that the policy did not specify an exclusion for drug usage, but admonished insurers that if they think that it will deter drug use to impose such an exclusion, they should do so.
-ERISA case. Decedent died from heroin overdose while in Australia.
-Decedent was found with needle marks, sleeves rolled up, evidence of volitional ingestion of heroin, but no evidence of intent to kill himself, merely shoot up.
-Insurer argued the “Non-Accidental Death” exclusion.
-Court determined that the term “accident” was not defined in the policy, and there was no exclusion for use of non-prescribed illegal drugs that cause or contribute to death or injury.
- Objective facts: If the action was intended but result was unintended, the issue becomes whether the suppositions were reasonable that result would not happen at the time insured took the action.
- Court saw no evidence of intent to commit suicide. The Coroner
concluded that the evidence was only that insured was trying to shoot up, not injure himself. Thus, the Court could only infer that insured would not have concluded that use of heroin was likely to cause death or serious injury. Facts are that insured had been a drug addict in the past and built up a tolerance to heroin, which diminished while he was clean. Thus, Court reasoned it would have been easy to overdose if his tolerance had diminished while clean. Hence, death was accidental and exclusion did not apply.
opiate and cocaine intoxication (i.e., a “speedball”.)
-An autopsy later revealed that Cocaine, Morphine and Ethanol were in insured’s system at death.
-Parties agreed that there was no evidence to suggest that death was the result of a suicide.
-Insurer argued suicide exclusion (i.e., no coverage if loss is the result of
“intentionally self-inflicted injuries or suicide, while sane or insane”) since the ingestion of the drugs was the insured’s volitional act.
(1) Did deceased have subjective expectation of survival?
(2) If so, was that expectation objectively reasonable? (i.e., was death substantially certain to occur from insured’s conduct?).
- Here, insured likely expected to survive doing the “speedball” which ultimately killed him. Court concluded that it could have been objectively reasonable for him not to have expected to die in this instance.
- HOWEVER, because of widespread dissemination of information regarding the dangers of drugs, the Court found the idea that insured did not know that
ingestion of heroin, cocaine and ethanol could cause death to be implausible. Therefore, the death was deemed to be the result of an intentionally
- Insured died of accidental death caused by combined effects of mixed drug and alcohol intoxication, which also interacted with his prescribed medications.
- Insurer argued the “Injury exclusion”.
- In reviewing the policy, the Court noted that the term “injury” is defined as a “bodily injury resulting directly from accident and independently of all other causes” Thus, medical, surgical treatment of sickness or disease is not considered to “result from injury.”
insured’s death (i.e., the accident was not independent of medical treatment.)
- Put differently, the death was what the court refered to as
“synergistic”: a mix of medicine at prescribed dosages and alcohol. So, death did not result from accident independent of other medical causes – hence, no coverage.
- Court further concluded that the exclusion is at least plausible where there are facts to suggest some attempt at compliance with a medical regime. Here, insured misused methadone and took it in combination with alcohol, which violates doctor’s orders. Thus, drug exclusion applies more directly.
coverage is excluded for losses sustained from:
- (1) voluntarily taking prescription drugs to be taken as directed by a physician and
- (2) insured being legally intoxicated by alcohol (under state law.)
- Here, the Court focused on the fact that the insured died of near toxic level of Methadone in his system, Diazepam, Venlafaxine and BAC of .107 (i.e., the result of synergistic effects of drugs and alcohol in his system.)
- Yet, even if he accidentally took more than intended, he
contravened doctor’s advice by drinking alcohol so the Court felt that the exclusion applies.
- Thus, because the insured was indisputably intoxicated under state law, this exclusion precludes coverage as well.
- Insured died and had been taking Oxycodone for joint issues prior to her death.
- Cause of death was listed as “Oxycodone toxicity” and referred to the death as an “accident.”
- 17 Oxycodone pills were unaccounted for at the time of her death. Concentration of Oxycodone in insured’s blood was 2.5 times
what was expected – much higher than expected, given her dosage.
- Doctor opined that insured did not take her medication as prescribed.
death was accidental.
- In approaching the issue, the Court examined whether “sickness” exclusion applies,
- Here, the insured’s sickness (i.e., joint issues) was not the cause of her death. Because death was caused by toxicity, not issues which caused pills to be taken, sickness was independent of the cause of death.
- Court examined whether death was “accident” or “suicide”. Burden is on the insurer to provide that exemption is applicable. Though there was evidence of insured being depressed, no evidence that it rose to the level of seeking therapy or medication, or that insured had considered suicide. Insurer did not overcome the presumption against suicide which exists within Kansas law.
- As to “medical treatment” and “prescription drug” exclusions, Court concluded that the “medical treatment” exclusion language was ambiguous and, therefore, had to be construed against its drafter. The ambiguity arose from the fact that the definition of “sickness” could be construed to cover losses resulting from illness or disease, despite contradictory language elsewhere in the policy.
- In keeping with the decisions of courts in other states that have looked at identical policy language from the same insurer and
perceived there to be ambiguity (and the fact that nothing in Kansas law would dictate a different result), Court found there to be an ambiguity and construed the ambiguity against its drafter – the insurer. Thus, the exclusion was not deemed to be a bar to coverage.
the dosage, or just the type of drug. So, the Court construed the ambiguity against the insurer and held that the exclusion did not apply.
perceive to be correct. So, make sure your policies and their exclusions mean what they say.
2. Generally speaking, most courts tend to avoid Milton’s
“Serbonian Bog” and don’t get into hair-splitting discussions of accidental “means” v. accidental “results”. An
unintended outcome, regardless of the means involved, tends to be viewed as accidental.
3. If your facts tend to suggest that the death was suicidal (i.e., self-administered with an expected outcome), most courts will enforce the “suicide” exclusion.
dosages will generally not defeat the exclusion where other non-prescription substances are present along side those prescribed (i.e., alcohol, recreational drugs, etc.)
5 . If a policy exclusion is similar to the language of a statutory exclusion, the Court will generally use the language more favorable to the insured.
Whetsell v. Mutual Life Ins. Co., 669 F.2d 955, 957 (4th Cir. 1982) [Claimant not entitled to additional benefits for death resulting from an infected I.V. needle; although use of infected needle was an accident, it occurred as part of medical treatment];
Pickard v. Transamerica Occidental Life Ins. Co., 663 F.Supp.126, 127 (E.D. Mich. 1987) [Death due to drinking of wrong solution was the type of medically related mishap that exclusion in accidental death benefit policy for loss resulting from medical treatment was intended to cover.]
Litman v. Monumental Life Ins. Co., 289 Ill.App.3d 181, 682 N.E.2d 135, 224 (Ill. App. Ct. 1997) [Holding that a medical treatment exclusion in an accidental death policy barred coverage for the insured's death from a heart attack caused by a feeding tube that, after it was inserted following surgery, shifted, pierced through the superior vena cava and perforated the wall of the heart.]
(1990) [losses caused by nutrition line that disconnected; "[t]he only reasonable interpretation of the exclusionary provision is that it specifically
excludes...accidents caused by or resulting from 'medical or surgical treatment.'"]; Krane v. Aetna Life Ins. Co., 698 F.Supp. 220, 223 (D.Colo.1988) [accidental death and dismemberment policy's exclusion for “medical or surgical treatment”
precluded coverage for death attributable to surgical treatment];
Miller v. Hartford Life Ins. Co., 348 F.Supp.2d 815 (E.D. Mich. 2004) [coverage for death of insured from surgical complication, namely peritonitis, precluded by medical or surgical treatment exclusion];
Brooks v. J.C. Penny Life Ins. Co., 231 F.Supp.2d 1136 (N.D. Ala. 2002) [Insured's death as a result of an anaphylactic reaction to the dye administered to him in order to facilitate his CT scan procedure was excluded from coverage by policy exclusion for loss resulting from medical or surgical treatment.]
• Senkier v. Hartford Life & Accident Ins. Co., 948 F.2d 1050 (7th Cir. 1994), the Seventh Circuit held that a medical mishap, whether or not caused by negligence, is not an accident within the meaning of the ERISA plan.
• Thomas v. AIG Life Ins. Co., 244 F.3d 368 (5th Cir. 2001), the Fifth Circuit held that a death resulting from complications following a stomach
stapling surgery was not "caused by accident" under an ERISA-governed insurance policy.
• Larkin v. Life Ins. Co. of N. Am., 2004 U.S. Dist. LEXIS 28844 (N.D. Ala. 2004) [holding that insured's vision loss resulted from a common post-operative complication, nausea, following surgical treatment to correct a detached retina and, therefore, the insured's vision loss was not caused by an accident
• But, in some jurisdictions, a medical mishap resulting from malpractice may well be an accident.
Sudden loss of oxygen to the brain causes an
increase accumulation of carbon dioxide.
This can increase the feelings of giddiness,
lightheadedness and pleasure.
Induces a lucid, semi-hallucinogenic state called
hypoxia.
Which, in theory, heighten sensations during
masturbation.
Suffocating with a Plastic Bag
Self-strangulation
Inhaling aerosol propellants or chemical
vapors
Loss of consciousness . . . leads to
Continued asphyxia . . . resulting in
-
Equipment Malfunction
-
Errors in Placement of Noose
Suicide (rarely used)
Intentional Self-Inflicted Injury
Parties generally agree to underlying facts
Most acknowledge the decedent engaged in
particularly risky activity
Particular contract provisions
Standard of Review
De novo
expectation of survival, and
2)
If the insured subjectively expected to survive,
that such expectation was objectively
reasonable, which it is if death is not
substantially likely to result from the insured’s
conduct.
Wickman v. Northwestern Nat'l Ins. Co., 908 F.3d 1077 (1st Cir. 1990); Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1126 (9th Cir. 2001); Eckelberry v. Reliastar Life Ins. Co., 469 F.3d 340 (4th Cir. 2006); Lennon v. Metropolitan Life Ins. Co., 504 F.3d 617 (6th Cir. 2007)
Equipment had a mechanism for escape
Not the first time doing this
No indications of self-injurious motives
No mechanism for escape
No evidence decedent had performed
the act in the past (no sophisticated
equipment)
Absent of orgasm suggest self-injurious
motive
created a reasonable foreseeable risk of death.
And insured expected to survive, he clearly put himself in a position that risks death’s irreversible grasp.
An occurrence is not accidental if it results from a foreseen risk purposefully brought about.
Accidental death insurance policies are not underwritten to reward willful deviancies that risk the practitioner’s own life.
Longergan v. Reliance Std. Life Ins. Co., 1997 WL 3406253 (D. Mass. 1997).
5th Circuit: While the prolonged oxygen deprivation was
accidental, his injuries were not; thus, death not solely caused by independent accidental means as required under the policy. Estate of Thompson v. Sun Life Assur. Co. of Canada, 603 F.Supp.2d 898 (N.D.Tex. 2008) aff’d on other grounds, 2009 WL 4016442 (5th Cir. 2009)
