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Zachery Hullinger, Associate Member, University of Cincinnati Law Review
I. Introduction
Life insurance policies provide some measure of solace and stability to grieving families, but the collection on these policies is not always assured. Accidental death insurance sometimes contains an exception for “intentionally self-inflicted injuries.”[1] Federal circuit courts have recently split on the applicability of this exception in instances where death resulted from autoerotic asphyxiation.[2] Autoerotic asphyxiation is “the practice of temporarily depriving oneself of oxygen while masturbating in order to increase sexual sensation.”[3] Those engaging in the activity do not expect to die, but the failure to restore oxygen flow can result in death—a death that may be regarded as accidental. But the decedents undeniably place themselves at risk, and some courts have held that despite the death being unintentional, insurance recovery is barred by the exception for intentionally self-inflicted injuries.
Not only do these cases present unique factual situations that strain the concepts of accident and injury, judges may also have difficulty empathizing with them. Accidental deaths are typically the sort of case that may tug at a judge’s heartstrings, but to most judges, the practice of autoerotic asphyxiation probably appears depraved and utterly foreign. In these cases, it is exceedingly important to disentangle the legal questions from their factual underpinnings, and to frame those questions without prejudice. Part II of this article reviews the three cases that comprise the current circuit split. Part III discusses the correct interpretation of autoerotic asphyxiation under accidental death insurance policies, determining that it does not constitute an intentionally self-inflicted injury.
II. The Circuit Split
Three circuit courts have confronted insurance benefits covered by the Employee Retirement Income Security Act (“ERISA”), a federal statute that governs health insurance policies.[4] The Ninth Circuit, in Padfield v. AIG Life Ins. Co.,[5] and the Second Circuit, in Critchlow v. First UNUM Life Ins. Co. of Am.,[6] have held that the insurance policy exclusions for intentionally self-inflicted injuries did not apply to deaths to by autoerotic asphyxiation. The Seventh Circuit recently disagreed in Tran v. Minnesota Life Ins. Co.[7] This section will discussion each case in chronological order.
A. Padfield v. AIG Life Ins. Co. (2002)
In Padfield, the plaintiff’s husband was found dead in the back of a van, hung by a necktie, and surrounded by pornographic materials.[8] The coroner’s report stated that the death was the accidental result of autoerotic asphyxiation.[9] After Mrs. Padfield claimed benefits from her husband’s death insurance policy, AIG invoked exceptions in the policy that denied recovery for death resulting from suicide or intentionally self-inflicted injury.[10] The Ninth Circuit first dispensed with the suicide exclusion by applying a dual subjective and objective inquiry, holding that the decedent had a subjective expectation of survival, and that this expectation was objectively reasonable since death was not “substantially likely” to result from the conduct.[11]
The court then turned to the intentionally self-inflicted injury exception, where it framed the question as being “whether the physical consequences that Mr. Padfield intended were injuries.”[12] The court, applying the dual subjective and objective inquiry, determined that the decedent intended only for a temporary deprivation of oxygen and euphoric light-headedness, and that injuries were not “substantially certain” to result from his conduct.[13] Because courts interpret terms in ERISA policies “in an ordinary and popular sense as would a person of average intelligence and experience,”[14] the Ninth Circuit held that these intended results would not have constituted an injury “as that word is commonly defined.”[15] The dissent argued that intentionally restricting “the flow of oxygen to the brain by self-asphyxiation, even without intent to be fatal, is to inflict, intentionally, injury upon oneself.”[16]
B. Critchlow v. First UNUM Life Ins. Co. of Am. (2004)
The Second Circuit struggled mightily with autoerotic asphyxiation in Critchlow. It initially held opposite to the Ninth Circuit,[17] a decision it later withdrew and vacated while deciding whether to rehear the case en banc, after one judge changed his mind and flipped the original 2-1 holding.[18] In Critchlow, the decedent had tied ligatures to various parts of his body to limit oxygen flow, along with counter weights attached to the cords that functioned as an escape mechanism.[19] However, the escape mechanism failed to save him. The decedent had first engaged in these activities when he was only twelve or thirteen years old, and had presumably continued throughout the nearly twenty years before his death.[20] UNUM denied coverage under the decedent’s life insurance policy, citing the exception for intentionally self-inflicted injuries.[21]
Like the Ninth Circuit, the Second Circuit asked whether the decedent’s subjective intent to survive was objectively reasonable.[22] The court separated the total strangulation from partial strangulation, noting that a focus on total strangulation confuses the intent of Critchlow’s activities with their result.[23] The court ultimately held that the only result of properly practiced autoerotic asphyxiation is temporary lightheadedness, and that a reasonable person would not ordinarily understand this to constitute an “injury.”[24] The dissenting judge, who had enjoyed majority status in the vacated opinion, would have held partial strangulation to be an injury, and said he would not change his mind “until someone, whose opinion I respect, honestly informs me…he or she would not hesitate to undergo a session of autoerotic asphyxiation through strangulation.”[25]
C. Tran v. Minnesota Life Ins. Co. (2019)
The dissents in Padfield and Critchlow certainly foreshadowed an eventual circuit split, which the Seventh Circuit delivered fifteen years after Critchlow. In Tran, the decedent was found hung from a noose attached to the ceiling beam in his basement, in what the police had initially deemed a suicide.[26] The presence of sexual paraphernalia and a towel wrapped around decedent’s neck, presumably used as a safety precaution, ultimately led the medical examiner to conclude that the decedent had died performing autoerotic asphyxiation.[27] The Seventh Circuit split its analysis of the intentionally self-inflicted injury exception in two parts, by first asking whether autoerotic asphyxiation is an “injury,” and then determining whether that injury was “intentionally self-inflicted.”[28]
The court first confronted the other circuits’ separation of the act into partial and total strangulation, stating that the strangulation never shifted from partial and nonlethal to lethal, but rather that one act of autoerotic asphyxiation had killed the decedents. But the court said that even if the act is viewed as one of partial strangulation, it is still an injury, as “an ordinary person would consider choking oneself by hanging from a noose to be an injury.”[29] The court further supported this claim by noting that strangulation is a criminal offense[30] and that autoerotic asphyxiation is a sexual masochism disorder.[31] After holding that autoerotic asphyxiation constituted an injury, the court simply determined that the decedent had indeed intended to perform this action, and therefore intended to injure himself.[32] The dissent contended that the decedent’s “conduct was undoubtedly risky but was not inherently injurious,” and that the majority incorrectly concluded “that any amount of asphyxiation is injurious.”[33]
III. Discussion
To understand the self-inflicted injury exception, it may be helpful to first separate it from the unusual context of autoerotic asphyxiation; consider the following example provided by Fawcett v. Metropolitan Life Insurance Co.:
An insured might so wish to avoid continuing on his job that he plans to shoot himself in the foot, thus intending to render himself unable to work, but yet alive. . . . However, upon successfully shooting himself in the foot, the injured loses consciousness due to the extreme pain and the gruesome sight of his damaged appendage. Unfortunately, no one hears the shot, and no one returns home to the home to discover the insured until many hours have passed, during which time the insured has bled to death. . . . [T]he insured may not have committed suicide, but his death was certainly caused “wholly or partly, directly or indirectly, by… [an] intentionally self-inflicted injury.[34]
Autoerotic asphyxiation cases are similar in that the decedent did not intend the ultimate result—death. But the question under the intentionally self-inflicted injury exception is whether they intended the underlying injury that resulted in their death, or, to borrow from the above example, whether they intended to shoot themselves in the foot, and whether that shot qualifies as an injury.
The Seventh Circuit’s separation of injury and intent was helpful, but backwards. The decedent could really only intend one result—asphyxiation—from his actions, despite the existence of multiple potential injuries that the decedent never intended. The inquiry should first be filtered through the question of the intent to distill the sole pertinent action that will then be assessed under the injury prong of the analysis. This failure to lead with the intent prong also explains why Tran rejected the delineation between partial and total strangulation. The other circuits never explicitly broke the act of strangulation into different “stages,” but it is necessary to focus on partial strangulation since that was the decedent’s intent, though temporary strangulation may be a more precise phrasing.[35]
In all cases, the decedent’s intent was to asphyxiate himself only to the point of sexual pleasure. The cases then ask whether this subjective intent was objectively reasonable. Since the prudent practice of autoerotic asphyxiation involves safeguards to prevent lethal strangulation and damage to the neck, it is difficult to say that decedents’ expectation of nonlethal asphyxiation was objectively unreasonable. The action is undoubtedly risky, as Judge Bauer noted in Tran, but the expectation of mere temporary asphyxiation is not unreasonable.[36] The inquiry then turns to whether temporary asphyxiation is an injury in and of itself.
The Seventh Circuit found injury through its visceral depiction of autoerotic asphyxiation, and by making commonsense appeals. Tran held that “an ordinary person would consider choking oneself by hanging from a noose to be an injury,”[37] and went further to say that “[s]trangling oneself to cut off oxygen to one’s brain is an injury, full stop.”[38] This depiction is evocative and has an intuitive appeal. But it fails to specify the injury. While taking issue with the loss of oxygen to the brain, the court doesn’t specify exactly how the brain is impaired or injured. If it merely results in lightheadedness, as the other circuits have indicated, an ordinary person would not consider that to be an injury.
Consider oxygen deprivation in other contexts, removed from any images of hanging by a noose. Imagine a group of kids competing to see how long they can hold their breath underwater. We would not say that their choice to deprive themselves of oxygen was an injury. If someone were to choke on food for an extended period, but eventually dislodge it from their throat and continue their day without incident, we would not say that they were injured merely because they were temporarily deprived of oxygen.
The Seventh Circuit’s additional support, citing strangulation as a criminal offense, is also not persuasive. Not only is this not probative as to whether the act is injurious, but self-strangulation is also worlds apart from strangulation by another. The former is voluntary, controllable, and nonviolent, while the latter is often violent, likely results in bruises and marks to the neck, and infringes on the victim’s liberty interests.
IV. Conclusion
Death by autoerotic asphyxiation pushes the boundaries of what society considers to be an accident and an injury. But oxygen deprivation and strangulation, while potentially lethal, are not inherently injurious, even if the ordinary person may seek to avoid them. After disentangling the legal questions from the unusual situations underlying these accidental death insurance claims, it becomes apparent that the decedents do not intentionally injure themselves, and the beneficiaries should be able to recover from their accidental death policies.
[1] Life insurance policies sometimes contain Accidental Death & Dismemberment (“AD&D”) policy riders, which usually contain exceptions for suicide and deaths resulting from intentionally self-inflicted injury. See Tran v. Minnesota Life Ins. Co., 922 F.3d 380, 381-82 (7th Cir. 2019).
[2] Id. at 386.
[3] Sam Erman, Word Games: Raising and Resolving the Shortcomings in Accident-Insurance Doctrine That Autoerotic-Asphyxiation Cases Reveal, 103 Mich. L. Rev. 2172, 2173 (2005).
[4] The Fifth and Eighth Circuits have applied state law in resolving insurance benefits for death resulting from autoerotic asphyxiation. See, e.g., Sims v. Monumental Gen. Ins. Co., 960 F.2d 478 (5th Cir. 1992); Am. Bankers Ins. Co. of Fla. v. Gilberts, 181 F.3d 931 (8th Cir. 1999).
[5] Padfield v. AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002).
[6] Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d 246 (2d Cir. 2004).
[7] Tran v. Minnesota Life Ins. Co., 922 F.3d 380 (7th Cir. 2019).
[8] Padfield, 290 F.3d at 1124.
[9] Id.
[10] Id.
[11] Id. at 1127.
[12] Id. at 1129.
[13] Id.
[14] Id. at 1124 (citing Babikian v. Paul Revere Life Ins. Co., 63 F.3d 837, 840 (9th Cir.1995)).
[15] Id. at 1130.
[16] Id. at 1130 (Leavy, J., dissenting).
[17] Critchlow, 340 F.3d at 130 (opinion withdrawn and vacated on reconsideration, 378 F.3d 246 (2d Cir. 2004)).
[18] Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d 246, 249 (2d Cir. 2004).
[19] Id. at 249-50.
[20] Id. at 260 (“Critchlow’s father’s affidavit indicated that Critchlow had practiced autoerotic asphyxiation at as early as the age of 12 or 13”).
[21] Id. at 250.
[22] Id. at 259.
[23] Id. at 260.
[24] Id. at 262.
[25] Id. at 265 (Van Graafeiland, J., dissenting).
[26] Tran v. Minnesota Life Ins. Co., 922 F.3d 380, 381 (7th Cir. 2019).
[27] Id.; Id. at 388 (Bauer, J., dissenting) (noting that decedent had put in place prophylactic measures to mitigate risk, including “a towel wrapped around his neck, his foot resting on a step stool, and a possible release mechanism”).
[28] Id. at 382.
[29] Id. at 384.
[30] Id.
[31] Id. at 385 (“Some people enjoy harming themselves. That harm is still an injury.”).
[32] Id. at 385-86.
[33] Id. at 388-89 (Bauer, J., dissenting).
[34] Fawcett v. Metro. Life Ins. Co., No. C-3-97-540, 2000 U.S. Dist. LEXIS 10061, at *18-19 (S.D. Ohio June 28, 2000) (quoting Shepherd v. Metro. Life Ins. Co., 1995 U.S. Dist. LEXIS 22203, at *14 (S.D. Ohio Mar. 9, 1995)).
[35] Critchlow, 378 F.3d at 260 (warning that a focus on total strangulation “tends to merge the concepts of intent and result.”)
[36] Tran, 922 F.3d at 388 (Bauer, J., dissenting).
[37] Id. at 384.
[38] Id. at 386.
