ERISA • Employment Law

When is a Death “Accidental” for Purposes of an Accidental Death and Dismemberment Insurance Policy

Sometimes Accidental Death and Dismemberment (AD&D) insurers will dispute whether an insured’s death was the result of an accident.  A recent decision from the United States District Court for the Northern District of Illinois provides some additional guidance.  See Tran v. Minn. Life Ins. Co., Case No. 17-cv-450 (N.D. Ill. March 5, 2018).  A copy of the court’s opinion can be found here.

The insured in Tran was a participant in his employer’s AD&D insurance plan.  He died while engaging in autoerotic asphyxiation – a state of asphyxia intentionally induced (as by smothering or strangling oneself) so as to heighten sexual arousal during masturbation.  “Autoerotic Asphyxiation.” Merriam-Webster, n.d. Web. 7 Mar. 2018.  There was no dispute that insured did not intend to take his own life and that his death was an accident, as that term is commonly used.

The insured’s widow submitted a claim for AD&D benefits from the insurer.  The insurer denied the claim.  It relied on a provision of the plan that stated claims were not payable for deaths arising as a result of “self-inflicted injury.”  The widow appealed.  The insurer denied the appeal after consulting with an expert on the same grounds, but with further explanation.  It explained that

Accidental death as defined in the policies must result “from an accidental injury which is unexpected and unforeseen.” The injury in autoerotic asphyxiation of constricting blood flow to the brain is not unexpected or unforeseen but rather the purpose of the autoerotic activity. Based on the above, we have not received sufficient proof that [the insured’s] death is the result of an accidental injury as defined in the policy.

. . .

The self-inflicted injury of intentionally constricting blood flow to the brain distinguishes autoerotic activity from the other avocation examples listed in your letter of appeal. None of the other activities mentioned in your letter (skydiving, motorcycle riding, or sailing) involve intentionally interrupting an essential bodily function.

The widow subsequently filed suit.

The Court reviewed the widow’s claim under the de novo standard of review, as the parties agreed that standard of review applied, and found that the insurer wrongfully denied the widow’s claim for AD&D benefits.  After discussing the fairly well-developed body of case law on the topic, the Court explained its reasoning as follows:

the medical examiner’s report explains that hypoxia, when induced to an extent that does not cause loss of consciousness, can cause drowsiness, impaired judgment, excitement, disorientation, and headache. Reasonable minds could disagree on whether these results are, in and of themselves, “injuries.” Of course, if hypoxia lasts too long, it can result in loss of consciousness; however, there is no evidence in the record that [the insured] intended to lose consciousness.

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?

The Court then considered “whether [the insured’s] strangulation, which resulted after he lost consciousness, is ‘an accidental injury which [w]as unexpected and unforeseen.’”  It concluded it was because “loss of consciousness and strangulation were [not] substantially certain to result from his conduct. Although the practice of autoerotic asphyxiation is undoubtedly risky, Plaintiff had engaged (and many others do engage) in the practice without losing consciousness, strangling themselves, or dying.”

If you have filed a claim for AD&D benefits and the insurer has denied your claim because the death was not an “accident,” do not take the insurer’s word for it.  You should consult with an experienced accidental death insurance lawyer.  You may have a limited time in which to appeal the decision (generally 60 days for employer-sponsored AD&D plans).

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Mr. Garner is an ERISA employee benefits and employment attorney with over a decade of experience. The laws governing employee benefits, the employment relationship, and the workplace are complex.

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