The Second Circuit recently issued a decision on autoerotic asphyxiation (which I will call AEA because typing autoerotic asphyxiation really difficult). The decision doesn’t break any new ground, but it’s as good an excuse as any to write about this never-boring topic.

For those of you that have led a highly sheltered life (or were not fans of INXS or Kung Fu) the idea behind AEA is that, if you restrict oxygen while masturbating, the resulting orgasm is better than it would have been had you been able to breathe. According to Wikipedia: “The carotid arteries (on either side of the neck) carry oxygen-rich blood from the heart to the brain. When these are compressed, as in strangulation or hanging, the sudden loss of oxygen to the brain and the accumulation of carbon dioxide can increase feelings of giddiness, lightheadedness, and pleasure, all of which will heighten masturbatory sensations.” Occasionally, electricity is also used, apparently to similar effect.

Which, of course, brings us to ERISA.

It probably won’t surprise you to learn that people engaging in AEA occasionally take the asphyxiation part too far, and end up dead. Nor should it surprise you that the relatives of those unfortunates might submit a life insurance claim. And I doubt that you will be shocked to hear that the claim administrators might consider death by AEA to be excluded from coverage as non-accidental (in the case of AD&D coverage), or intentionally self-inflicted (in the case of standard life coverage). Unfortunately, the discussions of coverage for death due to AEA are not nearly as titillating as you might expect. But there are some interesting ERISA issues and other highlights.

First, the Circuits who have dealt with this issue have developed a body of “federal common law” for ERISA disputes that can differ from non-ERISA law on the topic. As the Second Circuit explained:

In ruling against plaintiff in the present case, the district court relied in large part on the Fifth and Eighth Circuits’ decisions in Sims v. Monumental General Insurance Co., 960 F.2d 478, 480 (5th Cir.1992) (“Sims”), and Sigler v. Mutual Benefit Life Insurance Co., 663 F.2d 49, 50 (8th Cir.1981) (“Sigler”), which ruled that deaths caused by autoerotic asphyxiation were caused by self-inflicted injuries. Sims and Sigler, however, were not ERISA cases but rather were diversity actions controlled by state law. After Sims, the Fifth Circuit itself in Todd, dealing with autoerotic asphyxiation in the context of an ERISA-regulated insurance policy, declined to follow Sims and Sigler, instead applying federal common law principles developed for claims asserted under ERISA. See Todd, 47 F.3d at 1453 & n. 4.

Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d 246, 257 (2d Cir. 2004).

Second, the courts tend to use a subjective-objective test to determine whether the death resulting from AEA-gone-wrong was the result of intentionally inflicted injury:

In determining whether death, or the injury that caused death, was unexpected or unintentional, courts have undertaken an overlapping subjective and objective inquiry. The court first asks whether the insured subjectively lacked an expectation of death or injury….  If so, the court asks whether the suppositions that underlay the insured’s expectation were reasonable, from the perspective of the insured, allowing the insured a great deal of latitude and taking into account the insured’s personal characteristics and experiences. … If the subjective expectation of the insured cannot be ascertained, the court asks whether a reasonable person, with background and characteristics similar to the insured, would have viewed the resulting injury or death as substantially certain to result from the insured’s conduct.

Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1126 (9th Cir. 2002); See also, Critchlow, supra.

Third, when courts are conducting a de novo review of a claim denial, they tend to find that death was accidental or non-intentional under the subjective-objective test. Courts have routinely held that the person engaging in AEA doesn’t have a subjective expectation of death or injury; this is pretty obvious, as the subjective intent is orgasm, not death. Courts have also held that this subjective expectation was reasonable, especially where the decedent had successfully engaged in AEA in the past, or had introduced safety devices intended to prevent death. Padfield, supra; Critchlow, supra.

Fourth, and importantly, the answer is often different if the administrator has deference, mostly because there are a number of cases applying state law that found death from AEA to be an intentionally self-inflicted injury. As Padfield observed:

In the face of this divergence of opinion in cases applying state law, two federal district courts applying the federal common law of ERISA, under an abuse of discretion standard, have held that plan administrators did not act arbitrarily and capriciously in precluding recovery under “intentionally self-inflicted injury” exclusions in cases of autoerotic asphyxiation. See Hamilton v. AIG Life Ins. Co., 182 F.Supp.2d 39, 49-50 (D.D.C.2002) (“the fact that reasonable minds might differ on the question simply proves that it is not an abuse of discretion to decide that partial strangulation is an injury”); Fawcett, 2000 WL 979994 at *7 (“The possibility that reasonable minds may differ on this issue merely confirms that [the insurance company] did not act arbitrarily and capriciously” in finding that partial strangulation is an injury and that an “intentionally self-inflicted injury” exclusion precludes recovery).

Padfield v. AIG Life Ins. Co., 290 F.3d at 1128.

This notion was echoed by the recent Second Circuit case that prompted this post:

Hartford argues before this Court (and argued before the district court) that when Martin’s husband electrically shocked himself, he intended to injure himself, and therefore that any injury (even an unintended one) resulting from that act falls within the policy exclusion for intentionally self-inflicted injuries. While this interpretation of the policy exclusion differs from our approach in Critchlow v. First UNUM Life Insurance Co., 378 F.3d 246 (2d Cir.2004), Hartford’s interpretation may be a permissible reading of the policy’s language, which would require our deference.

Martin v. Hartford Life & Acc. Ins. Co., 2012 WL 1352875 (2d Cir. Apr. 19, 2012).

Fifth, even if you have deferential authority, you have to be careful how you phrase your decision. The Second Circuit remanded Martin because of the way Hartford explained its denial at the administrative level:

Hartford’s letter denying Martin’s appeal stated, “Mr. Martin’s death occurred while participating in an autoerotic activity which was a deliberate act on his part. While he may have previously performed this voluntary act without suffering any harm to himself, he should have known or reasonable [sic] anticipated that injury or death could result from his actions.” These interpretations of the “intentionally self-inflicted Injury” exclusion would exclude injuries resulting from merely negligent acts, even if the insured did not intend to inflict injury upon himself.

Martin v. Hartford Life & Acc. Ins. Co., supra.

As a final point, in perhaps the best quote in the jurisprudence of AEA, the eminent Second Circuit Judge Ellsworth Van Graafeiland who dissented in Critchlow, wrote a few months before his death at 89:

[U]ntil someone, whose opinion I respect, honestly informs me that as a general proposition, he or she would not hesitate to undergo a session of autoerotic asphyxiation through strangulation, I will not change my mind. Partial strangulation is an injury. A suicidal motive is not required.

Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d 246, 265 (2d Cir. 2004).