LeTran Tran v. Minnesota Life Insurance Comp ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1723
LETRAN TRAN,
Plaintiff-Appellee,
v.
MINNESOTA LIFE INSURANCE
COMPANY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17-cv-450 — Robert M. Dow, Jr., Judge.
____________________
ARGUED OCTOBER 24, 2018 — DECIDED APRIL 29, 2019
____________________
Before BAUER, MANION, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Linno Llenos died engaging in an
act known as autoerotic asphyxiation. His widow and benefi-
ciary, LeTran Tran, filed a claim with Minnesota Life Insur-
ance Company, seeking the proceeds from Llenos’s
ERISA-governed life insurance policies. Minnesota Life paid
most of her claims but denied coverage under Llenos’s Acci-
dental Death & Dismemberment policy riders. Minnesota Life
2 No. 18-1723
determined Llenos’s death was not accidental and fell under
a policy exclusion for deaths resulting from “intentionally
self-inflicted injury.” The district court reversed, ruling that
Llenos’s death qualified as an accidental death and did not
result from an intentionally self-inflicted injury.
Because a reasonable person would interpret Llenos’s
cause of death, autoerotic asphyxiation, to be an “intention-
ally self-inflicted injury,” we reverse.
I. Background
The facts are not in dispute. In August 2016, while home
alone in Wilmette, Illinois, Llenos hung a noose from a ceiling
beam in his basement, stood up on a stool with the noose
around his neck, and stepped off. Llenos died as a result.
When Tran came home, she found her husband’s body hang-
ing in the basement and immediately called police. Though
his death was initially reported a suicide, the medical exam-
iner subsequently concluded from sexual paraphernalia on
Llenos’s body that he died performing autoerotic asphyxia-
tion.
Autoerotic asphyxiation is a sexual practice by which a
person purposefully restricts blood flow to the brain to induce
a feeling of euphoria. “Asphyxiophilia” as defined in the
DSM-5 is a subset of sexual masochism disorder, by which an
“individual engages in the practice of achieving sexual
arousal related to restriction of breathing.” AMERICAN
PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 694 (5th ed. 2013). The pleas-
urable feeling experienced during autoerotic asphyxiation de-
rives from cerebral hypoxia, or brain cell death from
deprivation of oxygen. Acute to severe hypoxia can lead to
No. 18-1723 3
loss of consciousness in ten to twenty seconds, permanent
brain damage in three minutes, and death in four to five
minutes.
Llenos was covered by two life insurance policies, a Basic
Insurance Policy and a Supplemental Insurance Policy. These
provided $517,000 in coverage. Each policy also included
Accidental Death & Dismemberment (“AD&D”) policy rid-
ers. The Basic Insurance Policy provided an additional
$10,000 of AD&D coverage, and the Supplemental Insurance
Policy provided an additional $50,000 of AD&D coverage.
After her husband’s death, Tran filed a claim with Minne-
sota Life, which paid the $517,000 but denied Tran’s claim for
the additional $60,000 in AD&D coverage based on two pro-
visions (with identical text) in the policy riders. Minnesota
Life concluded Llenos’s death was not “accidental” under the
AD&D riders. The insurer also took the position that Llenos’s
death fell under an exclusion for intentionally self-inflicted
injury, which states:
In no event will we pay the accidental death or
dismemberment benefit where an insured’s
death or dismemberment results from or is
caused directly by any of the following: … in-
tentionally self-inflicted injury or any attempt at
self-inflicted injury, whether sane or insane…”
(emphasis added). Tran appealed the decision internally at
Minnesota Life and again was denied.
Tran then brought an action under the Employee Retire-
ment Income Security Act (“ERISA”), 29 U.S.C.
§ 1132(a)(1)(B), seeking the AD&D coverage payouts. After
reviewing the stipulated facts from both parties, the district
4 No. 18-1723
court awarded judgment in favor of Tran under FED. R. CIV.
P. 52(a). The court ruled that Minnesota Life had conceded the
death was accidental, and the only issue in dispute was
whether autoerotic asphyxiation qualified as an “injury”
under the policy’s language. After reviewing precedent on
autoerotic asphyxiation from other circuits, the court deter-
mined that reasonable minds could disagree about whether
Llenos’s intentional inducement of cerebral hypoxia was a
self-inflicted injury within the meaning of the AD&D rider
language. Because all policy ambiguities must be construed
in favor of coverage, the district court ruled that the exclusion
for intentional injuries did not apply to autoerotic asphyxia-
tion and entered judgment in favor of Tran. Minnesota Life
filed this appeal.
II. Discussion
Challenges to ERISA benefit determinations under
29 U.S.C. § 1132(a)(1)(B) are reviewed de novo when, like
here, the plan does not grant discretionary authority to the
plan fiduciary. Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989); Cheney v. Standard Ins. Co., 831 F.3d 445, 449
(7th Cir. 2016). We apply federal common law to interpret pol-
icy terms. Schultz v. Aviall, Inc. Long Term Disability Plan,
670 F.3d 834, 838 (7th Cir. 2012). The federal common law of
insurance contracts requires “that Plan terms be interpreted
in an ‘ordinary and popular sense, as [they] would [be under-
stood by] a person of average intelligence and experience.’”
Sellers v. Zurich American Ins. Co., 627 F.3d 627, 632 (7th Cir.
2010) (quoting Cannon v. Wittek Cos. Intern., 60 F.3d 1282, 1284
(7th Cir. 1995)). Where terms are ambiguous, courts construe
them in favor of coverage. Santaella v. Metropolitan Life Ins. Co.,
123 F.3d 456, 461 (7th Cir. 1997).
No. 18-1723 5
Minnesota Life first challenges the district court’s finding
that the insurer waived its position that Llenos’s death was
not “accidental” under the language of the AD&D riders. But
because the riders stipulate an accidental death is still
excluded if it “result[ed] from or was caused directly by … in-
tentionally self-inflicted injury,” and that is dispositive of this
case, we address only the exclusions. To determine whether
Llenos’s death is excluded from AD&D coverage, we must
determine first whether autoerotic asphyxiation is an
“injury,” and second, whether that injury was “intentionally
self-inflicted.”
A. Autoerotic Asphyxiation As “Injury”
We interpret the meaning of “injury” as a layperson
would commonly understand the word. Sellers, 627 F.3d at
632. The district court’s analysis of whether autoerotic
asphyxiation (and the accompanying cerebral hypoxia) is an
injury relied on three cases: a 1997 case from our court,
Santaella v. Metropolitan Life Ins. Co.; Padfield v. AIG Life Ins. Co.,
290 F.3d 1121 (9th Cir. 2002); and Critchlow v. First Unum Life
Ins., America, 378 F.3d 246 (2nd Cir. 2004). In Santaella, we held
that an accidental overdose death did not result from inten-
tionally self-inflicted injury because there was no evidence the
woman intended to injure herself when she took too much of
a legal prescription painkiller. 123 F.3d at 465. Here, the dis-
trict court applied Santaella to the question of injury because
it was “cited approvingly by the Ninth Circuit in Padfield … .”
Tran v. Minnesota Life Ins. Co., No. 17-cv-450, 2018 WL
1156326, at *7 (N.D. Ill. Mar. 5, 2018).
But Padfield did not rely on Santaella for its determination
that autoerotic asphyxiation is not an injury. Padfield cited
Santaella in support only of its “intentionally self-inflicted”
6 No. 18-1723
analysis. 290 F.3d at 1129–30. Indeed, Santaella sheds little
light on the question of whether autoerotic asphyxiation is an
injury, because the opinion did not explore the issue in any
depth. In Santaella, we simply stated the facts did not show
that the insured meant to injure herself. 123 F.3d at 465. The
dose the insured ingested was relatively low to be fatal, and
she was unaware of other medical conditions that made her
particularly susceptible to an overdose. Id. There was no evi-
dence “she was aware of the risk of serious injury or death”
when she ingested the painkiller. Id. The entire discussion of
injury amounted to only two paragraphs and was largely
dependent on the case’s facts. For these reasons, we do not
find Santaella instructive on whether autoerotic asphyxiation
is an injury. 1
We turn next to the other two cases the district court relied
on, Padfield and Critchlow. Both dealt with deaths by autoe-
rotic asphyxiation, and both addressed policy exclusions for
intentionally self-inflicted injury. This court has never
adopted the reasoning used in Padfield and Critchlow, and we
decline to do so here. 2 We find both cases grounded on a false
1 While Santaella does not speak much to injury, we agree with the
dissent that its subjective/objective framework applies to whether an act
was intentional or accidental, discussed further in Part II.B.
2 Our research did not yield any other circuit courts adopting the hold-
ings in Padfield or Critchlow. Some federal district courts have rejected
Padfield and Critchlow and found that autoerotic asphyxiation is an inten-
tionally self-inflicted injury under a de novo standard. See, e.g., Bryant v.
AIG Life Ins. Co., 2002 WL 34504617, at *5 (W.D. Mich. Nov. 27, 2002)
(“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
No. 18-1723 7
premise: that the act of strangling oneself is severable into dis-
tinct phases and distinct injuries. In Padfield, for example, the
Ninth Circuit reasoned that what killed the insured was not
the autoerotic asphyxiation, but the continued asphyxiation
that occurred after he blacked out. Padfield, 290 F.3d at 1129.
The same reasoning was applied in Critchlow, in which the
Second Circuit found that Critchlow’s death “was not caused
by ‘partial’ strangulation but by the total loss of oxygen for a
sustained period.” 378 F.3d at 260.
We reject such reasoning because it artificially separates
one continuous act into two or more parts. The insured in
Padfield did not strangle himself in a nonlethal manner, then
involuntarily shift into a different form of lethal strangulation.
He pulled a necktie tightly around his neck to cut off oxygen
to his brain; as the self-strangulation continued, he gradually
lost consciousness and eventually died. Padfield, 290 F.3d at
asphyxiation comes within the plain meaning of ‘intentionally self-
inflicted injury.’”). At least one state supreme court also has concluded
autoerotic asphyxiation is an intentionally self-inflicted injury. MAMSI
Life & Health Ins. Co. v. Callaway, 825 A.2d 995, 1007 (Md. 2003) (“We con-
clude that a layperson would understand partial strangulation to be an
injury as that term is commonly used.”); see also Book v. Monumental Life
Ins. Co., 723 N.W.2d 208 (Mich. Ct. App. 2006) (following Callaway).
We have located only about 20 autoerotic asphyxiation cases in federal
court, and many are decided under the abuse of discretion standard, not
de novo as here. In 2009, the Fifth Circuit in a per curiam decision affirmed
the district court’s decision that autoerotic asphyxiation is an intentionally
self-inflicted injury, Estate of Thompson v. Sun Life Assur. Co. of Canada, 354
F. App'x 183, 186 (5th Cir. 2009), but that was under the abuse of discretion
standard.
8 No. 18-1723
1123–24. The insured in Critchlow died under very similar cir-
cumstances. Critchlow, 378 F.3d at 250. For both men, there
was no intervening cause, and no break in the chain of causa-
tion: one act of autoerotic asphyxiation caused the hypoxia
that killed them. The same reasoning applies here: Llenos
placed a noose around his neck and stepped off a stool, stran-
gling himself. The resulting hypoxia caused his euphoria, his
black out, and his death—all the result of one intentionally
inflicted injury.
Even if we accept the Ninth Circuit’s premise that Llenos’s
autoerotic asphyxiation injury could be viewed in different
“stages” of strangulation, the partial strangulation he sought
to inflict is still an “injury” as the term is commonly under-
stood, and thus falls within the exclusion. See, e.g., MAMSI Life
& Health Ins. Co. v. Callaway, 825 A.2d 995, 1007 (Md. 2003)
(“We conclude that a layperson would understand partial
strangulation to be an injury as that term is commonly
used.”). The Ninth Circuit disagreed, holding that no “per-
sons of average intelligence and experience” would consider
partial strangulation to be an injury. Padfield, 290 F.3d at 1129.
To the contrary, we find that an ordinary person would con-
sider choking oneself by hanging from a noose to be an injury,
even if that strangulation is only “partial.” For example, if
Llenos had partially strangled another person, there would be
no debate he had inflicted an injury. The criminal codes
within our circuit confirm this: in Wisconsin, Indiana, and
Illinois, partial strangulation not resulting in death is a prose-
cutable offense. See, e.g., WIS. STAT. § 940.235 (2007), (“Stran-
gulation and Suffocation”); IND. CODE § 35-42-2-9 (2017)
(“Strangulation”); People v. James, 2017 IL 160148-U, ¶ 21
(affirming a finding of “great bodily harm” when the stran-
gulation victim survived, but during strangulation “could not
No. 18-1723 9
breathe, lost consciousness, and suffered bruising to the
neck.”). Partial strangulation, even when not intended to
cause death, is an injury. See, e.g., Critchlow, 378 F.3d at 265
(Van Graafeiland, J., dissenting) (“Partial strangulation is an
injury. A suicidal motive is not required.”).
The dissent asserts we have ignored the sexual nature and
pleasurable aim of autoerotic asphyxiation. Even acknowl-
edging both, we fail to see their relevance. That Llenos
performed the act on himself and enjoyed the accompanying
euphoria does not make partial strangulation less of an injury.
Compare this with someone who engages in nonsuicidal self-
injury, such as by cutting or burning himself. See AMERICAN
PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL
MANUAL OF MENTAL DISORDERS 803 (5th ed. 2013) (DSM-5)
(defining “Nonsuicidal Self-Injury” as when an individual
has “engaged in intentional self-inflicted damage to the sur-
face of his or her body of a sort likely to induce bleeding,
bruising, or pain … with the expectation that the injury will
lead to only minor or moderate physical harm (i.e., there is no
suicidal intent).”). The individual has still suffered an injury,
regardless of the desired side effects. Autoerotic asphyxiation
is no different. See Callaway, 825 A.2d at 1007 (Md. 2003)
(“That the injured party also derived pleasure from the self-
inflicted injury [of autoerotic asphyxiation] does not mean
there was no injury.”).
Nor do we find relevant the popularity of autoerotic
asphyxiation. The dissent contends no one would practice
autoerotic asphyxiation if it were commonly understood to be
an injury. This ignores scientific and psychological evidence
to the contrary, including the DSM-5 which has an entire sec-
tion that deals exclusively with sexual masochism disorder,
10 No. 18-1723
defined as “sexual arousal from the act of being humiliated,
beaten, bound, or otherwise made to suffer …” DSM-5 at 694 (em-
phasis added). The same section defines autoerotic asphyxia-
tion as a subset of sexual masochism disorder. Some people
enjoy harming themselves. That harm is still an injury,
regardless of its popularity or the pleasure some people may
derive from it.
We also disagree with the Second Circuit’s determination
in Critchlow that oxygen deprivation, not partial strangula-
tion, was the injury that killed the insured. See Critchlow, 378
F.3d at 260 (“Critchlow’s death was not caused by ‘partial’
strangulation but by the total loss of oxygen for a sustained
period.”). Again, this improperly parses the causal chain of
events: strangulation (the “injury”) causes hypoxia, which
leads to euphoria, then blackout, and eventually death. The
Second Circuit’s decision in Critchlow obscures the actual
cause of death in autoerotic asphyxiation fatalities. For
Llenos, as for the insured in Critchlow, there was no interven-
ing cause or break in the chain of causation: absent the stran-
gulation injury, Llenos never would have experienced
hypoxia (and euphoria), lost consciousness, and died. Autoe-
rotic asphyxiation was the ultimate and the proximate cause
of Llenos’s death. According to the language of the exclusion
in the AD&D riders, then, the act of autoerotic asphyxiation
was the “injury” that killed Llenos.
B. “Intentionally Self-Inflicted”
Having determined autoerotic asphyxiation is an injury,
the remainder of our inquiry is straightforward. We decide
whether an act was accidentally or intentionally done—as re-
quired by the “intentionally self-inflicted” exclusion in the
AD&D riders—by applying the subjective/objective test we
No. 18-1723 11
adopted in Santaella. 123 F.3d at 462–63. For an injury, we
examine whether the injured individual had a subjective
expectation of injuring himself, and if that cannot be deter-
mined, whether an expectation of injury was objectively
reasonable. 3 Id. Here, we need not reach the objective step in
the analysis, because Llenos’s subjective intent was clear. 4
Llenos intentionally performed autoerotic asphyxiation. Be-
cause that act itself is an injury, Llenos’s death falls under the
policy exclusion for intentionally self-inflicted injuries.
This holding does not conflict with our holding in
Santaella, as the dissent and the Ninth Circuit suggests. See
Padfield, 290 F.3d at 1130 (“This case is analytically identical to
Santaella.”). In Santaella, we concluded there was no record ev-
idence to indicate the insured had intended to injure herself
by taking the prescription painkiller. Santaella, 123 F.3d at 465;
3 The Second and Ninth Circuits have likewise applied the subjec-
tive/objective test to “intentionally self-inflicted injury.” See Critchlow, 378
F.3d at 259; Padfield, 290 F.3d at 1129. But Critchlow took the analysis a step
further and decided that no intentionally self-inflicted injury is present
where there was an objectively reasonable expectation of survival.
Critchlow, 378 F.3d at 259 (“As to Critchlow’s subjective intent, it has never
been disputed that his death was subjectively unexpected and unintended.”)
(emphasis added). This conflates the injury analysis with the accidental
death analysis; no suicidal intent is required for a finding of intentionally
self-inflicted injury. In this regard, we do not follow Critchlow.
4 The dissent’s discussion and reliance on the objective prong of San-
taella raises an interesting question. The dissent discusses the various
prophylactic measures Llenos took to avoid injury, such as a protective
towel around the neck to avoid abrasion. Why, if the person did not think
injury was a substantial certainty, would he use prophylactic measures
during the act to mitigate injury?
12 No. 18-1723
see also Padfield, 290 F.3d at 1131 (Leavy, J., dissenting) (distin-
guishing the overdose in Santaella from autoerotic asphyxia-
tion). That differs from here: Llenos intentionally strangled
himself so he could experience hypoxia-induced euphoria.
That strangulation itself, partial or otherwise, was an injury
that he intentionally inflicted on himself, unlike the insured
in Santaella.
Strangling oneself to cut off oxygen to one’s brain is an in-
jury, full stop. When that injury kills, it is “an intentionally
self-inflicted injury which resulted in death,” regardless of
whether it was done recreationally or with an intent to sur-
vive. Padfield, 290 F.3d at 1131 (Leavy, J., dissenting); Callaway,
825 A.2d at 1007. Under the plain and ordinary meaning of
Llenos’s AD&D riders, his death is excluded from coverage. 5
III.
This opinion does not purport to establish a per se rule on
insurance coverage for autoerotic asphyxiation. Interpreta-
tions of insurance policies are rarely amenable to per se rules
because the policy language and factual circumstances in-
volved in a death can vary, sometimes greatly. See, e.g., Todd
v. AIG Life Ins. Co., 47 F.3d 1448, 1453 (5th Cir. 1995) (declining
to establish a per se rule on whether autoerotic asphyxiation
deaths are accidental); Cozzie v. Metropolitan Life Ins. Co., 140
F.3d 1104, 1110 (7th Cir. 1998) (declining to establish a per se
5
This opinion has been circulated under Circuit Rule 40(e) among all
judges of this court in regular active service. A majority did not favor re-
hearing the case en banc on the question of creating a conflict with the
Second Circuit in Critchlow and the Ninth Circuit in Padfield. Chief Judge
Wood and Circuit Judges Rovner and Hamilton voted to grant rehearing
en banc.
No. 18-1723 13
rule on whether drunk driving deaths are accidental). But
under the language of this policy’s exclusion for AD&D cov-
erage, Llenos died from an “intentionally self-inflicted in-
jury.” Even assuming Llenos’s death were accidental, Tran is
not entitled to AD&D coverage and an additional $60,000
payment.
For these reasons, we REVERSE the judgment.
14 No. 18-1723
BAUER, Circuit Judge, dissenting. I would affirm the
decision of the district court. The district court found that
reasonable people could conclude that Linno Llenos’
(“Llenos”) cerebral hypoxia was not an intentional injury
under the terms of Minnesota Life Insurance Company’s
Accidental Death & Dismemberment policy riders (“Rider”)
and his death was an unexpected and unforeseen accident.
Because reasonable people could conclude that his death was
an accident, and ambiguities in the plan must be construed in
favor of coverage, I believe that the district court properly
determined that Llenos’ death is covered by the Rider.
As the majority notes, the facts surrounding Llenos’ death
are not in dispute. During an act of manual-stimulation, Llenos
engaged in self-strangulation. He hung himself by the neck
and was unable to free himself before succumbing to cerebral
hypoxia and ultimately death.
The district court’s determination of whether the Rider’s
terms are ambiguous is subject to de novo review and construed
in favor of the insured. Cheney v. Standard Ins. Co., 831 F.3d 445,
450 (7th Cir. 2016). Findings of fact “must not be set aside
unless clearly erroneous[.]” Fed. R. Civ. P. 52(a)(6). “‘[A]
finding is clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.’” Madden v. United States Dep’t of Veterans Affairs,
873 F.3d 971, 973 (7th Cir. 2017) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
The majority focuses its analysis on two prongs: whether
autoerotic asphyxiation is an injury and, if so, whether the
injury was intentionally self-inflicted. It concludes that because
Llenos intentionally engaged in the sexual act which led to his
No. 18-1723 15
death, even though his death was an accident, he is not entitled
to coverage under the Rider. This analysis separates the
manual-stimulation from the self-strangulation and errone-
ously concludes that autoerotic asphyxiation is an injury.
The majority cleaves the act into two separate actions:
(1) the act of masturbation, and (2) the act of self-strangulation.
This confuses the analysis; it erroneously divides one global
process into two distinct acts and the majority focuses solely on
the strangulation aspect while ignoring the contemporaneous
masturbatory act. So, the question should be: could reasonably
intelligent people conclude autoerotic asphyxiation is not
intentionally injurious behavior? I believe they can.
When examining whether or not autoerotic asphyxiation is
an injury, our analysis in Santaella and our sister circuits’
perspective on the question is illuminating. Santaella v. Metro.
Life Ins. Co., 123 F.3d 456 (7th Cir. 1997).
In Santaella, this Court adopted the Fifth Circuit’s method-
ology for analyzing whether a death under an accidental death
policy was accidental: the court must determine “(1) that the
deceased had a subjective expectation of survival, and (2) that
such expectation was objectively reasonable which it is if death
is not substantially certain to result from the insured’s con-
duct.” Santaella, 123 F.3d at 463 (quoting Todd v. AIG Life Ins.
Co., 47 F.3d 1448, 1456 (5th Cir. 1995)). The same analysis
should be imported to the question of whether or not the act at
bar—autoerotic asphyxiation—is injurious; that is to say, did
the practitioner reasonably expect not to injure himself and
was that expectation objectively reasonable.
In Santaella, like here, there was no factual dispute. The
decedent intentionally took a mild prescription pain killer and
suffered an overdose. The medical examiner ruled out natural
16 No. 18-1723
causes, suicide, homicide, and unknown causes and concluded
that the decedent’s death was the result of an overdose from
propoxyphene at a level less than one-third the typically lethal
blood level. This Court concluded that because the decedent
had subjective expectation of survival and the objectively
reasonably person would not think death a substantial cer-
tainty, the death was an accident.
Here, there is evidence that Llenos intended to weather the
masturbatory episode unscathed. During the course of the
investigation, Llenos’ wife informed police that he was not
suicidal, that the family’s finances were secure, and she did not
think he committed suicide. The report further states that there
were prophylactic measures in place to mitigate the risk of
injury during the act, specifically, a towel wrapped around his
neck, his foot resting on a step stool, and a possible release
mechanism. Lastly, the coroner found rubber rings around
Llenos’ genitals and noted that his “pubic hair was shaved in
a semi-circular pattern consistent with prior use[.]” The record,
limited thought it may be, indicated Llenos had a history of
engaging in autoerotic asphyxiation and doing so without
injury, leading one to the belief that the act, as it was intended
to be performed, was not injurious.
Because the first prong of the analysis is satisfied, we
should look to whether such expectation was objectively
reasonable—that is to say injury was not substantially certain.
For injury to be the substantially certain result of autoerotic
asphyxiation, the objectively reasonable person would have to
expect that the injury was the likely outcome from the act. See
Santaella, 123 F.3d at 462 (quoting Wickman v. Nw. Nat. Ins. Co.,
908 F.2d 1077, 1088 (1st Cir. 1990)); see also Med. Protective Co.
of Fort Wayne, Indiana v. Am. Int’l Specialty Lines Ins. Co., 911
F.3d 438, 449 (7th Cir. 2018), reh’g denied (Jan. 29, 2019) (briefly
No. 18-1723 17
discussing substantial certainty in the known loss context as
“virtually inevitable”). This objective prong was also discussed
by our sister circuits.1
In Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1127 (9th Cir.
2002), and Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d
246, 258 (2d Cir. 2004), the Ninth and Second Circuits acknowl-
edged that asphyxiophilia and autoerotic asphyxiation are
widely practiced sexual acts. If it were objectively reasonable
to conclude that an injury, as commonly understood, was the
likely result of autoerotic asphyxiation there would be few if
any repeat practitioners. Moreover, autoerotic asphyxiation has
permeated popular culture and has become a commonplace
punchline. Accordingly, I believe the objective prong of the
analysis is satisfied.
Because Llenos had a subjective expectation of escaping
unscathed and the objectively reasonable person would not
think an injury was a substantial certainty, his death should
not be deemed the result of an intentional injury. Therefore, the
Rider’s exclusion would not apply.
The majority’s position incorrectly separates the masturba-
tion from the asphyxiation and as a result creates a rule where
it will always be excluded from coverage under an accidental
death & dismemberment policy that includes an intentional
injury exclusion. Llenos’ conduct was undoubtedly risky but
was not inherently injurious. The determination that autoerotic
asphyxiation is an injury ignores that fact that when done
1
Like the majority, I decline to adopt the analysis in either Padfield or
Critchlow because they unnecessarily parse one continuous event into
distinct phases.
18 No. 18-1723
correctly it can and does have a recreational purpose with no
lasting health consequences.
By contrast, in the case of the skydiver or bungee jumper
whose equipment malfunctions, the injury is the sudden stop
when the thrill seeker crashes back to earth, but the act—the
jump—was an intentional one. But, the subjective and objective
intent was to survive. Like the thrill seeker or extreme athlete
who steps out of an airplane or purposefully exposes himself
to outrageous conditions, the asphyxiophiliant is not necessar-
ily acting injuriously.
The majority focuses its inquiry on the injury aspect of
Llenos’ self-strangulation incorrectly concluding that any
amount of asphyxiation is injurious and therefore autoerotic
asphyxiation must be excluded under the Rider. But, as the
district court points out, “reasonable minds could differ on
whether the term ‘injury’ as used in the [Rider] includes
Llenos’ induction of cerebral hypoxia under the facts of this
case.”
Because reasonable minds can differ about whether or not
autoerotic asphyxiation would be an intentionally inflicted
injury, it creates an ambiguity in coverage, and ambiguities
must be resolved in favor of coverage. Minnesota Life is in the
best position to remedy this ambiguity by expressly excluding
coverage for such inherently dangerous activities, as other
insurance providers have done. See Johnson v. Am. United Life
Ins. Co., 716 F.3d 813, 817 (4th Cir. 2013) (noting a policy
exclusion for “hang-gliding, bungee jumping, automobile
racing, motorcycle racing, skydiving, rock climbing, or
mountain climbing.”); Kovach v. Zurich Am. Ins. Co., 587 F.3d
323, 336 (6th Cir. 2009) (noting policy exclusions for
No. 18-1723 19
“skydiving, parasailing, hangglinding [sic], bungee-jumping,
or any similar activity.”).
In conclusion, I would affirm the decision of the district
court. The district court properly concluded that cerebral
hypoxia was not an intentional injury and Llenos’ death was
an unforeseen accident. Autoerotic asphyxiation is an inher-
ently dangerous sexual practice. The matter at hand shows that
even seasoned practitioners can succumb to cerebral hypoxia
and die. Therefore, I respectfully DISSENT.