2012 - Accidental Death Claims: Illness, Medical Mishap and Overdose William J. Gallwey, III Oregon OREGON I. SUMMARY OF LAW Under Oregon law, where an insurance policy provides benefits for death caused solely from accidental bodily injury, and excludes coverage for death resulting from sickness or disease, there will be no coverage where the sickness or injury substantial contributes to the death. Decisions hinge upon the facts of each case. Generally, the concept of accident requires an external event or violent force as opposed to the natural progression of a disease. This is especially so where the policy specifically requires a violent, external or accidental force. Thus, brain injury which is the result of an untreated medical condition, such as sleep apnea, would not be deemed an accident because there would be no external event or violent force. Likewise, an automobile collision which barely resulted in scrapes to two cars lacked the requisite violent, external or accidental force where the insured fainted while standing outside his car after the collision, relative to a preexisting medical condition, and died of injuries incurred during the fall. However, a mountain climber who contracted a fatal medical condition while ascending and descending a mountain was deemed to have suffered an accident. Factors significant to that decision were: the absence of the condition before the trip; and rapid death due to the condition. The court also noted that the chances of one contracting that medical condition while climbing a mountain were highly unlikely. The courts undergo a similar analysis where a patient dies while receiving medical treatment according to the policy language. A cancer patient s death by strangulation was deemed to be accidental where he trapped himself in protective straps because the treatment he received for cancer did not relate to the cause of death by strangulation. However, the death of an insured with advanced cancer, who died as a result of a diagnostic procedure, was deemed to be within the scope of an exclusion for sickness or disease or medical or surgical treatment therefor because the procedure related to ongoing, intensive treatment. Death due to collision while operating an automobile under the influence of alcohol is deemed to be an accident. As such, in order to avoid liability for alcoholrelated occurrences, the terms of an insurance policy must include specific exclusions relative to alcohol. There is one reported case where the insured s death due to drug overdose was not covered because the policy excluded death resulting from being under the influence of drugs unless prescribed by a physician.
II. STATUTES Review of the law of the state of Oregon did not identify statutes which directly relate to the issues discussed herein. III. CASE LAW Perry v. Hartford Accident and Indemnity, 256 Or. 73,471 P.2d 785 (1970). The Supreme Court of Oregon considered a claim for accidental death benefits where the policy provided benefits for death caused directly and independently of all other causes by accidental bodily injury. The policy also excluded loss from death caused by or resulting from sickness or disease or medical or surgical treatment. The insured, who had a history of coronary artery disease including a myocardial infarction, was injured in an automobile collision. The collision aggravated the insured s medical condition resulting in death in the hospital within two days. Affirming a jury verdict in the insurer s favor, the court reasoned: Where preexisting disease substantially contributed to death or disability, there is no coverage under the present policy language. This means that the question of coverage will be primarily one for the jury except in those instances where the court can say as a matter of law that either there was no evidence that disease substantially contributed to death or disability or that it has been shown conclusively that it did not contribute. Boly v. Paul Revere Life Ins. Co., 238 Or.App. 702, 246 P.3d 1 (2010). The insured brought a breach of contract and declaratory judgment action against his disability insurer in order to challenge the insurer s determination that his disability was caused by accidental injury, rather than sickness. The disability policy contained a lifetime benefit period for disability due to accidental injury while the maximum benefit for disability due to sickness was sixty-five. The policy did not define the term accidental. The insured s disability was cognitive impairment due to undiagnosed sleep apnea which caused the insured to experience hypoxia (injury to the brain due to failure to breathe properly) while he slept. The trial court granted the insurer s motion for summary judgment on the grounds that the insured s nocturnal hypoxia was the natural consequence of the insured s sickness (sleep apnea). Affirming the trial court s order, the court of appeals reasoned 2
that an accident must result from some external event or force as opposed to natural processes such as the natural progression of a disease. Thus, the court rejected the insured s argument that his failure to diagnose sleep apnea, or failure to breath at night, was accidental within the meaning of the disability insurance policy. Chale v. Allstate Life Ins. Co., 353 F.3d 742 (9th Cir. 2003). This was a claim, under a life insurance policy, for additional benefits which were payable where death was due solely to accidental injury and not due to disease or infirmity to the body or mind. The insured, while climbing up and descending down Mount Kilimanjaro, was afflicted by high altitude pulmonary edema and high altitude cerebral edema. These conditions occur when an individual cannot adjust to the change in climate and pressure associated with rapid changes in altitude. The district court granted the insurer s motion for summary judgment, and denied the beneficiary s contrary motion, reasoning that the insured intentionally climbed the world s tallest mountain and, as such, accepted the reasonably foreseeable risk of contracting edema. The Ninth Circuit disagreed, based upon Oregon law, arguing that a reasonable foreseeable test would extend the law too far to include circumstances where there is a remote possibility of death but where death is normally considered an accident, such as a golfer who is struck by lightning in a thunder storm. According to this reasoning, the court determined that the insured contracted an unusual and serious condition while mountain climbing in a manner that was accidental. The court further explained that the death was not due to disease because the insured did not have the two types of edema before he sought to climb the mountain and died from these conditions soon after contracting them. Therefore, the court reversed the district court judgment and ordered summary judgment in favor of the beneficiary. Fries v. John Hancock Mutual Life Ins. Co., 227 Or. 139, 360 P.2d 774 (1961). The Supreme Court of Oregon considered an accidental death claim where the policy paid a benefit where the cause of death was solely through external, violent and accidental means. The insured was a man in his seventies who, shortly before his death, had been recently diagnosed with arteriosclerotic heart disease with congestive failure. The insured was in a mild automobile collision which resulted in barely a scrape to the cars. After the collision, while exchanging information with the driver of the other vehicle, the insured fainted and fell to the ground, ultimately dying of brain injuries due to the fall. The evidence established that the insured fainted due to a psychological event, fright, related to his heart condition and not due to any physical injury caused by the automobile collision. Hence, the court determined that the claimant did not establish that there was a violent, external and accidental force which was required in order for the claim to fall within the policy s scope of coverage. Accordingly, the court reversed the judgment in the claimant s favor. 3
Beveridge v. Hartford Accident and Indemnity Co., 95 Or.App. 658, 770 P.2d 943 (1989). The court of appeals considered a claim for benefits under an accidental injury and death policy that contained an exclusion for losses resulting from sickness or disease or medical or surgical treatment therefor. The insured, who was hospitalized, developed complications of multiple myeloma and related radiation treatment and chemotherapy. Diagnostic tests performed in order to evaluate the complications resulted in bronchial bleeding, cardiopulmonary arrest and the insured s death. The beneficiary under the policy argued that the policy s language was ambiguous as to whether diagnostic procedures constituted medical or surgical treatment of a sickness or a disease. The court of appeals rejected the beneficiary s ambiguity argument, reasoning that the procedure was performed as part of an ongoing intensive treatment program. Consequently, the court of appeals affirmed the summary judgment order in the insurer s favor. Salisbury v. John Hancock Mutual Life Ins. Co., 259 Or. 453, 486 P.2d 1279 (1971). The Oregon Supreme Court held that the insured died of accident within the meaning of his policy s accidental death coverage where the insured, who was in a nursing home for brain cancer treatment, died of strangulation when he entangled himself in protective straps. The court briefly reasoned that the insured s death was due to strangulation not the medical condition for which the insured sought treatment, i.e., cancer. Thus, the court affirmed the judgment for the policy s beneficiary. Harbeintner v. Crown Life Ins. Co., 46. Or.App. 579, 612 P.2d 334 (1980). The beneficiary of an accidental death policy sought to recover benefits after the insured was killed when the car he was driving went off the road. Toxicology reports concluded that the insured had a blood alcohol content of.23 which was in excess of the legal limit. The policy did not contain a specific exclusion for driving under the influence. The insurer argued that the insured s death due to automobile collision was the foreseeable result of willfully driving an automobile while intoxicated. The court disagreed with the insurer s argument based upon the decision of the Supreme Court of Oregon in a similar case. Botts v. Hartford Acc. & Indem. Co., 284 Or. 95, 585 P. 2d 657 (1978) (holding the insured s death while driving an automobile under the influence was accidental). Following Botts, the Harbeintner court reasoned that the ordinary purchaser of insurance would deem an automobile collision which occurs while the driver is under the influence of alcohol to be an accident. Accordingly, absent a definition of accident which did not include automobile collisions while under 4
the influence of alcohol, or an applicable exclusion, Oregon law required the insured s death to be deemed accidental. Baylor v. Continental Casualty Co., 190 Or.App. 25, 78 P.3d 108 (2003). The Oregon Supreme Court affirmed the judgment in the insurer s favor where the group insurance policy providing accidental death coverage excluded death resulting from being under the influence of drugs unless prescribed by a physician. The exclusion applied because the insured died of a drug overdose. 5