Critchlow v. First Unum Life Ins., America
| Decision Date | 09 August 2004 |
| Docket Number | No. 02-7585.,02-7585. |
| Parties | Shirley M. CRITCHLOW, Plaintiff-Appellant, v. FIRST UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the United States District Court for the Western District of New York, David G. Larimer, J.
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Irving Pheterson, Rochester, New York (Pheterson & Pheterson, Christopher J. Calabrese, Elliot, Stern & Calabrese, Rochester, NY, on the brief), for Plaintiff-Appellant.
Paul K. Stecker, Buffalo, New York (Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, NY, on the brief), for Defendant-Appellee.
Before: VAN GRAAFEILAND, KEARSE, and B.D. PARKER, Circuit Judges.
Plaintiff Shirley M. Critchlow appeals from a judgment of the United States District Court for the Western District of New York, David G. Larimer, Chief Judge, dismissing her complaint seeking recovery from defendant First UNUM Life Insurance Company of America ("UNUM") of benefits on an accidental-death-and-dismemberment insurance policy covering her son Daniel Critchlow ("Critchlow"), who died during the practice of autoerotic asphyxiation. The district court granted UNUM's motion for summary judgment dismissing the complaint, and denied plaintiff's cross-motion for summary judgment in her favor, on the ground that the UNUM policy excluded coverage for losses resulting from intentionally self-inflicted injuries and that autoerotic asphyxiation is an intentionally self-inflicted injury. On appeal, plaintiff contends that the district court erred in concluding that the practice of autoerotic asphyxiation is intended to inflict injury.
On August 12, 2003, a divided panel of this Court, in an amended majority opinion by Judge Van Graafeiland, with B.D. Parker, J., concurring and Kearse, J., dissenting, concluded that the dismissal of the complaint should be affirmed. On August 27, 2003, a judge of this Court requested a poll to have the appeal reheard en banc. The mandate was issued inadvertently on August 28, 2003, and was recalled on June 21, 2004, in light of the pendency of the en banc poll. While the en banc poll was pending, Judge Parker reconsidered his earlier decision and voted to reverse the judgment. Therefore, with the issuance of the present opinion, the earlier decision in this case, reported at 340 F.3d 130 (2003), is vacated. For the reasons that follow, the judgment is reversed, and the matter is remanded for entry of judgment in favor of plaintiff.
The facts are not disputed. Plaintiff was the named beneficiary of a group accidental-death-and-dismemberment insurance policy covering Critchlow, issued by UNUM (the "Policy" or "UNUM Policy") to Critchlow's employer as part of an employee benefit plan covered by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461. The Policy's exclusions section stated, inter alia, that UNUM "will not pay if the loss is caused by: 1) intentionally self-inflicted injuries[, or] ... 5) illness [or] disease." (UNUM Policy at 2.) The Policy term was December 1, 1998, to December 1, 1999.
In the early morning hours of February 27, 1999, Critchlow, age 32, was found dead in his bedroom. He was unclothed lying on the floor, with ligatures tying various parts of his body. The coroner's report concluded, and it is undisputed, that his death resulted from his practice of autoerotic asphyxiation, i.e., the practice of limiting the flow of oxygen to the brain during masturbation in an effort to heighten sexual pleasure.
Plaintiff applied for death benefits under the accidental death terms of the Policy. She attached copies of the autopsy report on Critchlow and the reports of two members of the County Sheriff's department — Deputy Kevin Kuntz and Investigator R. Hetzke — who had been summoned to the scene. The latter reports stated, in part, as follows:
Daniel had apparently been in the middle of an auto-erotic act. He was tied up in various places by cord, and these cords had evidently been attached to a set of counter weights which were meant to give him an "out" if he started to lose consciousness.
(Report of Dep. Kevin Kuntz dated February 27, 1999 ("Kuntz Report"), at 2.).
It appears that the victim was engaged in autoeroticism. It does not appear that he intentionally took his life as he has escape measures built into his binds. Dr. Blasczak responded to the residence for the Coroner's office. He concurred with writers [sic] assessment of the cause of death.
....
The writer retrieved a sales receipt from the victim's wallet. The deceased made a grocery purchase ... at 6:30PM. From items left in the kitchen, it appears that victim was planning supper. Writer also located a receipt dated 11/20/98 ... for clothes line.
....
2/28 Writer spoke with Richard Critchlow, the deceased's father. He had been out of town at the time of his son's death. He stated that while unnatural he understood the events leading up to Daniel's death and the cause of his death. Mr. Critchlow... related an incident that occurred approx. 15 years ago where he had found Daniel after he had bound himself up.
2/28 Writer spoke with Dr. Hannan, who stated that death certificate states that cause of death was accidental asphyxiation.
(Report of Inv. R. Hetzke dated March 1, 1999 ("Hetzke Report"), at 1-2.)
UNUM, in a letter to plaintiff dated July 7, 1999 ("UNUM July 1999 Letter"), denied her application on the grounds that Critchlow's death was not accidental and was a loss caused by intentionally self-inflicted injuries. It stated, in pertinent part, that
[b]ased upon our investigation into the facts and circumstances of the death of the insured and our comprehensive review of prior case law, we have concluded that the death of the insured did not result directly and independently of all other causes from accidental bodily injury.
Additionally, the Policy contains an Exclusion which states:
"We will not pay if the loss is caused by:
(1) Intentionally[ ] self-inflicted injuries;["]
Our investigation further reveals that the death of the insured falls within the above Exclusion for intentionally self-inflicted injuries.
For the foregoing reasons, First UNUM denies all coverage under the Policy and declines to pay any benefits thereunder.
(UNUM July 1999 Letter at 1-2.) UNUM stated that its decision was "not a waiver of any and all other rights and defenses [it] may have under the provisions of th[e P]olicy." (Id. at 2.)
In a September 1, 1999 letter to UNUM from plaintiff's attorney Richard A. Calabrese, plaintiff appealed the denial to UNUM's appeals committee ("September 1999 Appeal Letter" or "Appeal Letter"). The Appeal Letter described in detail the circumstances of Critchlow's death, provided medical and technical information on the practice of autoerotic asphyxiation, cited law enforcement officials' conclusions that Critchlow's death was in fact unintended and accidental, and argued that Critchlow's death was covered by the Policy. It also appended, inter alia,
a number of articles from the Journal of Forensic Sciences dealing with autoerotic asphyxiation, which explain the practice, define it and help to explain that the victim of it has not committed suicide, but that death caused by the practice is an unintended result, and hence an accident.
(September 1999 Appeal Letter at 6.) The Appeal Letter also argued that Critchlow's creation of escape mechanisms showed that he had intended to avoid, not incur, injury and that, therefore, UNUM's exclusion for "`intentionally self-inflicted injury'" did not apply. (Id. at 9.)
In a letter to plaintiff's counsel dated December 15, 1999 ("UNUM December 1999 Letter"), the UNUM appeals committee upheld the denial of plaintiff's request for death benefits. UNUM stated that
the basis for the decision of the Appeals Committee are [sic] the reasons given in First UNUM's initial denial letter dated July 7, 1999, together with the holding and reasoning of the United States District Court for the Northern District of New York in Bennett v. American International Life Assurance Company of New York, 956 F.Supp. 201 (N.D.N.Y.1997). Consistent with the legal standard to be applied in ERISA benefit cases, as stated in the Bennett decision, it is our belief that the evidence supports the conclusion that although the decedent, Daniel Critchlow, may have subjectively expected to survive the activity which caused his death, such expectation was not objectively reasonable.
Plaintiff commenced the present action in April 2000 under ERISA, see 29 U.S.C. § 1132(a)(1)(B), alleging that the Policy was issued pursuant to an employee benefit plan covered by ERISA; that the Policy provides for the payment of a death benefit to the beneficiary of an insured who dies as the result of an accident; that Critchlow's death was accidental; and that UNUM had, both initially and following an administrative appeal, wrongfully denied plaintiff's claim for the death benefit due her under the Policy.
UNUM filed an answer principally denying that Critchlow's death was accidental. It moved for summary judgment dismissing the complaint on that ground; it argued alternatively that Critchlow's death was excluded from coverage because it resulted from an intentionally self-inflicted injury or from illness or disease. (See Memorandum in Support of Defendant's Motion for Summary Judgment ("UNUM Memorandum") at 1.) In support of its motion, UNUM submitted two brief affidavits introducing the following documents: (a) the Policy, (b) plaintiff's initial application for benefits, (c) UNUM's letters denying plaintiff's claim, and (d) two opinions from experts retained by plaintiff, to wit, a January 19, 2001 report by Robert M. Greendyke, M.D. ("Greendyke Opinion"), and a February 18,...
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