Posted on 08/20/2004 3:20:57 PM PDT by Ironclad
ABA Journal Report
Friday, August 20, 2004
INSURANCE COVERS AUTOEROTIC DEATH, COURT SAYS 2nd Circuit Panel Vacates Earlier Decision, Orders Benefits in Asphyxiation
BY STEPHANIE FRANCIS WARD
Rock climbing and skydiving can be dangerous, yet death from those activities is often covered by life insurance policies. Considering that, a case of death from the practice of autoerotic asphyxiation should also be covered, says the New York City-based 2nd U.S. Circuit Court of Appeals.
The decedent in the 2nd Circuit case was insured by an accidental death policy provided by his employer. First Unum Life Insurance Co. of America had denied benefits on the basis that the man’s injuries, caused by his use of suffocating devices to enhance arousal, were intentionally self-inflicted. The policy did not cover such injuries, the company contended.
A three-judge panel on Aug. 9 vacated its own earlier decision for Unum and granted summary judgment to the policy beneficiary. Both panel opinions were 2-1. Judge Amalya L. Kearse, who wrote the dissent to the first opinion, had asked the court for an en banc poll to rehear the case. While that was pending, Judge Barrington D. Parker changed his earlier vote.
The Aug. 9 majority noted that the insurance was an employee benefit governed by the Employee Retirement Income Security Act and said ambiguities under ERISA-covered policies should be construed against the insurer.
The majority cited three facts to support its conclusion that the man’s 1999 death was not intentional. First, the insured, who was 32 when he died, had tied his ropes to a set of counterweights, which appeared to be an escape device. Second, the man had engaged in the practice for at least 20 years without serious injury. Third, groceries were set out in his kitchen in preparation for dinner.
The "effect sought by the practice of autoerotic asphyxiation is a temporary effect that, absent an accident, is not injurious; and injuries resulting from the practice are unintended," Kearse wrote for the Aug. 9 majority. "We thus see no differences between engaging in autoerotic asphyxiation and engaging in hazardous extreme sports activities, insofar as the coverage provided by the Unum policy is concerned." Critchlow v. First Unum Life Insurance Co. of America, No. 02-7585.
Judge Ellsworth VanGraafeiland wrote the dissent in the second decision. His position from the first ruling was unchanged.
"Moreover, until someone whose opinion I respect honestly informs me that as a general proposition, he or she would not hesitate to undergo a session of autoerotic asphyxiation through strangulation, I will not change my mind," he wrote.
The opinion was somewhat of a surprise for Irving Pheterson and Christopher J. Calabrese, Rochester, N.Y., lawyers who represented the policyholder’s mother. After the original ruling, their client did not intend to ask the court for an en banc appeal, and the lawyers were unaware of Kearse’s actions. Paul K. Stecker, a Buffalo lawyer who represents First Unum, would not comment on the case.
Timothy Wilson Burns, who co-chairs the insurance coverage litigation committee of the ABA’s Litigation Section, says the 2nd Circuit finding is not unique.
"It isn’t unusual for a court to define ‘sudden’ as meaning ‘unexpected,’ and in fact that’s quite consistent with how courts have been defining the context of general liability policies." However, the Chicago lawyer says, he would be surprised if many courts considered a sudden death policy in this context.
Calabrese doubts insurance companies will specifically exclude death benefits for autoerotic asphyxiation victims because the percentage of cases is small. Also, defining dangerous activities can be difficult.
"You don’t have exceptions for sky diving [or] polar bear clubs, which we classify as dangerous activities," he adds. "If you exclude things like that, you get into an area of what’s dangerous and what isn’t, and that leads to lawsuits."
About damn time!
I don't know how many times I was considering autoerotic asphyxiation, only to chicken out because of the insurance implications.
Looking at the gif, that's going to be KERRY in a few weeks when Hillary replaces him. At the rate he's going, he won't make it to the middle of September.
Thread title courtesy of Henchster.
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