Shirley M. Critchlow v. First Unum Life Insurance Co. Of America

Judge KEARSE dissents in a separate opinion.

VAN GRAAFEILAND, Senior Circuit Judge.

On February 26, 1999, David Critchlow, the thirty-two year old son of Shirley Critchlow, died as the result of autoerotic asphyxiation, i.e. strangulation by a self-imposed noose around his neck. The groove in David’s neck that was caused by the strangulation is clearly visible in a postmortem photograph taken by the police, a tragic depiction that speaks for itself.

In the report of Dr. Ben Blecker, the prosecutor assigned in connection with the death, the Diagnostic and Statistical Manual of Mental Disorders, 3rd Edition, is quoted as follows:

In DSM3R the current psychiatric diagnostic manual, asphyxiophilic (autoerotic asphyxiation) is classified as a particularly dangerous form of sexual mannerism in which arousal is induced by depriving the brain of oxygen in one or several ways: hanging, strangulation, chest compression, covering the mouth and nose with plastic bag or mask.

The danger inherent in this unfortunate practice is demonstrated by the fact that approximately 2000 deaths per year have been calculated to result therefrom. See Lonergan v. Reliance Std. Life Ins. Co., No. CV-96-11832-PBS (D. Mass May 29, 1997).¹

David’s employer carried a group accidental death and dismemberment insurance policy with First UNUM Life Insurance Company which covered David and named Shirley as beneficiary of any award for David’s death. The policy provided, however, that the insurer “will not pay if loss is caused by .. .intentionally self-inflicted injuries” and that a compensable loss “must result directly and independently of all other causes from accidental bodily injury.”

There is no dispute concerning David’s acts that preceded his death. He retired to his locked bedroom in his parents’ empty house, disrobed completely and attached an intricate, home-made harness consisting of ropes, weights, and counter-weights leading to a noose around his neck. Doctor Blecker concluded in his report that David “died because of practicing so-called ‘autoerotic asphyxiation’.”

In a well-written and considered opinion, Chief Judge Larimer found that David’s death was the result of a self-inflicted injury and granted First UNUM’s motion for summary judgment. See Critchlow v. First UNUM Life Ins. Co. of America, 198 F.Supp.2d 318, 323 (W.D.N.Y.2002). The district court found the “intentionally self-inflicted injuries” clause to be unambiguous, and consequently concluded that it should be accorded its commonly understood, accepted meaning. Id. at 326. The district court rejected appellant’s argument that because the decedent intended to constrict his windpipe, but did not intend to lose consciousness and die from asphyxiation, he did not die from “intentionally self-inflicted injuries.” Id. at 323. The court found that decedent’s intentional act of constricting his windpipe — with the purpose of depriving his brain of oxygen— indeed caused him injury: “it led directly to his death.” Id. The court explained, “by constricting the flow of oxygen to his brain, to the point where loss of consciousness and death were certain to occur if the pressure were not released in a relatively short time, the decedent did injure himself. He simply believed (apparently) that he could bring that injury to a halt before the injury became life-threatening. That his belief proved incorrect does not save plaintiffs claim.” Id. at 327.

We agree that the decedent’s intentional act of constricting his trachea with the purpose of depriving his brain of oxygen — that is, strangulation — was an intentionally self-inflicted injury. Certainly, when the constriction produced a physiological effect on his brain and his body, an injury within the meaning of the exclusion occurred. See Sims v. Monumental Gen’l Ins. Co., 960 F.2d 478, 480 (5th Cir.1992), aff'g 778 F.Supp. 325 (E.D.La.1991) (affirming denial of accidental death benefits under policy that excluded coverage for losses caused by “intentionally self-inflicted injuries]” where decedent had died from autoerotic asphyxiation; holding that “[pjartial strangulation is an injury in and of itself’); Sigler v. Mutual Benefit Life Ins. Co. 663 F.2d 49, 50 (8th Cir.1981) (per curium). And it is undisputed that decedent’s injury caused his death. That decedent had engaged in this very activity on prior occasions without apparently serious or permanent adverse consequences does not mean that the activity did not injure him, nor does the fact that he did not intend to die make the injury any less intentional.

We agree with the Fifth and Eighth Circuits that the deliberate constriction on one’s windpipe with the purpose of depriving the brain of oxygen is an intentionally self-inflicted injury within the meaning of the policy’s exclusionary clause. See Sims, 960 F.2d at 480; Sigler, 663 F.2d at 50. In reaching this conclusion, we do not, and need not, determine whether the death was also “accidental.”

We have reviewed appellant’s remaining arguments and find them to be without merit.² Accordingly, we AFFIRM the district court’s order granting appellee summary judgment and denying appellant’s motion for reconsideration.

Addendum

VAN GRAAFEILAND, Senior Circuit Judge:

It is not a pleasant task to cross verbal swords with a judge as charmingly perspicacious as my colleague Judge Kearse. This is particularly true in the instant case, where I could accomplish the correct result simply by quoting Judge Edward Leavy’s fine dissenting opinion in Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1130-34 (9th Cir.2002), the case upon which Judge Kearse so heavily relies. Judge Leavy cited four ERISA cases in which death resulting from autoerotic asphyxiation was excluded from coverage because the policies at issue contained a self-inflicted injury exclusion. Id. at 1131. One of these is the case we now are reviewing. I add the following paragraphs to what I already have written only to emphasize our firm support for Judge Larimer’s opinion despite Judge Kearse’s opposition.

Judge Kearse’s dissent herein consists in large part of excerpts from affidavits that are not part of the administrative record. Judge Larimer rejected these affidavits because the established law instructed him to do so absent good cause, and no good cause was shown. Critchlow, 198 F.Supp.2d at 322. Judge Kearse does not appear to challenge the propriety of Judge Larimer’s discretionary decision to exclude these documents. So far as I can see, she simply ignores it.

The autopsy of the deceased, which was part of the evidence considered by the ERISA appeals committee, reads, in part, as follows: “There is blood on the face coming from mouth. Head is cyanotic. In the mouth there is masking tape with attached blue straps. Pharynx is hemorrhagic. ... There is a deep groove around neck.” J.A. at 169. Moreover, the effects of the decedent’s handiwork are plainly visible in the autopsy photographs that also are contained in the administrative record. Whether the gruesome effects thus depicted resulted from partial or complete strangulation, there can be no question that they were self-inflicted.

Judge Kearse argues that we err by failing to interpret the exclusionary clause at issue “in an ordinary and popular sense as would a person of average intelligence and experience.” On the contrary, we hold, as did the district court, that when an individual purposely places a noose around his neck, purposely employs that noose to cut off his breathing, and ultimately dies from the very strangulation which he himself initiated, that person has dies of an “intentionally self-inflicted injury” as that term is ordinarily understood.

1 . Similar calculations presented to the court below were 500-1000 deaths per year. However, no matter which figures are more nearly correct, the practice obviously is a dangerous one.

2 . We conclude that the district court did not abuse its discretion in denying appellant's motion for reconsideration, in which it proffered expert affidavits that were not before the plan administrator and were outside of the administrative record. The court stated that its decision would not be altered even if it were to consider the affidavits; their assertions conflicted with the plain language of the policy exclusion and thus did not raise an issue of fact as to the nature of decedent’s death. The decision whether to consider information outside the administrative record is a discretionary one even where there is "good cause.” See DeFelice v. American Int’l Life Assurance Co. of N.Y., 112 F.3d 61,66 (2d Cir.1997). Because the court concluded that the affidavits would not alter its decision, it was not an abuse of discretion to deny the motion for reconsideration.