2012 Accidental Death Claims: Illness, Medical Mishap and Overdose. Richard S. Maselli, Esq. Delaware

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1 2012 Accidental Death Claims: Illness, Medical Mishap and Overdose Richard S. Maselli, Esq. Delaware I. Summary of Law Delaware case law focuses on the proximate cause of the death in determining whether the death is compensable under an accidental death policy. As in other states, particular case decisions are driven by the specific policy language under review and unique case facts. II. Statutes Delaware law on the subject of accidental death is shaped by case law as opposed to specific statutory law. III. Case Law Loss by accidental means is the same as loss caused by accident. Chelly v. Home Ins. Co., 285 A. 2d 810 (Del. Supr. Ct. 1971) Although not a death case, this decision contains analysis regarding injury claims on an accident policy covering injuries caused by accidental means. The subject policy upon which the injury claim was based provided that the Company does hereby agree to make payments herein provided when any covered person as described herein shall incur loss resulting from bodily injury caused directly by accident independent of all other causes Id. at 811. The plaintiff initially suffered pain while bowling in a recreational league. The plaintiff was in extreme pain and required assistance in traveling to the hospital where he was diagnosed with a herniated lumbar disc. Defendant insurer denied coverage finding that a slipped disc while being an accident in the general sense is not an unexpected event or response from accidental causes such as a fall while bowling. The Superior Court in reviewing the policy term by accidental means construed the term to be the equivalent of caused by accident, citing to Thomason v. United States Fidelity and Guaranty Company, 348 F. 2d 417 (5 th Cir. 1957). The Superior Court declined to accept plaintiff s argument distinguishing accidental means from accidental results in construing insurance contracts, citing to established Delaware law on the subject. Prudential Insurance Company of America v. Gutowski (Del. Supr. Ct.

2 1955); Koester v. Mutual Life Insurance Company of New York, 179 A. 327 (Del. Supr. Ct. 1934); Fulnettle v. North American Mutual Insurance Company, 50 A. 2d 614 (Del. Supr. Ct. 1946). Accordingly, the Superior Court denied plaintiff s Motion for Summary Judgment and granted Defendant s Motion for Summary Judgment finding no coverage under the policy. Overdose death was not accidental as defined in policy. The Prudential Insurance Company of America v. Gutowski, 113 A. 2d 579 (Del. Supr. Ct. 1955) This case involves a lawsuit that sought benefits under four (4) separate life insurance policies. One of the issues to be decided in this case was whether the insured s death caused by an overdose of barbiturates was covered under the life insurance policies. The insured had been previously treated on an inpatient basis for alcoholism as well as psychosis and delirium tremens. The subject policies provided for double indemnity in the event death was caused as a direct result, directly and independently of all other causes, of bodily injuries effected solely through external violent and accidental means. The insured was found dead by her husband on March 7, The prior evening her husband had witnessed her take one barbiturate tablet with a beer before he retired for the evening. Although the husband did not witness the insured take a fatal dose of barbiturates, the toxicology report revealed a lethal level of barbiturates in her blood sample. While the insurer did not contend that the death was the result of a suicide, it denied double indemnity benefits on the basis that the death did not occur by accidental means as required by the policies. The Appellate Court found that there was no direct evidence of an accident or mishap such as an accidental overdose. The plaintiff argued that it was plausible that the insured was confused and accidentally miscalculated her dosage. However, the Appellate Court reasoned that a verdict of mishap in the taking of an overdose of medication cannot rest on speculation alone. Id. at 245. Plaintiff had previously argued successfully in the Trial Court that there is a presumption against suicide or self-inflicted injury. However, the Appellate Court found the presumption against suicide inapplicable in this case and instead found that there is a presumption that if someone ingested medication they did so voluntarily and in the absence of a mishap. Id. at 246. Accordingly, the Appellate Court reversed the Trial Court s judgment for the plaintiff and found that the plaintiff voluntarily took a large overdose of barbiturates resulting in her death and therefore rendering the claim outside the scope of policy coverage.

3 Whole life two year suicide exclusion barred recovery of death claim. Jarmon v. American Heritage Life Insurance Company, 267 A. 2d 601 (Del. Supr. Ct. 1970) Action brought by insured s wife for death benefits after insured died from a gunshot wound from a rifle. The medical examiner noted the death was a suicide and that the decedent insured left a suicide note. The insurer denied the claim on the basis of a suicide exclusion which bars recovery based on death caused by suicide within two years of issuance of the policy. The policies show that the insured was previously covered under a group policy which did not reference suicide. However, upon leaving his employment with Canada Dry, the insured George Harmon obtained a whole life policy which contained the two year suicide exclusion. Even though the suicide occurred more than two years after the issuance of the group policy, the whole life policy superseded group coverage. Accordingly, the whole life policy went into effect only months before the suicide. Citing to the following rule, the Court found that the whole life policy two year suicide exclusion barred recovery: A group life policy which provides that when an employee terminates employment, he may have a life policy issued, and that such policy shall be a conversion of the insurance under the group policy and shall terminate the insurance under the group policy, does not form a single contract with the life policy, which provides that the policy constitutes the entire contract between the parties, nor is the life policy a continuation of the group policy. Couch Insurance, Second Ed Sec. 82:29, pg The two year time lapse for the suicide exclusion for the whole life policy commenced not from the issuance of the group policy but only upon the conversion to the whole life policy rendering the exclusion applicable to the suicide death upon which the claim was based. Accordingly, recovery on the death claim was barred by the suicide exclusion. Death ruled an excluded suicide and not an accident. Malin v. Metropolitan Life Insurance Company, 845 F. Supp. 2d 606 (D. Del. 2012) This matter involves a claim for life insurance benefits under a group accidental death policy. The insured died as a result of a self-inflicted gunshot wound to the head.

4 The question remained whether the death was the result of a suicide so as to remove the claim from coverage. The insured and his wife, the beneficiary under the policy, engaged in an argument that grew in intensity to the point that the insured procured a revolver which was apparently fully loaded and began waiving the gun in a threatening manner. The gun was temporarily removed from the insured s possession and once recovered the insured emptied some bullets from the gun and proceeded to point the gun at his head and pulled the trigger. The first trigger squeeze was on an empty chamber but the second resulted in a discharge of a bullet into the insured s head. The insured died from the gunshot wound later that day. The policy paid benefits if the insured suffered serious injury or death as a result of an accident. The policy did contain an exclusion for intentionally self-inflicted injuries or suicide. Although plaintiff argued that the insured allegedly attempted to remove all bullets from the gun and made no remark that he was intending to kill himself or that he left a suicide note, the Court ruled that the Plan Administrator did not act in an arbitrary or capricious manner in denying coverage and granted summary judgment for the defendant. In support of this finding, the Court cited the medical examiner s report which listed the death as a suicide. Pregnancy exclusion on policy was inapplicable. Coverage found on death claim. Rose v. The Commonwealth Beneficial Assoc., 86 A. 673 (Del. Supr. Ct. 1913) Deceased insured was a member of the Commonwealth Beneficial Association at the time of her death. The insured fell on her stomach and was later taken to the hospital and died the next day. The decedent was found to be pregnant at the time of death. The Beneficial Association denied death benefits to the beneficiary based on a provision in the policy that barred coverage for confinement due to pregnancy. The cause of death of the insured decedent was determined to be septic peritonitis. The Court found that her death was not the result of any confinement due to pregnancy so as to bring the claim within the coverage exclusion. In essence, the Court found that the pregnancy was an incidental finding as opposed to the cause of death. Accordingly, upon due proof of death and in the absence of an applicable exclusion, the Court found for the plaintiff and awarded death benefits under the policy.

5 Summary judgment for insurer where plaintiff was required and failed to present expert opinions on proximate cause of death. Campbell v. Stonebridge Life Ins. Co., 966 A. 2d 347 (De. 2009) Plaintiff/Appellant appealed Superior Court s grant of summary judgment on claim for death benefits arising from the death of plaintiff s mother s accidental death. The facts of the case involve a motor vehicle accident that occurred in Jalisco, Mexico wherein the decedent allegedly struck her head against the dashboard of the vehicle causing cerebral bleeding. The plaintiff s mother died approximately two months after the accident. The cause of death according to the Mexican coroner was septic shock and cerebral ischemia. The Superior Court found that the plaintiff had not submitted any admissible evidence to show that the car accident was the cause of the insured s death and granted summary judgment for the defendant insurer. The subject policy provided in pertinent part that injury was defined as bodily injury caused by an accident directly and independently of all other causes. In construing the policy language, the Delaware Supreme Court found that it required the Plaintiff to show that the car accident injury was the proximate cause of death. In affirming the summary judgment for the defense, the Delaware Supreme Court acknowledged that normally proximate cause is an issue for the jury. However, in this case where the determination of proximate cause required admissible expert opinions and no such opinion existed then the absence of admissible expert testimony precluded the issue from reaching the jury, Mazda Motor Corp. v. Lindahl, 706 A. 2d 526, 533 (Del. 1998). Finding that no admissible expert testimony or opinion existed causally linking the car accident with the plaintiff s death and that such expert opinions were necessary for the claim to reach the jury, the Delaware Supreme Court affirmed the underlying summary judgment for the insurer. Note: This decision appears to be driven at least in part by the passage of time between the accident and the ultimate death of the insured. Murder of insured can be construed as accidental under policy in the absence of foreseeability. Fulnettle v. North American Mutual Insurance Company, 50 A. 2d 614 (Del. Supr. Ct. 1946) Action by a beneficiary for double indemnity on a life insurance policy after the murder of the insured by her husband. The policy stated in pertinent part that: if the insured shall sustain bodily injury caused directly, exclusively and independently of all

6 other causes, through external, violent, unintentional, involuntary and purely accidental means Defendant insurer denied double indemnity claim as the insured was killed by the intentional acts of her husband and therefore the claim did not satisfy the policy language. In reviewing the complaint, the Superior Court noted that there was no indication that the murder was provoked or foreseeable in any manner. Citing law from other jurisdictions, the Superior Court acknowledged holdings that an accident policy providing coverage for loss caused by accidental means covered the intentional acts of others so long as the death was not the direct result of misconduct by the insured and was otherwise unforeseen. Id. at 614. Further construing the policy language, the Superior Court found that the policy exclusion focused on the voluntary acts of the insured in excluding coverage but not that of others that were unforeseeable. Accordingly, the Superior Court overruled the insurer s motion to dismiss finding that the plaintiff had stated a cause of action where the policy did not exclude liability on the facts set forth in the complaint. Struggle for gun and resulting death by gunshot wound not accidental as defined in policy. Koester v. The Mutual Life Insurance Company of New York, 179 A. 327 (De. 1934) Trial Court judgment for defendant insurer upheld by the Supreme Court of Delaware where insured s death caused by unintentional gunshot wound inflicted by wife was not accidental as defined in policy. Although there was no prior evidence of animosity, violence or ill will between husband and wife, the couple became engaged in a struggle over a gun when the husband attempted to disarm his wife who was in ill health after a medical procedure. During the struggle, the gun fired and killed the insured husband. The Trial Court acknowledged that the struggle was not an assault and no violation of the law was committed by the insured. In analyzing whether the Trial Court erred in granting summary judgment for the defendant insurer instead of submitting the case to the jury, the Delaware Supreme Court outlined the divergence of legal theories regarding losses caused by accidental means. The first theory held that any injury deemed accidental is always covered under a double indemnity policy. The second theory approved by the Delaware Supreme Court established a distinction between accidental injury and an injury caused by accidental means, citing to Metropolitan Life Ins. Co., v. Landsman, 165 A. 563, 567 (Del. Supr. Ct. 1935).

7 The Delaware Supreme Court further cited to the United States Supreme Court in order to define accident. See United States Mut. Accident Assoc. v. Barry, 131 U.S. 100, 9 S. Ct. 755, 762, 33 L. Ed 60 which states: That the term accidental was used in the policy in its ordinary, popular sense, as meaning happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected. Employing the aforementioned definition of accident to the facts of the case, the Delaware Supreme Court agreed with the Trial Court that while the shooting was not intended, it was certainly a foreseeable consequence of the intentional struggle for the gun. The insured s voluntary attempt to disarm his wife put into motion a chain of events leading to the gunshot wound and his death. Stated another way, if the insured had not attempted to disarm his wife he would not have been killed. Accordingly, the Delaware Supreme Court affirmed the judgment for the insurer from the Trial Court. Murder of insured husband by wife was not foreseeable and therefore was covered by life insurance policy. Maneval v. Lutheran Brotherhood, 281 A. 2d 502 (Del. Supr. Ct. 1971) Action for double indemnity by insured s husband s estate after husband was murdered by wife. Superior Court granted plaintiff s Motion for Summary Judgment finding that insured s murder was an accident as defined by the subject policy and therefore compensable. The insured, Clark E. Ney, was murdered by his wife upon returning home from a night of drug use with another woman. The insured had been arguing with his wife after which both reached for a pistol. The facts show that the wife reached the pistol first, fired and killed her husband. The marriage involved physical violence and marital problems prior to the murder. The Superior Court acknowledged in its legal analysis that Delaware law still accepts the distinction between accidental death and death by accidental means despite the admonition set forth in the dissent of Justice Cardozo in the landmark case of Landress v. Phoenix Mut. Life Ins. Co., 291 U.S. 491, 499, 54 S. Ct. 461, 463, 78 L. Ed. 934 (1934). The Superior Court also acknowledged the case of Koester v. Mutual Life Ins. Co. of New York, 179 A. 327 (De. 1934) which outlined the divergent views of accidental death. However, the Superior Court noted that unlike in Koester, the facts in this case did not establish that murder was a foreseeable consequence regardless of

8 whether the insured s behavior towards his wife was disturbing or reprehensible. The Superior Court went so far as to deem the murder as understandable yet found that since it was not foreseeable it was by accidental means. Accordingly, the Superior Court entered summary judgment in favor of the plaintiff on the double indemnity claim.