Second Circuit Holds Death by Autoerotic Asphyxiation is Not an Intentionally Self-Inflicted Injury Under Policy Governed by ERISA
December, 2004
The United States Court of Appeals for the Second Circuit recently held that an accidental death resulting from autoerotic asphyxiation does not constitute “intentionally self-inflicted injury” as used in an exclusion in an accidental-death-and-dismemberments insurance policy governed by the Employee Retirement Income Security Act (“ERISA”). Critchlow v. First UNUM Life Ins. Co. of America, 378 F.3d 246 (2d Cir. 2004).
On February 27, 1999, Daniel Critchlow was found dead in his bedroom. He was unclothed, lying on the floor with ligatures attached to various parts of his body. Critchlow, at 249-250. Cords connected to his body were attached to a set of counter weights designed to act as an emergency escape in the event he lost consciousness. Apparently, the escape measures failed to work and Mr. Critchlow lost consciousness and choked to death. The coroner’s report concluded that his death was the result of autoerotic asphyxiation and the death certificate stated that the cause of death was accidental asphyxiation. Id. at 250.
Plaintiff Shirley M. Critchlow sought recovery of death benefits from defendant First UNUM Life Insurance Company of America (“UNUM”) under a Policy covering her son who accidentally died as the result of autoerotic asphyxiation (i.e., the practice of limiting the flow of oxygen to the brain during masturbation in an effort to heighten sexual pleasure). Id. at 250. UNUM denied Plaintiff’s application for death benefits under the Policy on the grounds that Mr. Critchlow’s death was not accidental and the death was caused by intentionally self-inflicted injuries. Id. UNUM relied on an exclusion in the Policy which stated: “We will not pay if the loss is caused by: (1) Intentionally self-inflicted injuries.” Id. In denying the claim, UNUM relied on the holding and reasoning in Bennett v. American International Life Assurance Company of New York, 956 F.Supp. 2001 (N.D.N.Y. 1997), which set forth the legal standard to be applied in benefits cases covered by ERISA. UNUM claimed that Mr. Critchlow may have subjectively expected to survive the activity which caused his death, but that expectation was not objectively reasonable, and therefore the autoerotic asphyxiation that resulted in his death was an intentionally self-inflicted injury that was excluded under the policy. Id. at 251.
Plaintiff commenced an action in Federal District Court under ERISA, 29 U.S.C. § 1132(a)(1)(B), alleging that the Policy was issued pursuant to a benefit plan covered by ERISA; that the Policy provided payment of death benefits for an insured who dies as the result of an accident; and UNUM had wrongfully denied Plaintiff’s claim for death benefits. Id. UNUM moved for summary judgment on the grounds that Mr. Critchlow’s death was not accidental and that the death was excluded from coverage because it resulted from intentionally self-inflected injury, or from illness or disease. Id. The District Court stated that there was no evidence that Mr. Critchlow had intended or expected to kill himself while engaging in the act of autoerotic asphyxiation. 198 F.Supp.2d at 320-21. However, the District Court granted UNUM’s motions for summary judgment, holding as a matter of law that Mr. Critchlow’s death was the result of intentionally self-inflicted injuries. Id. The District Court relied in large part on decisions by the Fifth and Eighth Circuit Courts of Appeals which held that death caused by autoerotic asphyxiation were caused by self-inflicted injuries. See Sims v. Monumental Gen’l Ins. Co., 960 F.2d 487 (5th Cir.1992), aff’d 778 F.Supp. 325 (E.D.La.1991); Sigler v. Mutual Benefit Life Insurance Co., 663 F.2d 49 (8th Cir. 1981). The District Court found that strangulation was an injury in and of itself and Mr. Critchlow’s death resulted directly or indirectly, wholly or partly from the intentionally self-inflicted injury. 198 F.Supp.2d at 323.
On appeal, the Second Circuit noted that both Sims and Sigler were diversity cases decided by state law, not claims governed by ERISA, as was the case with Plaintiff’s claim. Critchlow, at 257. The Second Circuit looked to the only federal appellate case that addressed the question of whether death from autoerotic asphyxiation falls within a policy’s exclusion for self-inflicted injuries under the ERISA standards. Padfield v. AIG Life Insurance Co., 290 F.3d 1121 (9th Cir.), cert. denied, 537 U.S. 1067, 123 S.Ct. 602, 154 L.Ed.2d 556 (2002). In Padfield, the Ninth Circuit held that voluntary risky acts that result in injury are not necessarily considered acts that result in self-inflicted injury. Padfield, at 1129. Whether autoerotic asphyxiation results in intentionally self-inflicted injury depends on whether the physical consequences the deceased intended were injuries. Id. The exclusion for “self-inflected injuries” applies, and the insurer may properly deny benefits, only if the intended consequences are considered injuries and those injuries lead to the death of the insured. Id.
The Second Circuit answered the question of whether Mr. Critchlow intended to injure himself and, if so, whether his injuries lead to his death, based on a subjective/objective analysis used by other courts in ERISA cases. Critchlow, at 257; see also Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1088 (1st Cir. 1990). The Second Circuit first asked whether Mr. Critchlow subjectively lacked an expectation of death or injury, then considered whether the basis of the insured’s expectation of not being injured or killed was reasonable. If Mr. Critchlow subjectively lacked the expectation of death or injury and that subjective expectation was reasonable, his autoerotic asphyxiation could not be an intentionally self-inflected injury.
The Second Circuit found that all of the evidence supported a finding that Mr. Critchlow’s death was subjectively unintended and that he subjectively expected to survive his experience. Critchlow, at 258. For example, he had built an escape measure into his binds, a clear indication that he had no intent to kill himself. In addition, the police had found evidence that he had shopped for groceries hours earlier and was planning supper. Id. at 250. There was no indication that Mr. Critchlow had intended to commit suicide or expected to injure or kill himself.
The Second Circuit also found that Mr. Critchlow’s subjective intent to survive was objectively reasonable. Id. at 259. He had only intended to temporarily restrict his airway - not completely strangle himself as the District Court concluded. His intent was never to lose consciousness, but only to experience a temporary lightheadedness and euphoria that has no serious or lasting impact on one’s health. Id. at 260; see also Padfield, 290 F.3d at 1126. Furthermore, there was evidence that Mr. Critchlow had engaged in autoerotic asphyxiation for over 15 years and had survived with no evidence of injury or harm. Critchlow, at 260. The Second Circuit also cited the analysis in Padfield that noted that death from autoerotic asphyxiation is statistically rare. See Padfield, at 1125-27. Based on the existence of the escape mechanism and his extensive experience with the practice of autoerotic asphyxiation, the Second Circuit concluded that Mr. Critchlow’s subjective belief that he would survive was objectively reasonable.
UNUM argued that it was unreasonable for Mr. Critchlow to believe that autoerotic asphyxiation did not present a serious risk of injury or death. Critchlow, at 262. The Second Circuit rejected this argument as unfounded and noted that the exclusion relied on by UNUM does not exclude activities that are merely hazardous, such as rappelling, rock climbing and skydiving. Id. Those activities are “controlled risks” and participants do not set out to injure or kill themselves. The exclusion at issue here does not exclude death resulting from activity in which serious risk is willingly undertaken, provided the injury was not intended, and, objectively, not likely to occur. Id. at 263.
Learning Point:
The Second Circuit’s decision in Critchlow holds that accidental death resulting from autoerotic asphyxiation is not an intentional self-inflicted injury for the purposes of a policy covered by ERISA. Both Critchlow and Padfield stand for the proposition that voluntary risky acts (not just autoerotic asphyxiation) resulting in injury are not necessarily acts that result in intentional self-inflected injury. In addition, Critchlow also reaffirms the subjective/objective analysis used in Padfield and other cases to determine questions of an insured’s expectations and intent in cases governed by ERISA. That is, first, whether the insured had a subjective expectation of a particular outcome and, second, whether that subjective outcome was objectively reasonable. This test is likely to prove important in interpreting provisions in ERISA governed policies going forward. •
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