This case involves an insurer seeking a declaratory judgment that it properly denied accidental death benefits to the beneficiary of a life insurance policy. In 2012, Whitaker obtained a life insurance policy and accidental death benefit rider on Brown, and named herself as the policy owner and beneficiary.4 The accidental death benefit rider provides that AGLIC would pay Whitaker an extra benefit if Brown's death was caused by an accident.5 "Accidental death" is defined in the policy as:
death that (a) resulted directly, and independently of all other causes, including but not limited to disease or mental infirmity, or medical or surgical treatment from accidental bodily injury sustained while the Covered Insured's coverage under this rider was in force; and (b) occurred within 120 days after the injury.6
The coverage is also subject to the following exclusions:
[AGLIC] will not pay any Accidental Death Benefit if the Covered Insured's death is directly caused by accidental bodily injury incurred by the Covered Insured in an accident where the Covered Insured was operating any type of land, water, or air vehicle while having a blood alcohol content at or above the level made illegal by statute for the operation of such a vehicle or if the Covered Insured's death is caused or contributed to by:
(a) intentional self-inflicted injury, while sane or insane;
(b) commission of or attempt to commit an assault or felony;
(c) engaging in an illegal occupation;
(d) participation in an insurrection or war, whether declared or not;
(e) an excitant, depressant, hallucinogen, narcotic or other drug, unless taken as prescribed by a licensed physician; or
(f) flight in or descent from or with any aircraft in which the Covered Insured was the pilot or a crew member, was giving or receiving training or instruction or had any duties.7
On January 23, 2017, Brown was shot and killed by a Kenner police officer.8 The events leading up to Brown's death were explained by this Court in a prior order:
On the morning of January 23, 2017, at 11:02 a.m., the Kenner Police Department received a call from Joshua Brown, Jairon Brown's half-brother. Joshua told the dispatcher that his half-brother was "swinging a knife" at him when Joshua tried to enter the house in which the brothers resided. Joshua later testified that when he arrived home, Jairon went to the kitchen, retrieved a knife, and started "showing" the knife to him. The brothers' father, Armond Brown, Sr., who lived in the same house, testified that when Joshua came home, Jairon "had a knife in his hand[ ] and told Joshua to roll out."
At least two Kenner police officers arrived at the scene, spoke with Joshua, and then approached the front door of the residence to attempt to make contact with Jairon. When these attempts were unsuccessful, the police officers told Joshua that in order to get help for his brother, he had to obtain an order for protective custody from the Jefferson Parish coroner. Joshua left the residence with an officer to sign the necessary paperwork, and the coroner's office issued the order for protective custody shortly before 1:30 p.m. The order authorized the police officers to remove Brown from his home and take him to Ochsner Hospital in Kenner for an immediate psychiatric examination.
More police officers had arrived at the scene by the time the order was formally issued. The officers established a secure perimeter around the house and an outer perimeter on the street to control traffic and bystanders. Officer Ronnie Barger, the Kenner SWAT team negotiator, first attempted to contact Brown by telephone. When that proved unsuccessful, Officer Barger used a bullhorn to attempt contact. Officer Barger asked Brown to leave the residence and told him that the police wanted to help him.
Members of the Kenner SWAT team then attempted to breach the front door of the house in order to make visual contact with Brown. When the officers opened the front door, they observed Brown standing near the door with two knives in his hands and in a "squatted" or "defensive" stance. Some of the officers described Brown as having a "thousand-yard" or "blank" stare on his face. The officers instructed Brown to drop his knives, but he did not comply. The officers then fired sponge rounds and a Taser at Brown. The sponge rounds hit Brown in the thigh area but did not incapacitate him. The Taser fire directly hit him, but it likewise had little effect.
After these attempts to incapacitate Brown, the Kenner Police Department fired tear gas into the house. Brown exited the front door of the house shortly after the officers deployed the tear gas. He was holding both knives and wiping his eyes with his sleeves. A brick wall lines much of the Browns' front yard. A footpath extends from the Browns' front door to a pedestrian gate that opens to the sidewalk. Officers Romano and Brent Donovan were inside the brick wall in the front yard when Brown emerged from the house. Both officers were to Brown's right and armed with rifles containing live ammunition. Officers Lewis Tusa and John Cusimano positioned themselves inside the gateway at the end of the footpath, not protected by the brick wall. Neither officer was armed with lethal ammunition – Officer Tusa had a Taser gun, and Officer Cusimano had sponge rounds. There is inconsistent testimony regarding whether the pedestrian gate was closed in front of Officers Tusa and Cusimano when Brown emerged from the house. There is also inconsistent testimony regarding whether, if closed and separating the officers from Brown, the pedestrian gate was locked so that Brown would have been unable to open it to attack the officers.
Brown, armed with both knives, began to walk down the footpath toward Officers Tusa and Cusimano, yelling bible verses. Officers Donovan and Romano walked parallel to Brown alongside the brick wall to Brown's right. The Kenner police officers repeatedly ordered Brown to drop his knives, but he refused. Brown stopped when he was about halfway between the front door and Officers Tusa and Cusimano. The police officers continued to give him verbal commands to drop the knives. A short time later, Brown continued down the footpath. When he got closer to them, Officers Tusa and Cusimano each fired their non-lethal ammunition. Shortly after they fired, Officer Romano fired multiple lethal rounds, killing Brown. Officer Romano testified that when he fired his weapon, Brown's arms were "near his side with his hands out front," and both knives were "vertical in the air." Officer Romano further stated that Brown was not attempting to strike Officer Tusa or Cusimano when he fired. Officer Donovan testified that Brown was "within an arm's reach" of the pedestrian gate when Officer Romano fired. Joshua Brown testified that at the time his brother was shot he was about seven or eight feet from the front gate where Officers Tusa and Cusimano stood. Cynthia Morell, a neighbor who witnessed the incident, stated in a sworn affidavit that Brown was "about ten feet from the front gate."
Photographs taken by the Kenner Crime Scene Technician show that one of Brown's knives was a stainless steel serrated kitchen knife with a seven-inch blade. The other knife was a stainless steel kitchen knife with a five-inch blade.
Brown v. Kenner Police Dep't , 2018 WL 5251912, at *1-3 (E.D. La. Oct. 22, 2018) (Vance, J.) (citations omitted) ("civil action no. 17-3445").
Civil action no. 17-3445 was a suit brought by Brown's parents and brothers against Officer Romano and the City of Kenner asserting state law claims for wrongful death, survival, and intentional infliction of emotional distress, and federal civil rights claims under 42 U.S.C. § 1983. Brown v. Kenner Police Dep't , 2018 WL 5251912, at *3. The Brown plaintiffs contended that Brown was wrongfully shot and killed without just cause. Id. On October 22, 2018, this Court granted defendants' motion for summary judgment holding that "Officer Romano's use of deadly force was not clearly unreasonable because he reasonably feared that Brown posed an immediate threat to the safety of Officers Tusa and Cusimano." Id. at *6. To reach this conclusion, the Court examined the summary judgment evidence in the light most favorable to the plaintiffs, which led to the following picture of the incident:
Officer Romano arrived at the scene after being notified that Brown had barricaded himself in his home, that Brown was armed with two knives, and that Brown was reportedly schizophrenic. Officer Romano was aware that Kenner police officers had fired non-lethal munitions at Brown, but that those munitions failed to incapacitate him. Officer Romano then observed Brown, still armed with two knives, leave his residence and haltingly walk down the footpath towards Officers Tusa and Cusimano after the Kenner
...
