Those of you blessed/cursed with long memories will recall that back in the late 70’s, early 80’s, we ran a series of articles on autoerotic asphyxiation (AEA) which asked the question, was it accidental or was it suicidal? At about the time that the legal discussion was heating up to a room temperature level, the cases just disappeared off the radar screen. I blamed this on the federal court’s new-found delight in issuing unpublished opinions. (A legal oxymoron.)
However, so far this year we have spotted two such opinions: one from our own Ninth Circuit and one from the Southern District of New York. Naturally, the conclusions reached are as far apart legally as they are geographically. What makes this of more than passing interest is that both cases involve ERISA insurance policies. As you know, under ERISA, the federal courts are charged with developing a uniform common law for ERISA insurance policies. Given the maverick reputation of the Ninth Circuit, the likelihood that it will be swayed or influenced by some of the conservative or reactionary circuits back east is between slim and none.
And that, dear reader, spells "Conflict." Conflict between the circuits. And when you have a conflict between the circuits on a federal question like ERISA, do you know who has to resolve the conflict? Yes! The United States Supreme Court!
Oh, I can feel the excitement in the air that day as the widows and lawyers assemble with their silken ropes, luggage straps, neckties, and other miscellaneous homemade fail-safe devices (which failed). Since the real supremes still refuse to televise their arguments (unlike those folks in Olympia who want the voters to know what they have to put up with), this piece of legal history will be performed before a live (mostly) albeit small audience.
The first case (Cronin v. Zurich American Ins. Co., 189 F. Supp. 2d 29 (S.D.N.Y. 2002)) came out in January. It involved Phil, who was found dead in his hotel room while on a business trip. He was hanging by his neck from a luggage strap suspended from a hook on the back of the bathroom door. The coroner listed it as a "botched autoerotic asphyxiation." Judge Hellerstein tells us that AEA is the practice of limiting the supply of oxygen to the brain in an attempt to heighten sexual pleasure by exerting pressure on the arteries of the neck while engaging in sexual self-stimulation.
There were two accidental death policies on Phil, and his widow wanted her money. The judge said that the widow could not have the money because Phil’s death was not accidental, and it resulted from self-inflicted injury.
The judge’s grasp of contemporary recreational activities can be seen in this pronouncement:
"Accidental death insurance policies are not underwritten to reward willful deviances that risk the practitioner’s own life." That would pretty much exclude (without benefit of an exclusion) mountain climbing, technical rock climbing, SCUBA diving, hang-gliding, ultra-light flying, and walking your dog in Central Park after dark.
On the other hand, we have the 2-1 decision from the Ninth Circuit (Padfield v. AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002)). The vast difference in point of view between the east coast and the best coast is demonstrated initially by the fact that Judge Hellerstein’s definition of AEA is incorrect from an anatomical point of view, to wit: pressure is not applied to the arteries going to the brain; pressure is applied to the veins carrying blood from the brain. Now, perhaps some might call that the picking of nits. But in my view, if you cannot get the details of the procedural mechanism correct, how in the world will you be able to construct a stable legal edifice thereupon?
In this case, Gerald told his wife he was going out for cigarettes. No, no, no. Wrong story. Gerald said he was going to the cleaners. He never returned. Three days later, CHPs noticed his van on an empty street next to a vacant lot. Gerald was sitting behind the passenger seat with one end of a necktie around his neck, and the other end tied to the sliding door hinge. Gerald was dead. The coroner said the death appeared to be the "accidental" result of AEA. His widow said she thought he had stopped doing that.
There was an accidental death policy purchased by the employer, which made it an ERISA policy. The parties ended up in court, and the district court ruled that death by AEA was not suicide but fell within the exclusion for intentionally self-inflicted injury.
After writing an opinion which appears to cite and analyze every U.S. case which has considered the question (including Cronin), the Ninth Circuit concluded that the suicide exclusion did not apply. As to the other exclusion, the court pointed out that "voluntary risky acts resulting in injury are not necessarily acts that result in ‘intentionally self-inflicted injury.’"
Stay tuned. I am sure that with both Cronin and Padfield being published, other courts will be losing their reticence about publishing their views on this topic.
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