Word games: raising and resolving the shortcomings in accident-insurance doctrine that autoerotic-asphyxiation cases reveal.

• Author: Erman, Sam

TABLE OF CONTENTS INTRODUCTION I. AUTOEROTIC-ASPHYXIATION DEATHS ARE ACCIDENTAL A. Formal Analysis Reveals the Accidentalness of Autoerotic-Asphyxiation Deaths 1. Foreseeability 2. Stigma and Morality B. Accidental-Means Analysis Does Not Provide a Viable Alternative Analysis II. THE EFFECT OF INTENTIONALLY SELF-INFLICTED INJURY EXCLUSION CLAUSES CONCLUSION INTRODUCTION

As sirens wail and smoke appears on the horizon, one passenger remarks to the driver on the injuries the accident caused. Elsewhere a woman drops and shatters a water glass and the friend whose home she is visiting cuts herself on the shards; when she apologizes for the injury, her friend accepts. After all, anyone could see it was an accident. Both cases capture the apparent simplicity of identifying accidents and injuries. In many cases people intuitively and instantly know they have occurred. Yet it is much more difficult to explain why a child announces that she has had an "accident" when she has soiled herself or whether the addictive, life-threatening pleasure that accompanies cocaine use constitutes an "injury." Does a soldier who unintentionally triggers a landmine purposefully set by enemy troops or a drunk driver who wraps his car around a tree die accidentally? What distinguishes the injury a strangler causes from the experience of holding one's breath under water?

Courts, it turns out, have had many conflicting answers to these questions. The issue arises because most accident-insurance policies guarantee recovery for injuries and deaths occasioned by "external, violent and accidental means" but exclude intentionally self-inflicted injury. (1) In adjudicating such cases, courts must apply intuitions about the occurrence of accidents and injuries to a dizzying array of exotic fact patterns. (2) The insurance policies provide little guidance beyond the sparse language above. (3) And because courts have found it difficult to articulate the intuitions behind identifications of accidents and injuries, they have come to inconsistent results. (4)

Cases involving autoerotic-asphyxiation deaths illustrate the difficulty. Autoerotic asphyxiation is the practice of temporarily depriving oneself of oxygen while masturbating in order to increase sexual sensation, and death can result when the flow of oxygen is not restored in a timely manner. (5) Practitioners die either because they pass out before restoring the flow of oxygen or because a mechanical safety apparatus fails. (6) Courts have not characterized such deaths as suicides but have struggled with whether to deem them "accidents" that are covered by insurance policies.

To date, hard numbers on the death rate of autoerotic asphyxiation have been difficult to produce. The number of deaths per year resulting from autoerotic asphyxiation has been variously calculated to lie between forty and two-thousand. (7) But because of underreporting, the number of annual incidents or practitioners is largely unknown. (8) Thus the only firm statement one can make about autoerotic asphyxiation is that throughout the general population "death by autoerotic asphyxiation is statistically rare." (9) Nonetheless, experts and courts have tended to concur that most incidents of autoerotic asphyxiation end in survival and do not produce serious or permanent injury. (10) As a result of this information and its obscure and inconclusive nature, one cannot say that practitioners of autoerotic asphyxiation ought to expect to die. (11) Nonetheless, courts have reached disparate decisions on the practice's accidentalness and injuriousness. (12)

Most courts have assigned "accident" a lay definition when interpreting accident-insurance policies. (13) The difficulty has arisen in application. (14) As one justice of the California Supreme Court noted, most laypeople can agree on a heartland of cases that do and do not constitute accidents but cannot formulate the principles underlying their categorizations. (15) The problem is that while accidents clearly involve an unintended and unforeseen result, they do not include all such results. (16) Substantially all laypeople would likely agree, for instance, that an accident "is not ... a death from disease, nor a death from the natural causes of old age." (17) But when courts have tried to articulate how laypeople make these intuitive distinctions, they have generally failed. (18) As one rather resignedly explained, "Probably the best definition is Cardozo's tautology that an accident is what the public calls an accident, which aids jurists in deciding individual cases only slightly." (19) And because of this difficulty, they have come to inconsistent results in assessing the accidentalness of autoerotic-asphyxiation deaths. (20)

Most accident-insurance policies also include a clause that forbids recovery where the harm results from an intentionally self-inflicted injury. (21) To trigger the clause, the insured must intentionally injure herself in a way that results in a further, unintentional injury. For instance, a person who slit her wrists as a cry for help but then bled to death on the way to the hospital would not recover for either the intended loss of blood (nonaccidental) or the accidental fatality that followed (result of intentionally self-inflicted injury). Courts have divided over whether such clauses preclude recovery in cases of autoerotic-asphyxiation deaths. Some have concluded that decedents intentionally injure themselves when they temporarily cut the supply of oxygen to their brains. (22) Others have disagreed, holding that temporary and voluntary deprivation of oxygen does not constitute an injury within a lay definition. (23) A third group has found the question sufficiently close to allow insurers to settle it under clauses granting them the right to interpret policy terms. (24) As with accidents, the controversy arises from difficulties in defining a common and seemingly uncomplicated word.

This Note argues that autoerotic-asphyxiation deaths are accidents and not the results of intentionally self-inflicted injuries. Part I formally analyzes accident-insurance case law to show that current, viable approaches to accident insurance indicate that autoerotic-asphyxiation deaths are accidental. Part II claims autoerotic-asphyxiation deaths should not trigger intentionally self-inflicted-injury exclusion clauses because the practice does not intentionally injure. This Note concludes beneficiaries should recover when accident-insurance policyholders die during autoerotic asphyxiation.

1. AUTOEROTIC-ASPHYXIATION DEATHS ARE ACCIDENTAL

   This Part advances a new test for determining whether death from autoerotic asphyxiation is accidental and contends that this new test is superior to alternative approaches. (25) The first step under this test is resolving whether death is the expected result of the practice. If not, courts should then grant recovery unless they determine autoerotic asphyxiation constitutes either a crime or a "high-risk act of bravura." A high-risk act of bravura is (1) an extremely dangerous activity; (2) that practitioners engage in for the purpose of exposing themselves to risk; and (3) that serves no valuable end. (26)

   In defending the above test, this Part argues that it better reflects the actual practices of courts than do the workable alternatives that courts purport to apply. Section I.A argues that in most cases, courts have found unexpected results--like deaths during instances of autoerotic asphyxiation--to be accidents. It then observes that courts have hindered recovery in cases involving certain types of stigmatized activity, but explains that the stigma that attaches to autoerotic asphyxiation is of a different type. Section I.B contends that although some courts have advanced an alternate approach known as "accidental-means analysis," the analysis depends upon a distinction without a difference and thus provides no grounds upon which to reach a contrary result. This Part concludes that autoerotic-asphyxiation deaths are accidents.

   1. Formal Analysis Reveals the Accidentalness of Autoerotic-Asphyxiation Deaths

      This Section proposes a test that reflects the current practices of courts. Section 1 explains that courts generally grant recovery in cases involving unexpected results. This encompasses the deaths that arise from autoerotic asphyxiation. Section 2 observes that courts have hindered recovery in cases involving crimes or high-risk acts of bravura. Because most courts have not explicitly acknowledged the role that these, but not other, stigmatized activities have factored into their considerations, their analyses of the issue have not been formal.

      This has created problems in autoerotic-asphyxiation cases, where courts have observed the stigma that attaches to the activity and then implicitly and unconvincingly analogized it to a crime or high-risk act of bravura. This Section illuminates why only crimes and high-risk acts of bravura, and not other sources of stigma, should and do impede recovery. Consequently, courts ought to grant recovery in autoerotic-asphyxiation cases.

      1. Foreseeability

         In many cases, laypeople's determinations of accidentalness hinge on the likelihood that the injury-causing activity would cause a harm similar to the one that occurred. (27) This Note maintains that as a general matter, harms are only so likely to occur as to be nonaccidental if they are the expected result of an activity. This standard is consistent with courts' historical and modern tendencies. While different modern courts set the level of foreseeability necessary to preclude recovery at various levels, (28) recent courts have returned to definitions of accident that exclude harms on foreseeability grounds only when they represent the expected outcome of the injury-causing event. Federal courts have led and exemplified the change. (29) Under the Employee Retirement Income Security Act of 1974 ("ERISA"), federal common law...