Green v. William Penn Life Ins. Co.

• Decision Date: 20 December 2007
• Docket Number: 1932.
• Citation: Green v. William Penn Life Ins. Co., 48 A.D.3d 37, 848 N.Y.S.2d 109, 2007 NY Slip Op 10076 (N.Y. App. Div. 2007)
• Parties: LISA C. GREEN, Appellant, v. WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

48 A.D.3d 37

848 N.Y.S.2d 109

2007 NY Slip Op 10076

LISA C. GREEN, Appellant, v.WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Respondent.

1932.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 20, 2007.

Thomas Torto,New York City, and S. Edmund Resciniti, Roslyn Heights, for appellant.

Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade of counsel), for respondent.

OPINION OF THE COURT

SAXE, J.

On this appeal, we are provided the opportunity to revisit the ancient common-law evidentiary presumption against death by suicide, as it is applied in New York, particularly as it relates to appellate review of a trial court's finding of suicide.

The facts are as follows.On February 20, 2002, at approximately 6:30 P.M., plaintiffLisa Green found her husband, Alan Green, who was then 54 years old, lying in their bed when she arrived home from work.The bed was made and he was on top of the covers with a copy of the New York Times, his Palm Pilot and his portfolio lying next to him.Finding him unresponsive, plaintiff called 911, and Emergency Medical Service technicians then arrived and determined that Mr. Green was already dead.Members of the police department and the Office of the Chief Medical Examiner conducted an initial investigation for about six hours.Plaintiff's mother, her sister-in-law and Mr. Green's cousin and attorney, Richard Wolff, also came to the apartment.

An empty glass and two bottles of water were found on the nightstand next to the bed; in the top drawer of the nightstand were an empty bottle of hydrocodone pills and an empty bottle of Ambien pills.The hydrocodone bottle had contained 40 pills on January 23, 2002, when Mr. Green filled a prescription following hernia surgery, and the Ambien bottle had contained 30 pills when his prescription was refilled on February 6, 2002.In addition, 61 Vicodin pills out of 100 prescribed to Mr. Green on June 7, 2000 were found in the drawer.An empty vial of Percocet was also found, from a 1997 prescription for plaintiff.

Plaintiff would not permit an autopsy to be performed on Mr. Green, following her mother's upset reaction and Mr. Wolff's agreement, explaining that she and her husband were Jewish and "we don't do that."Plaintiff also objected to a toxicological examination for religious reasons, seeing no difference between it and an autopsy.

After a funeral service, Mr. Green's body was cremated, notwithstanding Jewish law against the procedure.Plaintiff explained that it was Mr. Green's desire to have his ashes spread over Yankee Stadium, and that her "husband's wishes were more important than anything."

After Mr. Green's death, plaintiff requested that defendant insurance company pay her the death benefit arising out of a life insurance policy it had issued to Mr. Green on December 3, 2001, in the amount of $500,000, designating plaintiff as beneficiary.Defendant refused to pay, on the ground that Mr. Green's death resulted from a suicide and the policy contained a clause limiting its obligation to repayment of the paid premiums in the event the insured committed suicide within two years of issuance of the policy.Plaintiff therefore commenced this action seeking to recover under the policy.In its answer, defendant asserted as an affirmative defense that the death of the insured was the result of suicide.

After a nonjury trial, the court concluded that there was "no reasonable explanation in this case other than suicide," and dismissed the complaint.This appeal ensued.

We hold, contrary to the trial court, that the evidence failed to overcome the powerful presumption embedded in our common law against suicide.

In this state, the nature and application of the presumption against suicide have evolved over time.Because the presumption is based on the premise that "[s]uicide `is contrary to the general conduct of mankind'" and "an improbability [in] that most men cling to life"(Wellisch v John Hancock Mut. Life Ins. Co.,293 NY 178, 184[1944], quotingMallory v Travelers' Ins. Co.,47 NY 52, 54-55[1871]), treatises have observed that it is not a true presumption, which involves assuming one fact based upon proof of another fact (Black's Law Dictionary 1203 [7th ed 1999]), but "rather, it is a metaphorical way of stating that the burden of proof is on the party alleging suicide"(2 Fishman, Jones on Evidence§ 10:5, at 215[7th ed]).In fact, the Wellisch Court characterized it as a different sort of presumption, one that "is really a rule or guide for the jury in coming to a conclusion on the evidence"(293 NY at 184).

There is no unanimity among common-law jurisdictions as to the degree of the burden placed on the party seeking to establish that a death was by suicide; some jurisdictions have imposed a preponderance of the evidence standard, others require more (see2 Fishman, Jones on Evidence§ 10:5, at 215-216[7th ed]).But the standard now applied in this state, as established in Wellisch, creates an exceedingly high burden.As was clearly explained in the case of Schelberger v Eastern Sav. Bank (93 AD2d 188, 192[1983], affd60 NY2d 506[1983]), "[a]pplication of the presumption shifts the burden of going forward to the insurer to establish suicide as a defense by `clearly establishing such facts as will exclude any reasonable hypothesis of accidental death`"(quotingVance, Handbook on the Law of Insurance, at 571[3d ed][emphasis added]).In other words, due to the presumption, a finding of suicide is warranted only if "no conclusion other than suicide may reasonably be drawn"(Schelberger v Eastern Sav. Bank,60 NY2d at 510).

On the record before us, the trial court was wrong in concluding that there was no reasonable explanation in this case other than suicide.Based upon the evidence before the court, it was also possible to reasonably infer other causes for his death, including the possibility that Mr. Green accidentally overdosed on the pain or sleep medication he had been prescribed following his hernia surgery.But our difference of opinion regarding which inference is the more likely one is not determinative.The analysis we must employ on appeal does not turn on the relative merits of the competing inferences as to whether Mr. Green's death was caused by suicide, accident or other means.Reasonable people may differ as to whether the evidence better supports one hypothesis or the other.Our obligation here is to review the evidence and determine whether the trial court properly concluded that suicide was the only conclusion that could reasonably be drawn from the evidence.As a matter of law, it was not.Therefore, application of the law regarding the presumption against suicide necessitated a directed verdict in this case, and we cannot uphold the determination of the trial court as factfinder that Mr. Green committed suicide.

We do not disagree that there was sufficient evidence to logically support the inference of suicide.However, there was much evidence that supports other conclusions as to what caused his death.We are not making findings contrary to those of the trial court as to what occurred; rather, we are simply observing that there are other reasonable conclusions that may be drawn from the evidence, aside from suicide, and that therefore, as a matter of law, the presumption against suicide was not overcome.

Plaintiff testified that February 20, 2002 began as an ordinary day for the couple.Mr. Green, who exhibited no signs of depression or other unusual behavior, told his wife that he would be going to the gym that morning to relieve abdominal pain from his hernia surgery, and that he had to make telephone calls including a work-related conference call, that afternoon.Indeed, he was dressed in gym clothes—jeans, t-shirt and sweatshirt, with his sneakers on the floor next to the bed—when he was found that evening.

In addition, Mr. Green's cousin, Richard Wolff, who represented Mr. Green in litigation with his former employer, testified that he spoke with Mr. Green on the morning of February 20, 2002, and they scheduled a meeting for the following week.According to Mr. Wolff, Mr. Green was upbeat, positive and excited about the consulting business he had begun.

Mr. Green had visited his internist the day before his death, and according to the physician's testimony, expressed feelings of depression and anxiety and described problems with insomnia.However, importantly, when the physician asked him directly if he felt depressed enough to take his own life, Mr. Green protested that "he would never do such a thing, he was not suicidal, he was just down."Furthermore, Mr. Green went to the trouble of following his internist's suggestion and telephoning the psychiatrist he recommended, leaving a message on his voicemail.

Moreover, his actions shortly before his death and the circumstances at the time of his death support the inference that his death was accidental.His lying on top of the covers of his bed with a copy of the New York Times, his Palm Pilot and his portfolio surrounding him, like the conversations he had that day and the appointments he made, point to a man engaged in life, not one determined to depart it.

The trial court heavily emphasized the hearsay statements contained in the police report and medical examiner's report, in both of which it was reported that plaintiff remarked that Mr. Green was feeling depressed and had overdosed on pain medication.The court similarly pointed to the testimony of Mr. Green's sister, reporting that on the day after his death plaintiff said that Mr. Green had been depressed and that his death might be attributable to an overdose.Based upon these reports, the trial court held plaintiff's testimony to be incredible to the extent she denied that Mr. Green was really depressed or under substantial pressure and asserted that she did not know what had caused his death, that it might...