By: Zach Wright, Volume 104 Staff Member
The Seventh Circuit decided Tran v. Minnesota Life Ins. Co. (“Tran”) in April of 2019.[I] Tran stemmed from a beneficiary’s claim for benefits under an ERISA-governed life insurance policy after their spouse died engaging in autoerotic asphyxiation.[ii] The court held that a reasonable person would conclude death by autoerotic asphyxiation is an intentionally self-inflicted “injury”[iii] and such a death fell within the scope of an ERISA plan’s coverage exclusion for such injuries.[iv] In this holding, the Seventh Circuit split from the Ninth and Second Circuits.[v] The driving force behind the Seventh Circuit’s holding in Tran, and contrary to the Second and Ninth Circuits’ analysis of the same issue, was that “[s]trangling oneself to cut off oxygen to one’s brain is an injury, full stop.”[vi] Since the deceased in Tran died as a result of intentionally self-inflicted strangulation, the Seventh Circuit concluded the death fell within the plan exclusion for self-inflicted injuries. Plaintiff’s petition for rehearing en banc was denied.[vii]
This Post argues the Seventh Circuit’s holding that strangulation is always an injury is incorrect. After chastising their sister circuits for separating strangulation into two distinct phases, the court wrongly separated autoerotic asphyxiation into two distinct components. By doing so, the court incorrectly constructs the legal question at issue which results in an erroneous holding. Evidence of this can be found in the absurd consequences produced when the Seventh Circuit’s reasoning is applied to other potentially harmful activities pursued for enjoyment.
I. AUTOEROTIC ASPHYXIATION DOES NOT CONSIST OF TWO DISTINCT COMPONENTS
All three circuit courts use the subjective/objective test to analyze whether an act was intentional.[viii] This test first asks whether the injured individual had a subjective expectation of injuring himself, and if that cannot be determined, next asks whether an expectation of injury was objectively reasonable.[ix] However, the courts differ on how to draw the line between effect and injury. The determinative issue across the circuits is how the question of injury is framed. The courts have taken two different approaches to this and have arrived at different conclusions. The Seventh Circuit’s approach frames strangulation as an indivisible act and autoerotic asphyxiation as containing an injurious and a pleasurable component.[x] The second approach, adopted by the Second and Ninth Circuits, frames the opposite: strangulation can be separated into two different components and autoerotic asphyxiation cannot.[xi]
The Seventh Circuit repeatedly emphasized that strangulation should not be separated into distinct phases.[xii] The court held that doing so artificially separates one continuous act into multiple parts.[xiii] Despite criticizing their sister circuits for creating a conceptual division in a single act, the Seventh Circuit’s decision that strangulation is per seinjury rests on a similar conceptual division. As the dissent points out, a hard-and-fast strangulation rule presupposes that the allegedly injurious component of autoerotic asphyxiation, the act of self-strangulation, can be separated from the allegedly pleasurable component, the act of masturbation.[xiv] The court may believe partial strangulation is an injury, but partial strangulation alone is not autoerotic asphyxiation. By separating autoerotic asphyxiation into two parts, the court shifts the legal question to whether a reasonable person could conclude that partial strangulation is not intentionally injurious behavior. Instead, the legal question should focus on whether a reasonable person could conclude that autoerotic asphyxiation is not intentionally injurious behavior. As evidenced by the circuit split, these questions produce quite different answers.
II. THE ABSURD CONSEQUENCES OF THE SEVENTH CIRCUIT’S HARD-AND-FAST STRANGULATION RULE
The Seventh Circuit’s separation of autoerotic asphyxiation into two distinct components results in absurd outcomes when applied to other activities that contain an allegedly injurious component but are pursued for pleasure or enjoyment. Both the Second Circuit and the dissent in Tran recognize this possibility in the context of extreme sports.[xv] While that recognition, which is built on a discussion of the pursuit of risky activities, is a legitimate criticism of the Seventh Circuit’s reasoning, it misses a larger consequence of the Seventh Circuit’s hard-and-fast strangulation rule: the ruling in Tran takes risk out of the equation. If autoerotic asphyxiation can be separated into an injurious component and a pleasurable component and that injurious component can be used to exclude the act from coverage as a per se injury, the same reasoning could be used to exclude from coverage any act pursued for pleasure or enjoyment containing arguable injury, regardless of risk.
For example, Person X drowned after diving underwater in a lake. Diving underwater—an activity many people engage in for pleasure or enjoyment—requires both swimming and not breathing. Applying the different approaches of the circuit split results in different conclusions about diving underwater and illustrates the problem with the Seventh Circuit’s reasoning in Tran. Following the Second and Ninth Circuits’ reasoning, diving underwater cannot be divided into separate swimming and breath-holding components. Diving underwater is intrinsically both together; it is a whole but not any individual part. This analysis frames the legal question as whether a reasonable person could conclude that diving underwater is not intentionally injurious behavior. Thus, though Person X intentionally stopped breathing, Person X would not be found to have intentionally injured themselves unless a reasonable person could conclude that diving underwater is intentionally injurious behavior.
Following the Seventh Circuit’s reasoning in Tran produces a different, and incorrect, legal question. The Tran court’s reasoning separates diving underwater into two distinct components: the swimming component and the not breathing component. For the Seventh Circuit, diving underwater may be both together, but the individual part informs the understanding of the whole. This analysis frames the legal question as whether a reasonable person could conclude that not breathing is intentionally injurious behavior. Thus, since Person X intentionally engaged in diving underwater, Person X would be found to have intentionally injured themselves if a reasonable person could conclude that not breathing is intentionally injurious behavior. This is a fundamentally different question than whether a reasonable person could conclude that diving underwater is not intentionally injurious behavior. Since the circuits utilize the same subjective/objective test, the framing of the legal question becomes determinative of the outcome of the case. The Seventh Circuit’s incorrect ruling in Tran is a natural consequence of its incorrect construction of the legal question at issue.
[i]Tran v. Minnesota Life Ins. Co., 922 F.3d 380 (7th Cir. 2019).
[ii]Id. at 381.
[iii]Id. at 383 (noting the policy did not define “injury” and, thus, interpreting “the meaning of ‘injury’ as a layperson would commonly understand the word”).
[iv]Id. at 386.
[v]See Critchlow v. First UNUM Life Ins. Co., 378 F.3d 246 (2d Cir. 2004); Padfield v. AIG Life Ins. Co., 290 F.3d 1121 (9th Cir. 2002).
[vi]Compare Tran, 922 F.3d at 386 (holding strangulation is injury), withCritchlow, 378 F.3d at 260 (rejecting the conclusion of the lower court that partial strangulation is an injury in and of itself), and Padfield, 290 F.3d at 1128–30 (holding that the consequences of successful, non-fatal autoerotic asphyxiation are not injurious).
[vii]Order at 1, Tran, 922 F.3d 380 (No. 18-1723), No. 7016743. See generallyPlaintiff-Appellee’s Petition for Rehearing En Banc,Tran, 922 F.3d 380 (No. 18-1723), 2019 WL 2179470.
[viii]Tran, 922 F.3dat 385 (utilizing the two-step subjective/objective test); Critchlow, 378 F.3d at 257 (instructing the court first asks whether the insured subjectively lacked an expectation of injury and then, if so, asks whether that expectation was reasonable); Padfield, 290 F.3d at 1126 (“In determining whether death, or the injury that caused death, was unexpected or unintentional, courts have undertaken an overlapping subjective and objective inquiry.”).
[ix]Tran, 922 F.3d at 385 (“For an injury, we examine whether the injured individual had a subjective expectation of injuring himself, and if that cannot be determined, whether an expectation of injury was objectively reasonable.”).
[x]Id. at 384.
[xi]See Critchlow, 378 F.3d at 260–61; Padfield, 290 F.3d at 1128–29.
[xii]Tran, 922 F.3d at 384.
[xiii]Id. (“The insured . . . did not strangle himself in a nonlethal manner, then involuntarily shift into a different form of lethal strangulation.”).
[xiv]Tran, 922 F.3d at 387 (Bauer, J., dissenting) (“The majority cleaves the act [of autoerotic asphyxiation] into two separate actions: (1) the act of masturbation, and (2) the act of self-strangulation.”).
[xv]Id. at 389 (“Like the thrill seeker or extreme athlete who steps out of an airplane or purposefully exposes himself to outrageous conditions, the asphyxiophiliant is not necessarily acting injuriously.”); Critchlow, 378 F.3d at 262–63 (discussing the insurer’s argument that “extreme-sport” activities are not the same type of activity as autoerotic asphyxiation because extreme-sports involved “controlled risks” and extreme-sport athletes do not set out to injure themselves, and concluding that “[t]hese arguments provide no meaningful distinction” because practitioners of autoerotic asphyxiation “create escape measures precisely to control the risk; the effect sought . . . is a temporary effect that, absent an accident, is not injurious; and injury resulting from that practice is unintended”).