2017 Accidental Death and Dismemberment...

2017 Accidental Death and Dismemberment Update

E. Ford Stephens

Christian & Barton LLP

909 East Main Street Richmond, VA 23219

Gary Schuman

Combined Insurance Company of America

111 E. Wacker Drive Chicago, IL 60601

E. Ford Stephens has a litigation practice in Virginia with a focus on insurance and appeals. He is a partner at Christian & Barton LLP, and he represents insurers in life, health, disability, and ERISA litigation in both state and federal courts. He is a former chair of the DRI Life, Health and Disability Committee, having previously served as program chair for the committee’s seminar, and he currently is on the DRI Insurance Roundtable Steering Committee. Mr. Stephens also is a member of the International Association of Defense Counsel and the Association of Life Insurance Counsel. He is a contributing author to the Fourth Circuit chapter in the ABA publi-cations ERISA Survey of Federal Courts and Misrepresentation in the Life, Health and Disability Insurance Application Process: A National Survey. Mr. Stephens has been elected into the Fellows of the American Bar Foundation.Gary Schuman is senior counsel–Litigation at Combined Insurance Company of America, in Chicago, Illinois, a supplemental life, health and disability insurer and a subsidiary of Chubb Ltd. Mr. Schuman’s practice includes providing day-to-day legal support to the Claims, Underwriting, Policyholder Service and Special Investigations Departments, as well as managing all contract and extra-contractual damage liti-gation nationwide. Mr. Schuman is a former chair of the DRI Life, Health and Dis-ability Committee, having also served as program chair for the committee’s annual seminar. He has lectured at numerous national and regional legal conferences and is widely published in a number of law journals and treatises on a variety of life, health and disability topics.

2017 Accidental Death and Dismemberment Update ■ Stephens and Schuman ■ 3


I. Introduction ...................................................................................................................................................5A. ERISA/Federal Law ................................................................................................................................6B. State Law .................................................................................................................................................6C. Summary Judgment—ERISA/State Law ...............................................................................................8D. Burden of Proof ......................................................................................................................................9

II. Accident/Sickness ........................................................................................................................................10A. Not an Accidental Death ......................................................................................................................11B. An Accidental Death ............................................................................................................................15

III. Alcohol Consumption ..................................................................................................................................17A. Drunk Driving ......................................................................................................................................17B. Acute Alcohol Consumption Causing Death Is Considered “Accidental” Under ERISA

and Does Not Constitute an Intentionally Self-inflicted Injury ........................................................20 IV. Exclusions .....................................................................................................................................................21

A. Alcohol/Drunk Driving ........................................................................................................................23 1. ERISA ............................................................................................................................................... 23

B. Alcohol/Non-Driving Accidents ..........................................................................................................24C. Admissibility of Blood-alcohol Level Test Results .............................................................................25

Table of Contents



After an introduction of accidental death and dismemberment (“AD&D”) coverage, this paper focuses on cases, under both ERISA and state law, which deal with two of the more thorny AD&D issues: an insured’s pre-existing illness and his or her alcohol consumption. The paper is not intended to be an exhaus-tive study of the topic. The scope of this paper is far more limited, as it is intended to address selected issues through a discussion of some recently decided cases.

I. IntroductionWhat is an “Accident?” “Probably it is true to say in the strictest sense and dealing with the region of

physical nature there is no such thing as an accident. On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insurance.” LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment Plan, 605 F 3d 789, 794 (10th Cir. 2010), quoting Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499 (1934) (Cardozo, J., dissenting) (quotations, citations omitted). More precisely, when is death accidental under insurance policies specifically written for such events? For a century and a half, courts and underwriters have struggled to answer what has been described as “one of the more philosophically complex questions.” Svensson v. Securian Life Ins. Co., 706 F. Supp. 2d 521, 523 (S.D.N.Y. 2010), quoting Adam F. Scales, Man, God and the Serbonian Bog: The Evolution of Accidental Death Insur-ance, 86 Iowa L. Rev. 173, 175 (2000), quoting Fegan v. State Farm Mut. Life Assur. Co. of Am. 945 F. Supp. 396, 399 (D. N.H.1996). Recently, one court noted that in order to determine whether death may be excluded from accidental death benefits, “the court must sometimes ‘slosh through the [serbanian] bog’ and ‘split hairs so finely….’ Horton v. Life Ins. Co. of N. Am., No. ECH-14-3 2015 U.S. Dist. LEXIS 39980 at *48 (D. Md. March 30, 2015) (Citation omitted.)

The term “accident” has been given diverse meanings when used in insurance policies. Grissom v. Commercial Union Insurance Co., 610 So.2d 1299, 1304 (Fla. App. 1993). In fact, there may be no “ordinary” meaning of “accident” upon which everyone can agree. West v. Aetna Life Insurance Co., 171 F. Supp.2d 856, 880 (N.D. Iowa 2001). “Much of the inconsistency in the case law defining and applying the definition of acci-dent is traceable to the difficulty in giving substance to a concept which is largely intuitive.” Id. at 880. Accord-ingly, “the term ‘accident’ has been heavily litigated throughout history.” Jones v. Metropolitan Life Ins. Co., 385 F. 3d 654, 662 (6th Cir. 2004).

The issue of what constitutes an accidental bodily injury in the context of life and health insurance has been addressed by the courts in a variety of contexts. A significantly litigated issue involves death occur-ring while the insured is intoxicated, whether when driving, falling down or other similar mishaps. Other common coverage issues include drug overdose, whether sickness played a predominant role in the insured’s death, and suicide. Each of these areas will be covered below.

It is important to note that the outcome of any litigated challenge to coverage may depend on whether the coverage is governed by ERISA or state law. For example, one commentator has noted that “there is a clear split between state and federal courts on” the issue of whether death resulting from drunk driving is considered to be an accident. “[C]ourts applying state law…largely” find that “such deaths to be accidental,” and federal courts applying ERISA have generally found them [instead] to be non-accidental.” This may be due to the “extremely deferential” treatment provided by courts under ERISA’s arbitrary and capricious review standard. Michael E. Gardner, Note, “Accidental Death Insurance Coverage of Drunk Drivers, 69 Mo. L.Rev. 235, 250 – 51 (Winter 2004).

6 ■ Life, Health, Disability and ERISA ■ April 2017

A. ERISA/Federal LawWhere no plain meaning can be determined from an ERISA plan language, courts typically look to

federal common law to assess the reasonableness of a plan administrator’s interpretation. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56 (1987). In the context of federal common law, as it has been developed under ERISA, perhaps the most cited case involving accidental death coverage is the seminal decision of Wickman v. Northwestern National Insurance Co., 908 F.2d. 1077 (1st Cir. 1998).

Wickman, applying federal common law, discusses what constitutes an “Accident” within the mean-ing of an ERISA Plan. The insured died after he climbed over a guardrail on a highway overpass and fell onto the railroad tracks 90 feet below. Just before the fall, a witness observed Mr. Wickman standing outside the guardrail, holding on to it with one hand. The insured’s accidental death policy defined the term “accident” vaguely, as “an unexpected, external, violent and sudden event.” Id. at 1081. The ERISA plan administrator denied accidental death benefits, and the beneficiary sued.

The Wickman court set forth the following approach for determining whether a death is accidental. First, the court must consider “the reasonable expectations of the insured when the policy was purchased.” Id. at 1088. That is, did the insured subjectively expect an injury similar in type to the kind suffered to follow from his conduct? The court found that the insured’s expectations are relevant because “in most cases actual expecta-tions govern the risks of an insurance policy.” Id. If the fact-finder determines that the insured did not subjec-tively expect an injury, or if the fact-finder cannot ascertain the insured’s subjective expectations, the court will conduct an objective analysis. Id. The objective analysis consists of a determination “whether a reasonable per-son, 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.” Id. at 1089. If the insured “actually expected the result, even if he did not specifically intend it,” then his or her subsequent death is not accidental. Id.

Applying this framework, the Wickman court concluded that the insured “knew or should have known that serious injury or death was a probable consequence substantially likely to occur as a result of his volitional act.” Id. at 1089. The insured “either subjectively expected serious injury, or...[o]bjectively, he rea-sonably should have expected serious injury when he climbed over the guardrail and suspended himself high above the railroad tracks below.” Id. Accordingly, the district court’s decision to deny accidental death benefits was affirmed.

ERISA recognizes a distinction between intended consequences and highly likely consequences. An act may be unintentional but still not considered to be an accident because it was highly likely to occur. “Accident” is viewed as an “unexpected” event. Moore v. Life Ins. Co of North America, 708 F. Supp. 2d 597,610 (N.D. W.Va. 2010), citing Gower v. AIG Claim Services, Inc., 501 F. Supp.2d 762, 772 (N.D. W.Va. 2007). See also Wagner v. Minn. Life Ins. Co., No. CV 15-47-M-DLC, 2016 U.S. Dist. LEXIS 54019 at *10 (D. Mont., April 20, 2016).

B. State LawState courts and federal courts deciding cases under diversity rules follow a different approach. Most

often, insurance policies do not provide a precise definition of “Accident” or “Accidental Injury.” The case law therefore provides that insurance policies, like other contracts, should be interpreted so as to give effect to the intention of the parties. The policy’s language must be given its ordinary and common meaning. Summers v. Great Southern Life, 122 P.3d 195, 197 (Wash. App. 2005); National Union Fire Insurance Co. v. McMurray, No. 08-11029, 2009 WL 2710076 at *2 (5th Cir. Aug. 27, 2009). This means that the term “accident” must be inter-preted according to the usage of the average or ordinary person. Barnes v. Am Int’l Life Assur. Co. of N.Y., No.


08-CV-6222, 2010 WL 376127 at *9 (S.D. N.Y. Feb. 4, 2010); Buck v. Gulf Life Insurance Co., 548 So.2d 715, 718 (Fla. App. 1989).

State law cases generally have relied on the view that anything that is neither intended nor foreseen is an “accident.” Delgado v. Interinsurance Exchange, 97 Cal. Rptr. 3d 298, 302 (Cal. 2009) (an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or unknown cause”.) (citations omitted); Troeger v. Minn. Life Ins. Co., No. 14-1083, 2016 U.S. Dist. LEXIS 104427 at *9 (C.D. Ill. Aug. 9, 2016). See also Flores v. Monumental Life Ins. Co., 620 F.3d 1248 (10th Cir. 2010)(Okla.); Collins v. Nationwide Life Insurance Co., 294 N.W.2d 194, 196 (Mich. 1980); Est. of Reif v. Automotive & Truck Services, Inc., No. 2007AP2582, 2008 WL 5071882 at *3 (Wis. App. Dec. 3, 2008). An accident is generally understood as an unfortunate consequence which befalls an individual through inattention, carelessness or for no reason at all. Donegal Mut. Ins. Co. v. Baumhammers, 938 A. 2d 286, 292 (P.A. 2007) (“an unexpected and undesirable event occurring unintentionally, and that the key term in the definition of the ‘accident’ is ‘unexpected’ which implies a degree of fortuity.”) See also Reinhardt v. Metropolitan Prop. & Cas. Ins. Co., No. A-08-634, 2009 WL 97165 at *2 (Neb. App. Jan. 13, 2009). A death will be considered accidental absent a showing that the death was the result of the insured’s plan, design or intent. Rodgers v. Reserve Life Insurance Co., 132 N.E.2d 692, 696-97 (Ill. App. 1956).

The question is not whether death was reasonably foreseeable, because neither the level of foreseea-bility required for tort liability, Troeger, 2016 U.S. Dist. LEXIS 104427 at *9; Fryman v. Pilot Life Ins. Co., 704 S.W.2d 205, 206 (Ky. 1986), nor for criminal recklessness is sufficient to rule the death was not accidental. Rus-sell v. Metropolitan Life Ins. Co., 439 N.E.2d 89, 93 (Ill. App. 1982).

In tort law, foreseeability is viewed as something that is more than a mere possibility of occur-rence arising from conduct which falls below the standard established for the protection of others. Collins, 294 N.W.2d at 196. A risk is foreseeable if a reasonable person could foresee the probability of its occurrence. Downs v. Bush, 263 S.W. 3d 812, 820 (Tenn. 2008). Criminal law requires a conscious disregard of a substan-tial and unjustifiable risk that circumstances exist or that a result will follow and that such disregard constitute a gross deviation from the standard of care which a reasonable person would exercise. Marsh v. Metropoli-tan Life Ins. Co., 388 N.E. 2d 1121, 1123 (Ill. App. 1979). Otherwise, death from any high-risk activity could be said to be reasonably foreseeable and not an accident. Cranfill v. Aetna Life Ins. Co., 49 P.3d 703,707 (OK 2002).

There is a presumption that death by violent means resulted from an accident and the burden shifts to the insurer to prove otherwise. Mutual of Omaha v. George, 434 S.W.2d 307, 310 (Ark. 1968). However, the fact that an individual did not intend to commit suicide does not, by itself, support a finding that death was accidental. Gulf Life Insurance Co. v. Nash, 97 So.2d 4, 7 (Fla. 1957). But see, Smith v. Stonebridge Life Ins. Co., 582 F. Supp. 2d 1209 (N.D. Calif. 2008) “[p]olicies requiring only that there be proof of accidental death are construed broadly, such that the injury or death is likely to be covered unless the insured virtually intended his death or injury.” Id. at 1216, quoting Weil v. Federal Kemper Life Assur. Co., 866 P. 2d 744 (Cal. 1994).

The test is whether the death was foreseen by the insured. Est. of Reif v. Automotive & Truck Serv-ices, Inc., No. 2007AP2582, 2008 WL 5071882 at *3 (Wis. App. Dec. 3, 2008). The death is accidental unless the insured actually intended or expected that his conduct would in all probability result in death. Troeger, 2016 U.S. Dist. LEXIS 104427 at *11. Consumers Life Insurance Co. v. Smith, 587 A.2d 1119, 1122 (Md. App. 1991). Therefore, unless it is determined that the insured intended or expected his conduct to have fatal con-sequences, death is considered accidental. Carney v. Paul Revere Life Insurance Co., 832 N.E.2d 257,268 (Ill. App. 2005). The general rule is that death which is the natural and probable consequence of an act or course of action is not accidental. Weil v. Federal Kemper Life Assurance Co., 866 P.2d 774,786 (Cal. 1994).


C. Summary Judgment—ERISA/State LawERISA cases most often are decided on cross-motions for Summary Judgment. Youngblood v. Metro-

politan Life Insurance Comp., No.1:10cv105, 2011 U.S. Dist. LEXIS 116644 at *2 (W.D. N.C. Oct. 7, 2011). The parties in cases governed by state law also many times seek summary adjudication. However, the standard of review for each is different. An insurer’s denial of benefits applying state law does not receive judicial defer-ence, regardless of whether the plan administrator had discretionary authority to deny benefits. Flores v. Mon-umental Life Ins. Co., 620 F.3d 1248 (10th Cir. 2010) (Okla.).

State courts (or federal district courts applying state law under diversity jurisdiction) simply deter-mine whether there is a genuine issue of material fact. Rule 56 of the Federal Rules of Civil Procedure requires the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party’s case, and on which that party will bear the burden of proof. Celotex Corp. v. Catrett, 477 U.S.317, 322 (1986). The party seeking sum-mary judgment has the initial burden to identify areas essential to the non-moving party’s claim in which there is an “absence of a genuine issue of material fact.” Lincoln Cen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th

Cir. 2005). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a mate-rial fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” DIRECT TV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006). If the moving party meets this initial bur-den, the non-movant must go beyond the pleadings and designate specific facts showing there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 532, 536 (5th Cir. 2006). The court reviews the facts and inferences to be drawn from them in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003).

The usual summary judgment standards cited above do not apply in an ERISA case. The Federal Rules of Civil Procedure do not address motions for judgment on the administrative record. However, courts have applied F.R.C.P. 56 in such situations, granting summary judgment where the record shows that there is no genuine issue as to any material fact. Rule 56(c), Muller v. First Union Life Ins. Co., 341 F.3d 119, 124 (2d Cir. 2003). Judges applying ERISA often review the administrator’s decision and the record relied upon to ascertain whether the decision is supported by substantial evidence or constitutes an abuse of discretion, Prather v. Sun Life Fin. Distrib., No. 14-3273, 2016 U.S. Dist. LEXIS 40663 at *13 (C.D. Ill. March 29, 2016). [W]here the abuse of discretion standard applies in an ERISA benefits denial case, a motion for summary judgment is merely the conduit to bring the legal question before the district court and the usual tests of sum-mary judgment, such as whether a genuine issue of material fact exists, do not apply. Nolan v. Heald College, 551 F.3d 1148, 1154 (9th Cir. 2009) (Internal citation and quotation omitted).

The arbitrary and capricious standard, which is synonymous with abuse of discretion, Davis v. Life Ins. Co. of North Am., No. 09-50853, 2010 WL 2102040 at* 2(5th Cir. 2010), is applied when the plan admin-istrator is granted discretionary review of the administrative record and is considered to be the least demand-ing form of judicial review. A decision is arbitrary only if made without a rational connection between the known facts and the decision or between the found facts and the evidence. Holland v. Int’l Paper Co. Retire-ment Plan, 576 F.3d 240, 246 (5th Cir. 2009). When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious. Conkright v. Frommert, 130 S. Ct. 1640, 1646 (2010). Stated differently, the Court only must decide whether the plan administrator’s decision was rational in light of the plan’s provisions. Davis, 2010 WL 2102040 at*2. An administrator’s decision will be upheld if it is the result of a deliberate principled reasoning process, and if it is supported by substantial evi-dence. Egger v. UNUM Life Insurance Company of America, No. 2:07-CV-1244, 2009 WL 3157398 at *5 (S.D. Ohio, Sept. 28, 2009). (Citations Omitted.) See also Glover v. National Union Fire Ins. Co. of Pittsburgh, PA.,


No. 07-2808-STA, 2009 WL 3169691 at *7 (W.D. Tenn. Sept. 29, 2009). However, having discretion does not provide the insurer with “carte blanche” authority to determine whether the death is accidental. Prather v. Sun Life & Health Ins. Co., No. 16-1861, 2016 U.S. App. LEXIS 22135 at *6 (7th Cir. Dec. 13, 2016).

Courts apply a de novo standard when the plan does not provide discretionary review. Here, the Court will determine whether the plan administrator made the correct decision. Dowdy v. Metro. Life Ins. Co., No. 15-CV-03764-JS7 2016 U.S. Dist. LEXIS 52423 at *6 (N.D. Cal. April 18, 2016). Plan terms, such as “acci-dent” are interpreted based on what a reasonable person in the position of the plan participant would under-stand the term to mean, not what the insurer intended the term to mean. LaAsmar, 605 F.3d at 801. Unlike a discretionary review standard, the administrator’s decision is not accorded any presumption of correctness or other form of deference. The Court will review anew the factual determinations and legal conclusions of the plan administrator. Cornish v. United States Life Insurance Co. of the City of New York, No. 3:06CV-344-DW, 2009 WL 3231351 at *4 (W.D. Ky. Sept. 30, 2009).

D. Burden of ProofThe insured has the burden of proving that the loss is covered under the policy coverage provisions,

while the insurer has the burden of proving that an exclusion applies. These principles apply regardless of whether ERISA or state common law applies. LaAsmar, 605 F.3d at 814; Troeger v. Minn. Life Ins. Co., No. 14-1083, 2016 U.S. Dist. LEXIS 104427 at *8 (E.D Ill., Aug. 9, 2016); Martra Y v. TransAmerica Premier Life Ins. Co., No. 16-1363, 2016 U.S. Dist. LEXIS 140244 at *3 (W.D. Pa., Oct. 7, 2016). Accordingly, the initial bur-den of establishing that death was accidental falls on the beneficiary. Smith v. Stonebridge Life Ins. Co., 582 F. Supp. 2d 1209, 1216 (N.D. Calif. 2008); American General Life and Acc. Ins. Co v. Birchum, No. 5:08-176-JMH, 2008 WL 4822517 at *4 (E.D. Ky. Nov. 5, 2008); Campbell v. Stonebridge Life Ins. Co., No. 382-2008, 2009 WL 315687 (Del. Supr. Feb. 10, 2009). The beneficiary establishes a prima facie case by establishing the policy was in force at the time of death, death resulted from accident (the death certificate is prima facie evidence as to the cause of death) and notice to the insurer. Barro v. AMEX Assur. Co., No. 2:14-cv-1095-WKI PWG, 2016 U.S.S Dist. LEXIS 89564 at *16 (M.D. Ala. June 16, 2016) (Ala. Law). Whether or not the death is considered to be an “accident” is a separate issue of whether or not an exclusion applies. Cummings v. Minnesota Life Ins. Co., No. 09-CV-207-TLW, 2010 WL 1816415 at *5 (N.D. Okla. May 3, 2010).

An exclusion comes into effect only if the Court first determines the loss is, in fact, a covered acci-dent. Sanchez v. Life Insurance Company of North America, No. SA-08-CV-XR, 2009 WL 3255160 at *6 (W.D. Tex. Oct. 6, 2009). The distinction between coverage under an accidental death policy and exclusions con-tained within the policy is important. This point is illustrated in Russell v. Gill, No. 2016-UP-177, 2016 S.C. App. Unpub. LEXIS 21 5 (S.C. App. April 13, 2016). Here, Russell applied to Penn Life for an individual dis-ability policy. The policy was issued containing an exclusion for losses due to intoxication.

Russell was injured in a motorcycle accident and cited by the police for driving under the influence. His blood-alcohol level exceeded the legal limit for operating a motor vehicle in South Carolina. Benefits were denied pursuant to this exclusion.

Russell sued for policy benefits and bad-faith. Penn Life counter-sued seeking a declaratory judg-ment that benefits for the loss were barred under the exclusion. The Circuit Court held in favor of the insured, finding that S.C. Code sec. 38-71-30 prevented enforcement of the exclusion because Penn Life’s proof of deliv-ery of the policy was not proper. This statute states:

Every insurer doing accident of health insurance business in the State shall deliver with each policy of insurance issued by it a copy of the application made by the insured so that the whole contract appears in the application and policy of insurance. If the insurer violates this require-


ment, no defense is allowed to the policy on account of anything contained in or omitted from the application. ****

The South Carolina Court of Appeals summarily reversed this decision. The Court held that a viola-tion of this statute only prohibits an insurer’s use of any defense “on account of anything contained in or omit-ted from the application.” The statute does not prevent an insurer from asserting defenses based on the terms of the policy itself. Because the Intoxication exclusion was contained within the policy, rather than within the application, the Court held the statute did not prevent Penn Life from enforcing the exclusion.

A policy exclusion “makes clear to the insured that any claim that arises from a particular fact will not be covered by the contract, whereas other claims are free to proceed. ***Thus, in contrast to situations where a claim by the plan language of the contract, would be covered …exclusions let the insured know up front that claims arising from certain facts are not covered.” Gluck v. Executive Risk Indemnity, Inc., 680 F.Supp.2d 406, 418 (E.D.N.Y. 2010). Accordingly, an insured is placed on notice before the coverage is pur-chased that certain types of losses are not covered. Id.

Courts have little difficulty enforcing exclusions, so long as the language is clear and unambiguous. Womack v. Minn. Life Ins. Co., No. 2:15-cv-00838-HG, 2016 U.S. Dist. LEXIS 153825 at *5 (N.D. Ala., Nov. 7, 2016), C. Ingram Co v. Philadelphia Indemnity Insurance Co., 694 S.E.2d 181, 184 (Ga. App. 2010). As stated in Fidelity Nat. Title Ins. Co. of N.Y. v OHIC Ins. Co., 619 S.E.20704, (Ga. App. 2005) “an insurance company may fix the terms of its policies as it wishes, provided that they are not contrary to law, and it may insure against certain risks and exclude others. Though exclusions…are strictly construed against the insurer, one that is plain and unambiguous binds the parties to its terms and must be given effect, even if beneficial to the insurer and detrimental to the insured. [The court] will not strain to extend coverage where none was contracted or intended.” (Cited by Ingram Co.).

II. Accident/SicknessCourts have encountered considerable difficulty when trying to determine what is an “accident” for

insurance law purposes, especially when the issue of the insured’s sickness is involved. As stated long ago in Dreiskell v. United States Accident Insurance Co., 93 S.W.880, 882 (Mo. Ct. App. 1906):

People differ so widely in health, vitality, and ability to resist disease and injury that what may mean death to one man would be comparatively harmless to another, and therefore the fact that a given injury may not be generally lethal does not prevent it from becoming so under certain conditions, and if, under the peculiar temperament or condition or health of the individual upon whom it inflicted, such injury appears as the active, efficient cause that sets into motion agen-cies that result in death, then it should be regarded as the sole and proximate cause of death. The fact that the physical infirmity, of the victim may be a necessary condition to the result does not deprive the injury of the distinction as the sole producing cause.

Stated differently, there has been a “long-standing allegorical tug-of-war” between insurers and the courts.

As noted in Hall v. Metropolitan Life Insurance Company, 259 Fed. Appx. 589, 594 (4th Cir. 2007):

At one extreme, insurance companies can be characterized as proffering an interpretation of pol-icy provisions in which “accidental death” coverage applies only on facts “which [are] the equiv-alent of a truck dropping from the skies, striking squarely and killing instantly a perfectly fit human specimen clutching a just-issued physician’s clean bill of health.” ***At the other, the ben-


eficiary of a particularly frail decedent might claim coverage even when an insignificant trauma had disproportionately debilitating consequences. (Citations omitted.)

Cases involving preexisting conditions almost invariably fall within these polar opposites.

A. Not an Accidental DeathTo use the Fourth Circuit’s nomenclature in Hall, the following cases can be described as involving

frail decedents or insignificant trauma that had disproportionately debilitating consequences.In Dowdy v. Metropolitan Life Ins. Co., 2016 U.S. Dist. LEXIS 52423 (N.D. Cal. April 18, 2016), the

central question in dispute is whether the insured’s amputation entitled him to benefits under an ERISA-gov-erned accidental death and dismemberment coverage. At issue was whether the accident experienced by the insured was the “direct and sole cause” of the loss, and whether an exclusion for “physical or mental illness” that “caused or contributed to” the loss applied. The insured, who suffered from diabetes, experienced injuries in a traffic accident, including an ankle fracture. The insured received treatment for that fracture, but later his left foot was amputated five months after the accident.

The plan covered losses when the claimant “sustain[s] an accidental injury that is the Direct and Sole Cause of a Covered Loss,” and Direct and Sole Cause provision stated: “Direct and Sole Cause means that the Cov-ered Loss occurs within 12 months of the date of the accidental injury and was a direct result of the accidental injury, independent of other causes.” The plan also had an exclusion that stated: “We will not pay benefits under this section for any loss caused or contributed to by:[] 1. physical or mental illness or infirmity, or the diagno-sis or treatment of such illness or infirmity.” Under a de novo review, and without expressly differentiating on which plan provision it relied, the court upheld the insurer’s decision that AD&D benefits were not payable. It noted that the actual loss at issue was the surgical amputation that occurred five months after the accident, that the amputation was completed to treat an aggressive infection, and that this decision was made at least in part due to the impact of his diabetes. Id. at *18-19. Recognizing that the infection, caused by the injury sustained in Mr. Dowdy’s car accident, was the predominant reason for the amputation, the court noted that the plan “dictates that the accident must be the ‘direct and sole cause’ of the loss and that no other physical or mental illness ‘caused or contributed to’ that loss. Here, Mr. Dowdy’s diabetes clearly contributed to his loss.” Id. at *20.

Another recent case involving diabetes, but outside the context of ERISA, is Price v. Dearborn National Life Ins. Co., 2016 U.S. Dist. LEXIS 137289 (W.D. Tex. 2016). In Price, the insured stepped on a nail and, after a period of time, an infection developed that necessitated the amputation of the insured’s leg below the knee. Price was diagnosed with diabetes approximately 26 years prior to the amputation. Expert testimony confirmed the impact of diabetes on his ability to fight infections and as an increased risk factor for amputa-tion. The insured’s own expert analogized his diabetes and its role in his amputation to “a forest in a drought awaiting a spark.” The expert acknowledged that the insured’s diabetes played a role with his ultimate out-come, but also added that even a person without diabetes, who steps on a nail that enters the foot and hits the bone, has a “very high” chance of needing an amputation.

Under the relevant policy, a loss must be the direct and sole result of an accident and be indepen-dent of all other causes. The policy defined “accident or accidental” as “a sudden, unexpected event that was not reasonably foreseeable.” Moreover, the policy contained an exclusion for a loss “that, directly or indirectly, results in any way from or is contributed to by . . . [s]ickness, disease, bodily or mental infirmity, or medical or surgical treatment thereof . . . .”

On the insurer’s motion for summary judgment, the court found that there was a genuine issue of material fact as to whether the insured stepping on the nail was foreseeable. However, the court found that


an injury must result in a loss independent of all other causes, and that there is no genuine issue of material fact as to whether the insured’s diabetes was “a cause” that resulted in his injury. The court pointed to the doc-tors’ express statements that the diabetes had a “causal impact” in the infection becoming as severe as it did. Though, there was no evidence indicating that the insured’s diabetes did not causally contribute to his ampu-tation, and both experts agree that the diabetes contributed to his amputation. Alternatively, and for the same reason, the court found that the exclusion for a loss that “directly or indirectly, results in any way from or is contributed to by sickness, disease, bodily or mental infirmity, or medical or surgical treatment thereof,” not-ing that diabetes fits within that ambit.

In Leonard v. GE Co., 2016 U.S. Dist. LEXIS 98738 (D. Mass. 2016), the relevant plans provided for bene-fits for bodily injury caused solely by accidental means and, independently of all other causes, resulting in death. And, under the plans, “no benefits will be payable if the death or loss is caused or contributed to by disease, or bodily or mental infirmity or medical or surgical treatment of such disease or infirmity ...” The insured had a long history of alcohol abuse. On his admission to the emergency room, the insured reported that he had “been on a bender for several days” and could not recall any definite trauma. Yet, he was found to have an injury to his spleen. He was deemed not to be a good surgical candidate because of his severe underlying liver disease and the terrible condition he was in. He later died, and his death certificate indicated that the immediate cause of death was “hepatorenal failure due to cirrhosis due to alcohol abuse.” But almost eighteen months later, another doctor asserted that the Insured’s death was “causally related to [an] accidental fall which resulted in a traumatic rupture of his spleen” and that because “he was not a surgical candidate, this set up a progressive series of systems failure that ultimately resulted in his death.” In addition to raising a timeliness defense, the insurer refused payment of benefits because (a) there was insufficient proof that the splenic injury was caused by an accidental fall; (b) even if it were, the record did not support that such injury was the sole and independent cause of the insured’s death; and (c) at the very least, the insured’s alcoholic liver disease contributed to cause his death.

Reviewing the decision under an abuse of discretion standard under ERISA, the court upheld the insurer’s decision. It noted that “[i]f an accident was not the ‘sole cause’ of decedent’s death or if his death results ‘in any way’ or was contributed to by disease,” then decedent’s beneficiaries are not entitled to recover accidental death benefits. Moreover, where the policy provides, as it did in this case, that recovery is proper only if the death was “caused solely by accidental means and, independently of all other causes,” the plaintiff must prove that a medical condition caused by, say a fall or other accident, was the direct cause of decedent’s death independent of any preceding medical condition; that is, that the accident, as opposed to the preceding medical condition, was the dominant cause of death. The court drew the following distinction: “Where the a sickness or disease causes an event which results in death, the death is generally considered to be the result of an accident--for example, an individual has an epileptic seizure that causes a fall resulting in a fatal head injury. However, if the accident causes a fatal episode of the disease, the death is ‘caused or contributed to’ by disease, i.e., the accident is not the ‘sole cause’ of death.” Turning to the facts, the court had little difficulty upholding the insurer’s determination based on all three points that it had cited when it had denied the claim.

Another case involving alcohol abuse decided under ERISA is Wagner v. Minnesota Life Ins. Co., 2016 U.S. Dist. LEXIS 54019 (D. Mont. 2016). In that case, the policy defined an accidental death means that “the insured’s death or dismemberment results, directly and independently of all other causes, from an accidental injury which is unintended, unexpected, and unforeseen” and that the bodily injury must be the sole cause of death or dismemberment. The policy also had exclusions “where the insured’s death or dismemberment is caused directly or indirectly by, results from, or whether there is a contribution from, any of the following: “bodily or mental infirmity, illness or disease; [or] infection, other than infection occurring simultaneously with, and as a direct result of, the accidental injury.”


In Wagner, the insured died in her home after she attempted to quit drinking alcohol after several years of alcohol abuse. She stopped drinking alcohol on her own will and was reportedly sick for several days prior to her death. Earlier that week, the insured stumbled in her bedroom and hit her head, denting a sheet-rock wall. During her detoxification, she was found on the bathroom floor, shaking and too weak to rise. She was found dead shortly thereafter on her bedroom floor. Both an autopsy and the death certificate indicated that her death was a result of chronic alcohol abuse that resulted in marked steatosis and hemorrhagic pancre-atitis. Applying the Wickman subjective/objective test, the court agreed that the insured subjectively lacked an expectation that she would die if she stopped drinking and that any reasonable person under the same or simi-lar circumstances would also lack this expectation. The concluded that under the subjective and objective test, the death was an accident. However, it also found that the “bodily or mental infirmity, illness, or disease” excep-tion applied. The court cited to the dictionary definitions of “infirmity,” “illness” and “disease,” and concluded that alcoholism is clearly a bodily infirmity, illness, or disease. Because the insured’s voluntary cessation of alco-hol stemmed from her alcoholism, the bodily infirmity exclusion applies and coverage is precluded.

In Ghiorso v. American General Life Ins. Co., 2016 U.S. Dist. LEXIS 149792 (D. Mont. 2016), the par-ties agreed that the died from a mixed drug overdose, and that she was taking the drugs as prescribed for various medical conditions, including sleep apnea and diabetes. The insurer argued that coverage was appro-priately denied because the policy definition of “accidental injury” specifically stated that loss resulting from medication is not an “accidental injury.” Deciding the case under state law, the court first rejected the benefi-ciary’s argument that death certificates dictate the existence of insurance coverage. “Whether [the insured’s] death occurred accidentally is an entirely different question than whether she sustained an ‘accidental injury’ under the terms of the insurance policy.” Id. at *8.

Next, the court in the policy definitions, “accidental injury” was defined as an “accidental bodily injury, which is unforeseen and suddenly sustained without design or intent of an Insured Person that: (a) is not caused or contributed to, directly or indirectly, by a disease, bodily or mental infirmity, illness, infection, medicine or surgery used to treat an Insured Person, or any other cause or physical condition.” Id. at *8-9. The court noted that the plain language of this clause made it clear that bodily injury caused or contributed to by medicine is not an “accidental injury.”

The court rejected an argument that this clause was ambiguous in light of another exclusion in the policy for an Insured Person “being under the influence of an excitant, depressant, hallucinogen, narcotic; or any other drug or intoxicant including those prescribed by a Physician that are misused by the Insured Per-son.” The court concluded that when medical treatment included taking prescribed narcotics, as in this case, the medical treatment exclusion applies without respect to the use of the prescribed narcotics. The drug exclu-sion for non-prescribed narcotic use or abused prescription drugs simply was inapplicable. Turning to the facts, the court found that it was undisputed that the insured was receiving ongoing medical treatment at the time of her death; that the treatment included the use of prescription medication to address her pain, depres-sion, and diabetes; and that consequently, her accidental death, which resulted from a mixed drug overdose resulting from ongoing medical treatment for those ailments, was expressly excluded by the unambiguous language of the policy.

In Hagen v. Aetna Life Ins. Co., 2015 U.S. App. LEXIS 21460 (5th Cir. 2015), under the policy, to be entitled to payment of an accidental death benefit, the claimant was required to provide proof that death “was a direct result of a bodily injury suffered in an accident.” “Accident” was a defined term that meant “a sudden external trauma that is; unexpected; and unforeseen; and is an identifiable occurrence or event producing, at the time, objective symptoms of a [sic] external bodily injury,” and it could not be “due to, or contributed by, an illness or disease of any kind.”


The insured fell, fracturing his right hip, and was taken to the hospital where he was told he would require hip surgery. His medical history included that he was a regular smoker and a chronic alcoholic; he had had lung cancer; he suffered from increased pedal edema, hyperkalemia, and a deep vein thrombosis in his right leg; and at the time of the fall, he suffered from Chronic Obstructive Pulmonary Disorder (COPD). The insured reported that he could not walk long distances, had a history of difficulty with falls, and felt he was severely limited. Additionally, the insured was generally malnourished, was minimally ambulatory, and spent most of his time lying in bed or sitting. The insured had surgery but died a couple of weeks later. An autopsy was performed, finding that the cause of death was “complications of blunt force trauma of lower extremity with intertrochanteric fracture of femur” and listed as contributory causes COPD, chronic alcoholism, and hypertensive cardiovascular disease. Under manner of death, the report read: “Accident (Fell).” Aetna found that the insured did not suffer a covered “accident,” because his fall was due to or contributed to by his illness. The trial court found for the insurer, and the beneficiary appealed.

Under an abuse of discretion review under ERISA, the appellate court affirmed. It found that there was evidence sufficient to permit a reasonable mind to reach the conclusion that the insured’s fall was due to or contributed to by illness. The parties had disputed the level of causation required by the terms of the plan, with the claimant contending that there must be substantial evidence that the illness was a but-for cause of his fall for her claim to be excluded. The insurer seemed to argue that the plan requires only that the illness be a contributing cause. The court noted that courts have long struggled to interpret causation standards in policy exclusion clauses like the one at issue here. Because it concluded that there was substantial evidence to sup-port the conclusion that the insured’s illness was a but-for cause of his fall, the court did not resolve that dis-pute.

In Ervin v. National Union Fire Ins. Co., 2015 U.S. Dist. LEXIS 125497 (D. Md. 2015), the policy pro-vided coverage for an accidental death benefit “[i]f Injury to the Insured Person results in death within 365 days of the date of the accident that caused the Injury,” and “Injury” was defined as “bodily injury (1) which is sustained as a direct result of an unintended, unanticipated accident that occurs while the injured person’s coverage under the Policy is in force, and (2) which directly (independent of sickness, disease or any other cause) causes a covered loss.” Also, the policy had exclusions any loss resulting in whole or in part from, or contributed to by, or as a natural and probable consequence of certain excluded risks “even if the proximate or precipitating cause of the loss is an accidental bodily injury,” and such risks included sickness, disease, mental incapacity or bodily infirmity, the Insured Person being under the influence of intoxicants while operating any vehicle, and stroke or cerebrovascular accident or event; cardiovascular accident or event; myocardial infarc-tion or heart attack; coronary thrombosis; aneurysm.

The insured was boating on the Severn River when he became ill, leaned over the side of the boat to vomit, fell into the river, and subsequently died. The insured was medically obese, a Type II diabetic, had been a pack-a-day cigarette smoker for forty years until he quit just four months earlier, and had a history of heart disease. There was no dispute that he had a heart attack of some severity before falling in the water. The report on the autopsy noted a blood alcohol level significantly above the legal limit and concluded that the insured “died of Atherosclerotic Cardiovascular Disease complicated by Drowning.”

Reviewing the insurer’s denial of benefits pursuant to a de novo review under ERISA, the court noted a well-established line of decisions in which courts have held that accidental death benefits are payable where a disease or preexisting condition causes an accident that, in turn, causes a death despite policy exclusions for losses caused by sickness or illness. Plaintiff argued that, because there is no evidence that the insured would have died of the heart attack had he experienced it on dry land, the exclusion does not apply to her claim. The heart attack may have caused the drowning, but there is no evidence that it caused the death. On that factual


question, the court agreed. Yet, it still found that the claim was excluded because of the policy language. The Policy provided that coverage was excluded where a noncovered risk (in this case, heart disease) contributed to the death “even if ” a covered risk (in this case, an accidental drowning) was the proximate and more imme-diately precipitating cause. While the insured may not have died had he had the heart attack on land, there was no genuine dispute that the heart attack contributed to his death in an immediate and significant manner; but for the cardiac disease, there was no reason he would have fallen into the water. The medical evidence was that the underlying cardiac disease that started the unfortunate chain of events.

B. An Accidental DeathTo return to the Fourth Circuit’s colorful language in Hall, some of the following cases can be

described as involving perfectly fit human specimen or the equivalent of a truck falling from the sky.

Prather v. Sun Life & Health Ins. Co., 2016 U.S. App. LEXIS 22135 (7th Cir. 2016) was a case decided under ERISA that involved a 31 year old insured who had torn his left Achilles tendon playing basketball. Before he had surgery to repair the tendon, the insured complained of pain and swelling. The surgery was uneventful. But approximately two weeks later, he collapsed at work, went into cardiopulmonary arrest, and died the same day as a result of a deep vein thrombosis (blood clot) in the injured leg that had broken loose and traveled through the bloodstream to a lung, thus becoming a blood clot in the lung—that is, a pulmonary embolism—which caused cardiac arrest and sudden death. The relevant AD&D policy limited coverage to “bodily injuries that result directly from an accident and independently of all other causes.”

The insurer took the position that the pulmonary embolism and ensuing death were consequences not of—at least not entirely of—the accident to the insured’s Achilles tendon, but of the surgery. In response, the court stated, “Of course that means it was also a consequence of the accident, for without the accident there would have been no surgery. But it may have been a consequence of the surgery as well. Indeed it is even possible that had it not been for the surgery, [the insured] would not have died.” The court found that the insurer’s medical evidence was speculative because it was not an opinion that the insured’s death was a result of not just of the accident but also of independent events; rather, it was that the death might have been a par-tial result of such events. Although the beneficiary had the burden to prove that the death was accidental, the court found that she was not required to disprove any possible alternative cause of death. Otherwise, “it would give the insurer carte blanche to reject coverage in a case in which an accident is a conceded cause of death (there is no suggestion that Prather, a young man, would be dead had he not torn his Achilles tendon), merely because there is some speculative possibility that something else may also have played a role.” The court noted that all the evidence shows was that his death followed both the surgery and the accident that preceded the surgery. The insurer argued that it had discretion to decide what evidence was sufficient to demonstrate a dis-ability, but the court found otherwise, finding that the insurer’s position would amount to it having “carte blanche to decide whether or not to honor its contract.”

In McDonald v. OneBeacon Am. Ins. Co., 2015 U.S. Dist. LEXIS 180536 (N.D. Ga. 2015), the court did not conclude that the insured had died of an accident, but its analysis is denying the insurer’s motion for summary judgment may have portended such a result. The policy in question defined accident or accidental as “a sudden, unexpected, specific and abrupt event that occurs by chance at an identifiable time and place . . . .” There were exclusions for a loss caused in whole or in part by, or resulting in whole or in part: (1) an ill-ness or disease, regardless of how contracted; medical or surgical treatment of illness or disease; or complica-tions following the surgical treatment of illness or disease . . . or (2) a cardiovascular event or stroke caused by exertion prior to or at the same time as an accident. The insured was driving a truck when it left the road and crashed. He was found in his truck unresponsive and died later that day. A post-mortem found that the


insured was massively overweight, had an enlarged heart and other coronary issues. There were abrasions on his body, apparently resulting from his truck crash, that were not considered life threatening. A doctor con-cluded that the insured’s heart disease and resulting arrhythmia was the cause of his death. Yet, with these facts, the court denied the insurer’s motion for summary judgment.

The court first found that the insured suffered an injury, or “bodily harm,” and that his arrhyth-mia could also fall within the policy’s broad definition of an accident, as “a sudden, unexpected, specific and abrupt event that occurs by chance.” That the insured suffered a heart episode at that moment is a specific event that appears unexpected and random. The next question then was whether the accident was “inde-pendent of all other causes,” a phrase that the court found to be ambiguous because, it asked, how can the insured’s heart condition be an “other cause” when it is the only cause? The court found that the insured’s pre-existing illness was not a contributing factor that combined with some other injury from an accident that caused his death. Instead, his heart condition was quite possibly the only cause both of his death and of his crash. As to the exclusion for coverage for “illness or disease, regardless of how contracted,” the court found that to be ambiguous, too, because the word “contracted” could mean “‘[t]o acquire or incur by contagion or infection.’” The policy also excluded from coverage any losses caused by “a cardiovascular event or stroke caused by exertion prior to or at the same time as an Accident.” The court acknowledged the presence of a car-diovascular event, but fund that the insurer had provided no evidence of exertion in driving the truck.

In Wichita Firemen’s Relief Association v. Kansas City Life Insurance Company, 609 Fed. Appx. 530 (10th Cir, 2015), a fireman was insured under a policy that provided benefits for loss that resulted “directly and independently of all other causes from accidental bodily injury.” The policy also excluded coverage for a loss caused by, contributed to, or resulting from “bodily or mental illness or disease of any kind, or medical or surgical treatment of the illness or disease.” The association contended it was entitled to recover under the policy when the insured died after rupturing chordal structures in his heart while fighting a two-alarm con-dominium fire. He did not fight fires of such extreme nature on a regular basis, but the conditions of the fire were consistent with his training and job expectations. After the fire, he was treated for a heart condition. The insured underwent surgery, which revealed a damaged mitral valve and three torn chordal structures. He died shortly thereafter. The association presented evidence tending to show that death was caused by an acute rup-ture of the chordae tendinae brought on by extreme physical exertion during the fire, but the insurer relied upon evidence tending to show that the death was instead the product of chronic mitral valve disease. The trial court entered summary judgment for the insurer.

On appeal, the court the policy insured against loss that “results directly and independently of all other causes from accidental bodily injury,” and that the Kansas courts interpreting such contracts inquire whether the bodily injury at issue constitutes an “accident”—i.e., “an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.” The association argued that the trial court had applied an “accidental means” test, which the court noted was a more difficult threshold to satisfy than the “accidental result” test, as “the activity or occurrence that led to the injury must have been accidental.” But the applicable state law had abolished the distinction between accident means and accidental result. Regardless of the test that the trial court applied, the appellate court reversed and remanded, finding that there were genuine issues of material fact exist as to whether the rupture of chordal structures within the insured’s heart, brought upon by extreme exertion in fighting a fire, consti-tuted “accidental bodily injury.” The court found that the rupture of chordal structures within his heart could be found by a jury to be unexpected and unforeseen, even given that fighting fires under strenuous conditions was within his line of duty. The court also concluded that state law does not require a “manifestation of force” for an injury to constitute an accident; it merely noted that accidents are “often accompanied by a manifesta-


tion of force.” Further, even if state law did practically require some “manifestation of force,” the state supreme court has rejected a distinction based on whether that force was internal or external.

III. Alcohol ConsumptionA heavily litigated issue in the accidental death coverage context continues to be whether the

insured’s death while under the influence of alcohol is a covered loss. The determination can be significantly controlled by whether the insured was covered under an ERISA plan or state law governed policy. The courts, applying the arbitrary and capricious standard under ERISA, until very recently, often have held such deaths to be not covered. State law decisions, however, lean toward coverage.

A. Drunk DrivingThe most common issue involving death while intoxicated arises when the insured was operating

a motor vehicle. The insurer often contends that death resulting from driving under the influence of alcohol is not an “accident” because the insured should have reasonably foreseen the consequences of such conduct. Drinking alcohol clearly impairs a driver’s ability to drive. The insured voluntarily and unnecessarily engaged in this activity and displayed a reckless disregard for his life. Any person operating a motor vehicle in a highly intoxicated condition should fully appreciate the probable consequences of such conduct. Accordingly, the death is not unexpected, unusual or unforeseeable.

The beneficiary counters by arguing that “accident” is rarely defined in the policy and an ordinary person would consider the resulting death to be an accident. True, driving while intoxicated violates the law and is an extremely dangerous act, but it is not such an act that one who commits it can be said to reasonably know or expect that it will probably result in death or serious bodily injury. In fact, statistics prove that only a very small percentage of drunk drivers will actually die or become injured, and the evidence often establishes that the insured fully intended to arrive to his intended destination safely.

Recent ERISA cases have demonstrated that courts are not likely to find a per se rule of non-coverage should apply, but rather that the fiduciary should assess the totality of the facts and circumstances surround-ing the claim, provide the beneficiary an adequate opportunity to explain the causes and circumstances sur-rounding the crash and only then make a reasoned assessment which is supported by substantial evidence contained in the administrative record.

These concepts were recently discussed in Wilson v. Aetna Life Ins. Co., No. 8:15-CV-752 (MAD/CFH), 2016 U.S. Dist. LEXIS 135396 (N.D.N.Y. Sept. 30, 2016). The insured died after his motorcycle col-lided with another vehicle. He was covered under an ERISA governed Accidental Death Plan and the benefi-ciary sought benefits thereunder. The death certificate indicated the insured died from “multiple blunt force injuries,” and his blood-alcohol level was 0.246%, over three times the state’s legal limit for operating a motor vehicle.

Police investigators determined the collision occurred at approximately 8:00 p.m. in June, on an unlit two lane asphalt highway. The speed limit was 55 miles per hour but based on witness testimony the insured’s speed was estimated to be 124 miles per hour! There were no highway defects, view obstructions or “animal actions” that might have contributed to the crash.

Aetna denied benefits, arguing that such reckless conduct by the insured amounted to an intention-ally self-inflicted injury and that he should have foreseen the consequences of his conduct. Thus, the death was not the result of an accident. The District Court, applying an arbitrary and capricious standard of review, agreed with Aetna. The Judge noted:


Courts reviewing the denial of accidental death benefits under the arbitrary and capricious standard have almost always found that the plan acted reasonably in determining that injuries resulting from driving while intoxicated do not arise from an “accident.” Some of these courts applied a “reasonably foreseeable” approach….that a death resulting from driving while intoxi-cated, while not deliberately suicidal, is not “accidental” because the result was reasonably fore-seeable, (Citations omitted.)

Similarly, courts applying the broader common law definition of “accident” have upheld deni-als of ERISA benefits in cases where the insured’s death resulted from driving while intoxicated. (Citations omitted)

2016 U.S. Dist. LEXIS 135396, at *24.

The Judge also noted that courts have taken “judicial notice” of the scientific fact that as blood-alco-hol levels rise, so does the risk of a fatal collision. “Any drunk driver who takes to the road should know he runs the risk of injuring another person [or himself]. The extent of the risk will of course vary from case to case, depending on how intoxicated the driver is, how far he drives, how fast he drives, and how many other drivers and pedestrians are sharing the road with him.” Id. at *29.

Similarly, in Clark v. Life Insurance Company of North America, No. 1:12-cv-1977-TCB, 2013 U.S. Dist. LEXIS 85541 (N.D. Ga., June 18, 2013) the court ruled a drunk driving death is not accidental. Here, the insured died while riding his motorcycle in the early afternoon. He was riding downhill below the speed limit and approached a curve. He appeared to brake hard, skidded off the highway and was thrown from the bike, striking a tree. He wasn’t wearing a helmet and his blood-alcohol level was 0.176% with a positive reading for marijuana. The road was paved with no defects or obstacles and there were no adverse weather conditions. The ERISA policy provided benefits “for loss from bodily injuries: a) caused by an accident…and b) which, directly and from no other causes, result in a covered loss.” The term “accident” is not defined. Benefits were denied on the basis that an accident is a “sudden, unforeseeable external event” and the insured’s death was reasonably foreseeable. Applying the arbitrary and capricious standard of review, the district court upheld the denial, finding the plan administrator’s decision to be reasonable. The beneficiary failed to provide any sup-port for her argument that something other than the insured’s intoxication caused or contributed to the fatal injury. Nor did the judge accept the argument that although driving while intoxicated is known to be danger-ous, death or injury is not foreseeable because many people engage in this conduct without adverse effects. The court referred to the Wickman decision and its subjective/objective standard of review. The beneficiary argued because the crash occurred in the afternoon, he was an experienced motorcycle user, familiar with the road and was looking forward to an upcoming vacation, he subjectively expected to survive. The judge rejected this argument because there is no evidence of what the insured expected at the time he purchased the policy. To the contrary, the insured could not reasonably believe that under these circumstances he would not be seriously injured or killed. So too, objectively, a person with the insured’s characteristics should have viewed injury or death as highly likely to occur. Without any other factors, the BAC and drug test results are important factors. Nor was the insurer required to produce expert testimony (i.e. a toxicologist) to establish the effects of alcohol and drugs on the insured’s driving ability based on the facts presented. “A reasonable person with [the insured’s] college education and experience riding a motorcycle on the road at issue would know the dangerous effects that alcohol and marijuana would have on the ability to ride downhill towards a curve. Importantly, there were no other factors that could have contributed to [the insured’s] loss of control, crash and death. Thus, a reasonable person would perceive death as a highly likely outcome of riding a motor-cycle downhill towards a curve under the influence of alcohol and drugs even when doing so in broad daylight on a dry, paved, defect-free road.”


In James v. Life Insurance Co. of N. Am., No. H-12-2095, 2015 U.S. Dist. LEXIS 89131 (S.D. Tex., May 11, 2015) the insured was killed in a single vehicle accident. The police report indicated the weather condi-tions were fine, the road was dry, dark and unlit without any defects and there were no sight obstructions. The officer determined the insured failed to maintain proper control of his vehicle while negotiating a curve. The insured’s blood-alcohol was later determined to be 0.19%, over two times the legal driving limit in Texas.

The insurer denied accidental death benefits under an ERISA plan, arguing that the insured’s death didn’t constitute an accident because a reasonable person, knowing that every state has criminalized drunk driving, would know about the dangers and consequences of such conduct. A vehicle collision and death were reasonably foreseeable based on the insured’s level of intoxication.

The District Court disagreed, citing Wickman v. N.W. Nat’l Ins. Co., 908 F. 2d 1077 (1st Cir. 1990). Under this decision, death will be considered an accident if (1) the deceased had a subjective expectation of survival, and (2) that this expectation was objectively reasonable, which it is if death is not substantially cer-tain to result from this conduct. Noting that the term “accident” was not defined in the Plan documents, the Court said the insurer’s denial amounted, in substance, to a per se rejection of drunk driving as an accident and based its decision of the concept of “Foreseeability.” This standard is too liberal. Nor can the insurer rely solely on the insured’s blood-alcohol level.

A reasonable person would not necessarily anticipate, much less find highly likely, that serious injury or death from driving with a high blood-alcohol level. Here, the insurer relied solely on the claim form, death certificate, policy, autopsy and toxicology reports to deny benefits. This amounts to a per se rule against drunk driving, which the Court rejects.

These ERISA decisions followed the general rule that a drunk-driving fatality is not accidental. One of the earlier leading cases in this regard is Stamp v. Metropolitan Life Insurance Company, 531 F.3d 84 (1st Cir. 2008), affirming 466 F.Supp.2d 422 (D.R.I. 2006). Here, the First Circuit Court of Appeals reaffirmed the prin-ciples set forth in Wickman regarding the criteria necessary to determine what an “accident” under ERISA is and directly applied these principles to drunk-driving deaths.

Mr. Steven Stamp, an employee of Exxon Mobil and covered under a group life and two accidental death insurance policies, attended a company function in Connecticut. He drank alcohol but, by all accounts, was acting in a normal manner and did not appear to be impaired. Later that evening, Mr. Stamp was killed when he drove his car off the road and struck a tree. The road was dry, traffic was light and there were no adverse weather/driving conditions. His blood-alcohol level was more than three times the legal limit. MetLife paid the basic life benefit but denied the accidental death benefit on the ground that Stamp’s conduct did not constitute an “accident.” The plan administrator denied the beneficiary’s appeal and this lawsuit followed. The District Court entered judgment for the defendants and Mrs. Stamp appealed.

The Appellate Court, applying an abuse of discretion standard, affirmed. The administrator’s deci-sion was reasoned and supported by substantial evidence. Acknowledging that the term “accident” was not defined in the plans, the Court noted the administrator had the duty of applying this term to the circum-stances surrounding the insured’s death. Following the rules set forth in Wickman, the operative inquiry into the insured’s expectations involves his state of mind at the time the loss occurred, not at the time the policy was purchased. Here, a reasonable person, under the above described circumstances, could not expect acci-dent coverage for death resulting from this conduct. The Court noted that a subjective analysis usually can’t be undertaken, so the judges look at the insured’s expectations objectively (“whether a reasonable person, with background and characteristics similar to the insured, Accident.” This term was defined as a “sudden, unfore-seeable, external event that results, directly and independently of all other causes....” An independent forensic toxicologist opined that at Mr. Davis’s level of intoxication he would have a delayed response time as well as


impaired sensory-motor skills, attention, judgment and control. Based on these findings, benefits were denied because the death was not considered to be a “Covered Accident.” Applying an abuse of discretion review, the District Court upheld the administrator’s decision and the 5th Circuit Court of Appeals affirmed. The plans did not define “unforeseeable,” but the administrator acted reasonably when it interpreted this term in a man-ner consistent with the term’s plain meaning. “Considering the toxicologist’s findings as to the effects of such severe intoxication, it was reasonable to decide that a foreseeable consequence of riding a motorcycle in that condition would be a serious accident.”

So too, a few courts have supported the insurer’s denial of accidental death benefits under state law.

For example, in Williams v. Life Ins. Co. of N.A., No. C14-0866 RSM, 2015 U.S. Dist. LEXIS 99865 (W.D. Wash., July 30, 2015) the District Court, applying Washington state law, found an insured’s fatal crash while driving a motorcycle while intoxicated (0.17% - twice Washington’s legal driving limit) was not an acci-dent. The plaintiff argued that death resulting from a drunk-driving crash should be considered “accidental” because the collision was neither expected nor intended. The District Court disagreed. Following Washington’s acceptance of the accidental means/results standard, the Court stated an accident will never be found when the insured engages in a deliberate act.

All that is required is that the claimant knows or should know facts from which a prudent per-son would conclude that the injurious consequences are reasonably foreseeable. Otherwise, an insured could shift intentionally inflicted injuries to an insurer in violation of public policy.

Id. at *11. Here, the insured made the deliberate decision to operate his motorcycle after consuming a large amount of alcohol and drive at a high rate of speed. The road required drivers to negotiate turns, which the insured was unable to do because of his intoxication and high speed level. The insured’s subjective beliefs are not relevant. The means as well as the result must be accidental.

Similarly, in Jones v. Federal Ins. Co., No. 14-cv-00313-JSG, 2015 U.S. Dist. LEXIS 90088 (N.D. Cal. July 10, 2015). There, following California law, which also recognizes “accidental means,” accidental death benefits were denied for a heroin overdose. The Court noted that the distinction between “means” and “results” is often controlling. Policies interpreted to cover accidental results will be broadly construed to pro-vide coverage unless the insured virtually intended to cause injury or death to himself.

On the other hand, an “accidental means” policy requires not only that the result (injury or death) be unexpected or unforeseen, but also the act leading up to loss must contain some element of unexpectedness.

B. Acute Alcohol Consumption Causing Death Is Considered “Accidental” Under ERISA and Does Not Constitute an Intentionally Self-inflicted Injury

In Nichols v. UniCare Life & Health Ins. Co., 739 F. 3d 1176 (8th Cir. 2014), the insured was found face down in bed. She was pronounced dead at the hospital and the cause of death was determined to be “mixed drug intoxication,” from multiple drugs found in her blood system (but no alcohol). Evidence showed the insured had prescriptions for multiple drugs. Benefits under an ERISA governed Accidental Death Plan were denied, in part, under an exclusion for death caused by intoxication. Specifically, the Intoxication Exclusion defined “intoxicated” as legally intoxicated as determined by the laws of the jurisdiction where the accident occurred.” Id. at 1180. The District Court ruled in favor of the beneficiary, finding that a reasonable person in the position of a plan participant would understand “intoxication” to relate to death resulting from engag-ing in conduct such as driving while intoxicated, but not when the immediate cause of death is ingestion of a lethal mixture of prescription drugs.


The Eighth Circuit Court of Appeals, applying a de novo standard of review, affirmed the District Court’s decision. Specifically,

Arkansas law defines intoxication with reference only to public offenses of drunk driving and public intoxication. [The insured’s] death involved neither. We view the common and ordinary meaning of the policy language as a reasonable person in the position of the plan participant would have understood the words to mean. A reasonable plan participant would have under-stood that the plan’s intoxication exclusion is intended to apply to death caused by committing acts, such as driving while intoxicated; not to situations where the immediate cause of death is ingestion of a lethal mixture of drugs that had been prescribed for use by the [insured.]

Id. at 1184.

But in Balthis v. AIG Life Ins. Co., 5 Fed. Appx. 320 (4th Cir. 2001), the insured died while drinking with friends. He had been eating dinner and fell asleep on the couch. Later, he vomited and choked to death. Accidental death benefits were denied under an ERISA Plan pursuant to an exclusion for any loss caused in whole or in part from the insured being intoxicated. The District Court ruled for the insurer because “legally intoxicated” referenced how state law, where the loss occurred, interpreted this phrase to mean, rather than a precise standard of “intoxication.”

The Appellate Court affirmed, finding the insured was legally intoxicated. Looking to North Carolina law, intoxication was defined as “the condition of an individual whose mental or physical functioning is pres-ently substantially impaired as a result of the use of alcohol or other substance.” The beneficiary argued this exclusion should not apply because the insured’s intoxication was not related to any illegal activity such as driving while intoxicated. This is so because the exclusion defined “legally intoxicated” to reference the appli-cable law of the jurisdiction where the accident occurred. Sleeping while intoxicated is not a violation of the law.

The Appellate Court, however, stated that “legally intoxicated” means that the parties intended to look to the law of the state where the loss occurred. Applying North Carolina law, there are several sections discussing intoxication. Here, the insured’s blood-alcohol level was 0.16%, well in excess of the state’s limit for driving, operating a motor boat or aircraft. So too, the state’s Public Intoxication statute and Mental Health and Substance Abuse Act define intoxication to mean an individual’s impairment. Here, the insured clearly was impaired.

IV. ExclusionsExclusions are generally enforceable in insurance contracts because “[i]nsurance companies are free

to limit their liability in a manner not inconsistent with public policy as reflected by case or statutory law”. Officer v. Chase Insurance Life and Annuity Company, 541 F. 3d 713, 717 (7th Cir. 2008), quoting Allstate Ins. Co. v. Boles, 481 N.E. 2d 1096, 1098 (Ind. 1985). See also Womack, 2016 U.S. Dist. LEXIS 153825 at *5. The burden of proving that an exclusion applies falls on the insurer. This requirement is applicable for both ERISA plans, LaAsmar v. Phelps Dodge Corp. Life, Accidental Death & Dismemberment and Dependent Life Insur-ance Plan, 605 F.3d.789,814 (10th Cir. 2010); Catledge v. Aetna Life Ins. Co., 594 F.Supp.2d 610, 624 (D.S.C. 2009) and state law, Smith v. Stonebridge Life Ins. Co., 582 F. Supp. 2d 1209, 1217 (N.D. Calif. 2008). Exclusions must be “plain, clear and conspicuous”. Hall v. National Union Fire Ins. Co. of Pittsburgh, PA., No.08 CV1195 JLS(WVG), 2010 WL 2650271 at *6 (S.D. Cal. July 1, 2010):

[T]o be enforceable, any provision that takes away or limits coverage reasonably expected by an insured must be “Conspicuous, plain and clear.” Thus, any such limitation must be placed and


printed so that it will attract the reader’s attention. Such a provision also must be stated precisely and understandably in words that are part of the working vocabulary of the average layperson. The burden of making coverage exceptions and limitations conspicuous, plain and clear rests with the insurer.

Hall, 2010 WL 2650271 at *6, quoting Haynes v. Farmers Ins. Exchange, 89 P. 3d 381, 385 (CV.2004). There must be a causal relationship between the loss and the exclusion. Horton v. Life Ins. Co. of N. Am., No. LEH-14-3, 2015 U.S. Dist. LEXIS 39980 at *47 (D. Md., March 30, 2015). Once facts supporting an exclusion are pre-sented by the insurer, the burden shifts to the insured to produce evidence to show that the exclusion does not apply after all. Martra Y, 2016 U.S. Dist. LEXIS 140244 at *3.

The “causation” requirement is satisfied when the insurer establishes even a “minimal” level of causa-tion between the intoxication and loss. “[I]t is clear that the operation of a vehicle while intoxicated need not be the sole cause of the loss to trigger application of the [intoxication] exclusion. On the other hand, intoxica-tion in and of itself, does not automatically bar recovery of benefits…[T]here must be some evidence of the role of alcohol in the loss, beyond the insured’s intoxicated state, to establish the applicability of the exclusion.” Horton, 2016 U.S. Dist. LEXIS 39980 at *47. Courts consistently have rejected any “per se” rule excluding acci-dent coverage simply because the insured was intoxicated. Horton, 2015 U.S. Dist. LEXIS 39980 at *73-74.

But see Werbianskyj v. Zurich Am. Ins. Co., No. 3:15-cv-104, 2016 U.S. Dist. LEXIS 100157 (N.D. Ind., Aug. 1, 2016) (where the court stated “courts across the country have upheld plan administrators’ determina-tions that deaths are not ‘accidental’ when the decedent is under the influence of drugs or alcohol at the time of an accident and no other apparent cause of the incident exists.”). Id. at *24.

However, this may depend on the language of the exclusion. For example, in Morgan v. Stonebridge Life Ins. Co., No. 15-cv-929-SMY-DGW, 2017 U.S. Dist. LEXIS 8238 (S.D. Ill. Jan. 20, 2017) the insured, cov-ered under an individual accident death policy, died in a single vehicle crash. The insured’s blood-alcohol level was 0.182%.

The accident scene investigation determined the insured’s vehicle left the roadway and rolled several times, stopping approximately 170 feet from the road. No alcohol or illegal substances were found. Nor was an autopsy or accident reconstruction performed.

Benefits were denied under a policy exclusion stating that no injury will be covered which “is caused by or results from the [insured’s] blood alcohol level being 0.10% weight by volume or higher. The beneficiary filed this lawsuit.

Evidence presented established the insured, a farmer, and worked for 5 straight days, each exceeding 12 hours. On the night in question, he left work at 9 p.m. and drove to a friend’s house. He was seen drinking. He did not appear intoxicated when he left the house approximately 20 minutes prior to the accident. Finally, there was evidence that due to the insured’s long work days, he often fell asleep sitting in his chair.

The District Court granted Summary Judgment on the issue of contract liability to the plaintiff, find-ing the exclusion to be ambiguous. “Caused by or results from” can be interpreted to mean either the alcohol contributed to the crash or was a substantial or the sole cause of the crash. Thus, the Judge, applying Illinois law, found the exclusion must be interpreted to mean that the intoxication is the sole proximate cause of the crash.

Here, there was evidence of other likely reasons why the insured crashed his vehicle. He could have just as easily fallen asleep while driving or swerved to avoid something in the road. Nor was there any evi-dence that he appeared intoxicated.

The Judge rejected forensic testimony provided by the insurer that the insured was more likely to be in an accident because they failed to show that the blood-alcohol actually caused the accident. So too, he


rejected case decisions from Nebraska, Louisiana and Kansas finding a similar exclusion required the insurer only to establish that the insured’s blood-alcohol level is causally related to the accident.

A. Alcohol/Drunk Driving

1. ERISAIn McDonough v. Federal Insurance Company, No. 11-11022-RWZ, 2012 U.S. Dist. LEXIS 131408

(D. Mass. Sept. 14, 2012), the court admonished the plan administrator for not including alcohol exclusion in ERISA plan. The insured, covered under an ERISA accidental death plan, died from the simultaneous use of cocaine and alcohol. The medical examiner noted the insured displayed a chronic use of cocaine. The plan did not contain exclusions for alcohol or drug use and benefits were denied on the basis that there was no evi-dence of an accident (the parties agreed the cocaine use had been voluntary) and exclusions for suicide and intentional injuries applied. “Accident” was defined as “a sudden, unforeseen, and unexpected event.” Follow-ing Wickman, the court found no evidence regarding the insured’s subjective expectations. The plaintiff had the burden of proving that a reasonable person with the insured’s background and characteristics would not have viewed injury as highly likely to result from this conduct. Based on the parties’ dispute over how much cocaine had been ingested, and applying a de novo standard of review, the court denied summary judgment on this issue. The court did grant the beneficiary’s motion for summary judgment on the applicability of the exclusion finding no evidence of any desire by the insured to commit suicide or intentionally harm himself. The Judge noted that “[t]o avoid any uncertainty, plan administrators should include an alcohol-related exclu-sion in all accidental death plans.”

In Cerona v. Reliance Std. Life Ins. Co., No 13cv184-MMA-DHB, 2014 U.S. Dist. LEXIS 184587 (S.D. Cal. Aug. 8, 2014) the insured was killed in a single vehicle accident when his car failed to negotiate a curve in the road and crashed into a tree. His blood-alcohol level was between 0.064% and 0.07% (under Califor-nia’s legal limit for driving). An eye witness told police Mr. Cerone was traveling at approximately 70 M.P.H., made a sharp right turn, colliding with a tree. The police investigation determined there was a soft dirt shoul-der on the highway, no visual obstructions nor contaminants on the roadway. The collision occurred on a clear day during daylight hours. Benefits were denied under an ERISA Accidental Death Plan pursuant to several exclusions, one of which read “[a] benefit will not be payable for a loss…. (6) to which the Insured’s acute or chronic alcoholic intoxication is a contributing factor…” Applying a de novo standard of review, the District Court upheld the denial.

The plaintiff argued evidence established Mr. Cerone, just prior to his collision, displayed no objec-tive signs of intoxication, had a BAC below California’s legal limit and there were other reasonable explana-tions for his losing control of his vehicle (i.e. using his cell phone while driving). The Court rejected these arguments. The plain and ordinary meaning of “intoxication” means having impaired physical and/or mental faculties as a result of consuming alcohol. Granted, Mr. Cerone did not visibly display signs of intoxication such as difficulty walking. However, evidence established that he consumed 3 martinis within 42 minutes, and then ate a sandwich. Approximately 20 minutes after he stopped drinking the accident occurred. Toxicol-ogy reports show that although a driver’s accident rate significantly increases with a BAC of 0.08% and higher, even a level of 0.05% still increases a driver’s risk of a single vehicle crash. These factors establish circumstan-tial evidence of a causal link between Mr. Cerone’s intoxication and fatal crash.

In Randall v. Life Insurance Company of North America, No. 11-CV-367-JHP, 2013 U.S. Dist. LEXIS 43287 (E.D. Ok. March 27, 2013), the exclusion for driving while intoxicated applied even to events immedi-ately following but directly related to a vehicle crash. Benefits under this ERISA governed Accidental Death


& Dismemberment Policy were denied under the Policy’s Intoxication Exclusion, which read “…benefits will not be paid for any…loss which, directly or indirectly, in whole or in part, is caused by or results from …operating any type of vehicle while under the influence of alcohol….Under the influence of alcohol, for pur-poses of this exclusion, means intoxicated, as defined by the law of the state in which the Covered Accident occurred.” The insured had been driving recklessly early one morning. When police arrived they found a truck which had struck a concrete barrier facing the wrong direction on the highway. No one was in the truck and the insured was later found at the bottom of the highway overpass. It appeared the insured had left his vehicle after the crash, stumbled over the edge of the bridge and fallen to his death. The toxicology report determined the insured’s BAC was 0.295%. Benefits were denied under this Exclusion because the fall was related to the insured’s drunk driving and crash. The insured must have become disoriented from the crash resulting in his fatal fall. Applying the arbitrary and capricious standard of review, the Court upheld the insurer’s denial of coverage. Texas law (where the crash occurred) defines driving intoxication as a BAC of 0.08% or greater. The insured’s conduct immediately after the crash was consistent with his severe intoxication. The exclusionary language makes clear that the drunk driving need not be the only or sole cause of the death. “[A]t a minimum [the insured’s death] indirectly and in part resulted from his intoxicated driving.” See also Horton v. Life Ins. Co. of N.A., No. ELH-14-3, 2015 U.S. Dist. LEXIS 39980 at *52 (D. Md. March 30, 2015) (“…notwithstanding a minimal burden of proof and a deferential standard of review, an insurer cannot merely rest upon blood alco-hol level and a generic list of alcohol’s effects to establish a causative link between intoxication and loss.”).

B. Alcohol/Non-Driving AccidentsIn Prelutsky v. Greater Ga. Life Ins. Co., No. 1:15-cv-628-WSD, 2016 U.S. Dist. LEXIS 103859 (N.D.

Ga., Aug. 8, 2016) the insured fell down a flight of steps while on a ski vacation in Aspen, Colorado, sustaining a serious brain injury. His blood alcohol level was 0.25%.

Based on this evidence, along with a doctor’s diagnosis of “intoxication”, accidental injury benefits were denied under an ERISA-governed plan which excluded coverage for disabilities “resulting from, or related to….any accident related to the voluntary influence of any….intoxicant…” Id. at *2. The denial letter, relying on two manuals, “Alcohol’s Effects” from Virginia Tech and Federal Aviation Regulation (CFR) 91.17: Alcohol and Flying, stated a blood-alcohol level between 0.20% and 0.29% caused symptoms, including stu-por, loss of understanding, impaired sensations, loss of consciousness, and severe motor impairment. Id. at *5.

The insured challenged this denial stating that a witness confirmed that he did not appear intoxi-cated. To the contrary, the insured may have tripped on his ski pants. The insurer responded to plaintiff ’s appeal by forwarding the medical records to an independent doctor. He opined that at the insured’s intoxica-tion level he would have needed assistance in walking and would most likely have experienced total mental confusion. Thus, the intoxication did contribute to the insured’s fall. Id. at *8. This lawsuit followed. The Dis-trict Court overturned the insurer’s denial and entered summary judgment in favor of the insured:

The blood test and a list of physical symptoms expected at a certain blood alcohol level are the type of evidence….required to be supplemented by a further investigation by the insurer to determine if the plaintiff ’s intoxication resulted in a degradation of his physical and cognitive abilities such that a causal link can reasonably be drawn between injury and intoxication. The Court concludes that Defendant failed to conduct a sufficient investigation that would allow the administrator to reasonably find a causal link between Plaintiff ’s alcohol consumption and his fall.

Id. at *22 (footnotes omitted).


C. Admissibility of Blood-alcohol Level Test ResultsThe insurer must, in order to enforce the Intoxication Exclusion, establish the insured was intoxi-

cated at the time of the accident. This element of proof ordinarily is satisfied by introducing the Police Crime Laboratory or Hospital Toxicology results taken from blood drawn from the insured. However, plaintiffs have contested generally the reliability of toxicology results as well as the methods and circumstances surround-ing the blood draw. The recent decision of Gueorguiev v. United States Life Ins. Co., No. 15-cv-13676, 2016 U.S. Dist. LEXIS 144469 (E.D. Mich., Oct. 19, 2016) challenged admitting this evidence without expert testimony. The Court noted that the insurer has the burden of proving the admissibility of evidence. A toxicology report unsupported by an expert witness is insufficient to prove reliability. Id. at *13. Specifically, that blood lev-els can rise after an accident and that other factors may produce a false blood-alcohol reading. These include “food intake, type and quantity of alcohol, weight, sex, body fat percentage, and rate of absorption.” Id. at *14-15. (Citation omitted.)

In Ciberay v. L-3 Commc’ns Corp., No. 3:12-cv-1218-GP C-MDD, 2013 U.S. Dist. LEXIS 81359 (S.D. Cal., June 10, 2013), the insured fell down a flight of stairs, suffering fatal injuries. His blood-alcohol level was 0.42%. Id. at *2. Accidental death benefits were denied under the ERISA plan based on an intoxication exclu-sion. Manuals indicated such a high level would cause “ataxia, tremors, disorientation, disturbed equilibrium and up to unconsciousness, depressed respiration, and even death.” Id. at *4. The Court rejected the insurer’s denial of benefits, stating the administrative record failed to establish the insured had actually suffered any of these effects. In fact, there is evidence that the insured was able to move all of his extremities on command, was alert and apparently able to stand. The insurer’s sole reliance of the general effects of such high blood alco-hol level without further investigation was improper. Thus, the insurer’s conclusion that this high alcohol level caused his fall was mere speculation. Id. at *14.

In Horton v. Live Ins. Co. of N. Am., No. ELH-14-3, 2015 U.S. Dist. LEXIS 39980 (D. Md., March 30, 2015), the insured fell from his sailboat and died from drowning. The Medical Examiner determined that his BAC was 0.13%. Id. at *1. Accidental death benefits under an ERISA plan were denied due to an Intoxica-tion Exclusion. The District Court denied cross motions for Summary Judgment. In part, the Court noted a significant time lag between the insured falling from the boat and the time his body was discovered. The par-ties each produced a forensic expert regarding what the insured’s actual blood-alcohol level was at the time of his death. Id. at *43-46. The plaintiff ’s expert opined the insured’s level could have been below 0.08%, which determines legal intoxication for operating a vehicle. Id. at *44. It would depend on a number of variables such as food and type of liquor consumed.

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