t

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARMEN HREN BRYANT,

Plaintiff,

v. File No. 4:01‑CV‑92

HON. ROBERT HOLMES BELL

AIG LIFE INSURANCE COMPANY, a Delaware corporation,

Defendant.

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ORDER AND JUDGMENT

In accordance with the opinion entered this date,

IT IS HEREBY ORDERED that Plaintiff Carmen Hren Bryant's motion for summary judgment (Docket # 19) is DENIED.

IT IS FURTHER ORDERED that Defendant AIG Life Insurance Company's motion . for summary judgment (Docket # 22)

is GRANTED.

IT IS FURTHER ORDERED that Defendant AIG Life Insurance Company's denial of accidental death benefits to Plaintiff

Carmen Hren Bryant is AFFIRMED.

Date: November 27, 2002

ROBERT HOLMES BELL

CHIEF UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARMEN HREN BRYANT,

Plaintiff,

v. File No. 4:01‑CV‑92

HON. ROBERT HOLMES BELL

AIG LIFE INSURANCE COMPANY, a Delaware corporation,

Defendant.

_____________________________________

OPINION

This action for recovery of benefits under an employee benefit plan governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., is before the Court on the parties' cross‑motions for summary judgment.

There is no dispute as to the relevant facts. On the morning of April 29, 1999, Charles Bryant was discovered hanging naked from a flagpole in his backyard. A nylon rope fashioned into a hangman's noose was around his neck. The rope was pulled tight through a pulley at the top of the flagpole and was secured to an eyehook near the base of the flagpole. Mr. Bryant's feet were touching the ground and his legs were bent. It was determined that Mr. Bryant died as a result of his participation in the practice of autoerotic asphyxiation.

As noted by Plaintiff s experts, "Autoerotic asphyxia involves the deliberate induction of cerebral hypoxia for the purpose of producing sexual arousal." (Pl. Exh. 2 at 8). See also Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1450 (5th Cir. 1995) (noting that autoerotic asphyxiation is "the practice of limiting the flow of oxygen to the brain during masturbation in an attempt to heighten sexual pleasure.").

In typical cases of autoerotic asphyxia, the intent is to enhance and stimulate sexual enjoyment, and not to inflict intentional injury. Injury to the practitioner leading to death occurs when a self‑rescue mechanism fails, or when the practitioner loses consciousness sufficiently rapidly to affect his ability to control the asphyxiating mechanism. Intentional self‑injury and death are clearly not the intended consequences of autoerotic asphyxia.

(Pl. Exh. 2 at 8‑9).

At the time of his death Mr. Bryant was a salaried employee of Kraft Foods, Inc. and a participant in the Kraft Choice Personal Accident Insurance Plan (the "Plan"). The Plan provides that when accidental injury results in the loss of life to the insured, the Plan will pay 100% of plan benefits. (Pl. Exh. 4, Summary Plan Description ("SPD") at 7).¹ Charles Bryant's wife, Plaintiff Carmen Hren Bryant, was the named beneficiary under the Plan. All premiums were paid current at the time of Mr. Bryant's death, for full coverage in the amount of $460,000. (Exh. 5, Req. for Admission #1 & #2).

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¹The AIG Group Accident Insurance Policy provides an accidental Death Benefit: "If Injury to the Insured Person results in death within 365 days of the date of the accident that caused the Injury, the Company will pay 100% of the Principal Sum." (Policy at 5). "Injury" is defined in the policy as "bodily injury caused by an accident occurring while this Policy is in force as to the person whose injury is the basis of claim and resulting directly and independently of all other causes in a covered loss." (Policy at 3).

Defendant AIG Life Insurance Company ("AIG"), a Delaware corporation, insures and administers the Plan and determines claims under the Plan.² (Exh. 4, Plan at 11). The Plan is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. (SPD at 12). Defendant AIG denied Plaintiff's request for accidental death benefits on the basis of the Plan's exclusion of coverage for any loss caused by "suicide" or "intentionally self‑inflicted injury." (Exh. 4, SPD at 8).³

Plaintiff filed this action against AIG in the Circuit Court for the County of Kalamazoo, Michigan, seeking recovery of accidental death benefits under the Plan. Defendant AIG removed the case to this Court pursuant to 42 U.S.C. § 1441 on the basis of both diversity jurisdiction 28 U.S.C. § 1332, and federal question jurisdiction, 28 U.S.C. § 1331.

II.

The parties have filed cross‑motions for summary judgment. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment the Court must look beyond the pleadings and

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²AIG Life Insurance Company Group Accident Insurance Policy No. PAI 8050252, Policyholder Kraft General Foods, Inc.

³Under the heading "Exclusions" the Policy states: "This Policy does not cover any loss caused by, or resulting from, the following: (1) suicide or any attempt at suicide or intentionally self‑inflicted injury or any attempt at intentionally self‑inflicted injury." (Exh. 4, Policy at 6).

assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the moving party carries its burden of showing there is an absence of evidence to support a claim then the non‑moving party must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324‑25 (1986). The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one‑sided that one party must prevail as a matter of law." Id. at 251‑52.

III.

Defendant AIG agrees that the Plan does not delegate discretion to AIG with regard to claim determination and that the Court's review of AIG's denial of accidental death benefits is accordingly de novo. See Firestone Tire aced Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).

`In its denial of accidental death benefits AIG referred to both the "suicide" and the "intentionally self‑inflicted injury" exclusions. Plaintiff contends that the denial was wrongful. In support of this contention Plaintiff has presented substantial evidence that the death was accidental. Plaintiff has presented a report from Park Dietz, M.D., M.P.H., Ph.D., Clinical Professor of Psychiatry and Biobehavior Sciences at the UCLA School of Medicine,

and Ronald P. Walker, M.A., FBI (ret.), a criminologist, who concluded that Mr. Bryant's death was "an accidental death during autoerotic asphyxiation." (Pl. Exh. 2). They further opined that "on the occasion of his death, Mr. Bryant intended to experience sexual pleasure without injuring or killing himself. Fatal injury was the unintended consequence of his voluntary actions." Id. Dr. Dietz and Mr. Walker stated that "[f]orensic pathologists and forensic psychiatrists today are unanimous in their opinion that autoerotic fatalities should be classified as accidental deaths." Id. Plaintiff has also presented the opinion of Werner U. Spitz, M.D., that Mr. Bryant "died as a result of autoerotic hanging and that his death was neither suicidal nor intentional." (Pl. Exh. 3). Based on the totality of the findings, Dr. Spitz opined that this was an "accidental death." Id.

Although Defendant previously denied Plaintiff's request that it admit that Mr. Bryant did not intend to commit suicide or intentionally end his life, and although Defendant's denial letter refers to both the suicide and the intentional self‑inflicted injury exclusions, for purposes of these cross‑motions for summary judgment, Defendant is not arguing the policy exclusion for suicide. Instead, Defendant argues only that Mr. Bryant's conduct falls within the policy's exclusion for "intentionally self‑inflicted injuries." Accordingly, for purposes of this motion the Court will assume that Mr. Bryant's death was accidental. The only issue for resolution in these cross‑motions is whether engaging in autoerotic asphyxiation constitutes an "intentionally self‑inflicted injury" within the meaning of the Plans and the Policy's terms.

Neither the Kraft SPD nor the group insurance policy define the term "intentionally self‑inflicted injury." In interpreting employee welfare plans governed by ERISA, the Court is guided by federal common‑law rules of contract interpretation. Caffey v. UNUM Life Ins. Co., 302 F.3d 576, 583 (6th Cir. 2002) (citing Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir. 1998) (en banc). Although the federal common law may draw upon state law principles, state law is not controlling authority. Cassidy v. Akzo Nobel Salt, 308 F.3d 613, 615 (6th Cir. 2002). "Courts should interpret ERISA plan provisions'according to their plain meaning, in an ordinary and popular sense."' Id. at 617‑18 (quoting Perez, 150 F.3d at 556).

There is a split of authority in the federal courts on the issue of whether autoerotic asphyxiation constitutes an "intentionally self‑inflicted injury." The Ninth Circuit recently reversed the district court and held in Padfield v. AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002), petition for cert. filed October 1, 2002, No. 02‑517, that autoerotic asphyxiation does not constitute an intentionally self‑inflicted injury. The Ninth Circuit observed that if events had gone as Mr. Padfield intended, he would have experienced a temporary deprivation of oxygen and an intensified sexual experience, and afterward his oxygen level would have been restored and he would have returned home uninjured. Id. at 1129. According to the Ninth Circuit majority opinion, none of these consequences is an "injury" as that term is defined in the ordinary and popular sense by persons of average intelligence and experience. Id.

In reaching its decision the Ninth Circuit relied primarily on two cases applying state law. American Bankers Ins. Co. of Florida v. Gilberts, 181 F.3d 931, 933 (8th Cir. 1999),

(Minnesota law); Connecticut General Life Ins. Co. v. Tommie, 619 S.W.2d 199 (Tex. Civ. App. 1981) (Texas law). Neither American Bankers nor Tommie held that partial strangulation was not an injury. Rather, in American Bankers the court merely held that it could not conclude on summary judgment that partial strangulation constitutes an injury as a matter of law because reasonable minds might differ based on the evidence presented. 181 F.3d at 933‑34. In Tommie the court held that because there was record evidence before the jury that a temporary restriction of oxygen to the brain caused no permanent physical harm, the jury could reasonably conclude that the practice of autoerotic asphyxiation was not an "injury" for the purposes of the exclusion.

As pointed out by the dissent in Padfield, the majority opinion in Padfield is contrary to all other cases governed by ERISA that have addressed the issue of self‑inflicted injury. All of the other federal courts that have considered the issue under the federal common law of ERISA have held that the induction of cerebral hypoxia falls within the plain meaning of injury and that death resulting from autoerotic asphyxiation was properly excluded from coverage where the policy contained a self‑inflicted injury exclusion. See, e.g., Critchlow v. First UNUM Life Ins. Co., 198 F. Supp.2d 318 (W.D.N.Y. 2002) (holding, under de novo review, that death from autoerotic asphyxiation was within "intentionally self‑inflicted injury" exclusion); Cronin v. Zurich American Ins. Co., 189 F. Supp.2d 29 (S.D.N.Y. 2002) (holding, under de novo review, that "purposely self‑inflicted injury" exclusion encompasses autoerotic asphyxiation); Hamilton v. ATIG Life Ins. Co., 182 F. Supp.2d 39 (D.D.C. 2002)

(holding that administrator's determination that partial strangulation was injury within meaning of self‑inflicted injury exclusion was not an abuse of discretion); Fawcett v. Metropolitan Life Ins. Co., 2000 WL 979994 (S.D. Ohio June 28, 2000) (holding that insurance company did not act arbitrarily and capriciously in finding that partial strangulation is an injury); Lonergan v. Reliance Standard Life Ins. Co., 1997 U.S. Dist. LEXIS 24075, No. CV‑96‑11832‑PBS (D. Mass. May 29, 1997) (holding, under de novo review, that partial strangulation is an injury within self‑inflicted injury exclusion).

The explanations from these courts on the issue of "injury" is instructive. In Critchlow the court noted that autoerotic asphyxiation requires "a significant deprivation of oxygen to the brain ‑ in other words, strangulation. 198 F. Supp.2d at 327. "Any definition of 'injury' that excludes strangulation ‑ whether fatal or not ‑ is simply unreasonable." Id. In Cronin the court described the "injury" from autoerotic asphyxiation as follows:

The effect on the brain produced by this activity is abnormal; the higher cerebral functions of thought, consciousness and awareness are compromised; and a dangerous loss of coordination and self‑control results. Temporary cell damage results, and reduced brain activity occurs. This loss of awareness and control in the search for an ever more intense high risks death, and limits the conscious ability to reverse death's grasp.

189 F. Supp.2d at 38 (citations to record omitted). According to the Cronin court, "[a] reasonably intelligent person would conclude that the 'purposely self‑inflicted injury exclusion' applies to situations where the policyholder causes a wrong to the integrity of his own body to cause himself 'suffering or mischief willfully and unjustly inflicted."' Id. at 39 (quoting Oxford English Dictionary Online, www.oed.com).

Although Cronin may not have intended to cause himself permanent injury, his intention to restrict the flow of blood and oxygen to his brain in order to impair his mental processes was a "hurt" to his physical and mental being, and risked death. Causing oneself "hurt" or "harm" is an injury to one's own body whether inflicted in the search for delight or in the search for pain; both expose the practitioner to a substantially increased risk of accidental death. Cronin may have intended that the "mischief" he caused himself could be reversed by timely intervention, but his "hurt" so affected his state of being as to become irreversible. Under the plain language of the policy exclusion, Cronin's death was "caused by, contributed to, or resulted from a purposely self‑inflicted injury."

189 F. Supp.2d at 40 (emphasis in original).

At least two non‑ERISA cases decided under state law have determined that the partial strangulation involved in autoerotic asphyxiation is intentionally inflicted injury. See, e.g. Sims v. Monumental General Ins. Co., 960 F.2d 478, 480‑81 (5th Cir. 1992) (holding under Louisiana law that partial strangulation is an intentional and self‑inflicted injury barring recovery because it damages tissues in the neck and deprives the brain of valuable oxygen); Sigler v. Mutual Benefit Life Ins. Co., 506 F. Supp. 542, 545 (S.D. Iowa 1981) (holding under Iowa law that coverage was excluded under the self‑inflicted injury provision — "If someone else had placed Mr. Sigler in the same position as he placed himself to temporarily restrict his ability to breathe, it would have been an injury. In the Court's opinion, it continues to be an injury even when it is self‑inflicted.")

Two federal cases where accidental death benefits were granted in autoerotic asphyxiation fatalities have specifically noted the absence of a self‑inflicted injury exclusion. See Todd v. AIG Ins. co., 47 F.3d 1448 (5th Cir. 1995) (noting the district court's conclusion

that had the ERISA‑regulated policy contained an "adequate self‑inflicted injury exclusion . . . recovery would have been denied"); Parker v. Danaher Corp., 851 F. Supp. 1287, 1295 (W.D. Ark. 1994) ("We hasten to say that we are not faced in this case with an exclusionary clause for injury resulting directly or indirectly from an intentionally self‑inflicted injury").

Plaintiff has presented evidence from her experts that in typical cases of autoerotic asphyxia, the intent is to enhance and stimulate sexual enjoyment, and not to inflict intentional injury. (Pl. Exh. 2). However, Plaintiff's experts, Dr. Dietz and Mr. Walker, did not specifically address the issue of whether the partial strangulation involved in autoerotic asphyxiation, before it becomes fatal, causes injury. The Court finds it interesting that in another case, Hamilton v. AIG Life Ins. Co., 182 F. Supp.2d 39 (D.D.C. 2002), Dr. Dietz opined that it is not unreasonable to make the determination that autoerotic asphyxiation is an "intentional infliction of injury" as defined by an identical insurance policy based in part on the position that intentionally starving the brain of oxygen is the intentional infliction of injury and on the analogy that if someone were to do this to another without consent it would certainly be considered injurious by any reasonable person. (Def. Exh. 2).

Those cases that have found no injury have focused on the lack of any lasting or visible effect of the strangulation that accompanies autoerotic asphyxiation. This Court disagrees with the assumption of those courts that the plain meaning of "injury" requires visible or lasting effect.

Upon de novo review, and notwithstanding the Ninth Circuit's opinion to the contrary, this Court joins the overwhelming majority of federal courts in concluding that the partial strangulation involved in autoerotic asphyxiation comes within the plain meaning of "intentionally self‑inflicted injury." Accordingly, this Court affirms AIG's denial of accidental death benefits to Plaintiff on the basis that Mr. Bryant's death was the result of an intentionally self‑inflicted injury.

Date: November 27, 2002

ROBERT HOLMES BELL

CHIEF UNITED STATES DISTRICT JUDGE