"Statistics on AEA are hard to come by, since deaths by asphyxiation are often reported as suicide."

Actually, the FBI keeps pretty good records. They have also published a profile to assist local law enforcement in determining whether the death was homicide, suicide or "misadventure". For example, the typical AES practitioner positions himself in front of a mirror or other reflective surface for the act. He is a user of visual pornography which will be found nearby. He may possess/wear women's or silken undergarments. He (and most practitioners are male) is of above average intelligence, well integrated socially, and is usually engaged in a demanding, high skill, high stress profession (pilots, doctors and lawyers abound)

I used the FBI profile in an appeal to the Circuit Court of Appeals here in NJ to argue that my client died accidentallywhile engaged in AES and that his estate was therefore eligible for death benefits under his life insurance policy. The typical insurance company argument is that the act was "intentional" and therefore, coverage is denied. This begs the question: If the act was intentional but the result accidental, is an insured entitled to benefits?

Most reported cases come out of Texas and Oklahoma, with California a distant third. I think it reflects jurisdictions where insurers think they have a chance to void coverage rather than a greater local incidence of the behavior. At last look the Circuits are split on the intent/result issue.

What they mean here is that the death certificate often omits this as the cause of death. The FBI would rarely be involved and would almost certainly, if this is all quieted by doctors taking the family's wishes into consideration, would have absolutely no way of ever knowing anything happened differently.

That's a tough call to make. The dead person DID do something known to be reasonably likely to result in their death, yet they weren't trying to die. Good luck with that one!

viretarmis:

"Statistics on AEA are hard to come by, since deaths by asphyxiation are often reported as suicide."

Actually, the FBI keeps pretty good records. They have also published a profile to assist local law enforcement in determining whether the death was homicide, suicide or "misadventure". For example, the typical AES practitioner positions himself in front of a mirror or other reflective surface for the act. He is a user of visual pornography which will be found nearby. He may possess/wear women's or silken undergarments. He (and most practitioners are male) is of above average intelligence, well integrated socially, and is usually engaged in a demanding, high skill, high stress profession (pilots, doctors and lawyers abound)

I used the FBI profile in an appeal to the Circuit Court of Appeals here in NJ to argue that my client died accidentallywhile engaged in AES and that his estate was therefore eligible for death benefits under his life insurance policy. The typical insurance company argument is that the act was "intentional" and therefore, coverage is denied. This begs the question: If the act was intentional but the result accidental, is an insured entitled to benefits?

Most reported cases come out of Texas and Oklahoma, with California a distant third. I think it reflects jurisdictions where insurers think they have a chance to void coverage rather than a greater local incidence of the behavior. At last look the Circuits are split on the intent/result issue.

I posted my piece before I read this.

I am well familiar with the "intentional" act exclusions, but all accidents arise from an intentional act, right? Isn't the typical analysis whether the consequences are a natural, foreseeable result of the activity?

Plenty of others have died because they used a plastic bag over their heads. The common practice of hiding in a closet for this activity also makes finding the person before it's too late, in the instances that saving them would be possible, that much harder.

Is it really so difficult for people to just use a pillow to self smother? Or just their other hand choking themself? In the event that a person passes out from AEA, that person's hand will release, and bloodflow and / or breathing will resume.

Doodah: In the case I handled, the district court judge was a bit less than open-minded. During oral argument on the SJ motion, he exclaimed "He did what with his what?!?" That was the end of Plaintiff's case and the reason for the appeal.

As to your analysis, while the risk of foreseeable harm may diminish recovery or even bar a plaintiff in an action grounded in tort, that issue would not arise in contract/ life insurance cases. Courts look to the language of the agreement, which is why intent remained the central issue on appeal. While there was no question the decedent was engaged in self strangulation, did he intend his death so coverage would be denied under the suicide exclusion? The FBI profile helped to persuade the insurer that he did not, but was rather engaged in an activity, albeit risky, that he intended to survive. The insured's comparative negligence or knowledge of the foreseeable risk played no role.

viretarmis:

Doodah: In the case I handled, the district court judge was a bit less than open-minded. During oral argument on the SJ motion, he exclaimed "He did what with his what?!?" That was the end of Plaintiff's case and the reason for the appeal.

As to your analysis, while the risk of foreseeable harm may diminish recovery or even bar a plaintiff in an action grounded in tort, that issue would not arise in contract/ life insurance cases. Courts look to the language of the agreement, which is why intent remained the central issue on appeal. While there was no question the decedent was engaged in self strangulation, did he intend his death so coverage would be denied under the suicide exclusion? The FBI profile helped to persuade the insurer that he did not, but was rather engaged in an activity, albeit risky, that he intended to survive. The insured's comparative negligence or knowledge of the foreseeable risk played no role.

Thanks for the explanation. So subjective intent trumps excessive recklessness? I wonder where the lines get drawn. If someone takes sleeping pills with the intent that they be discovered before they croak, but somehow the maid is late or the kids stay after school and the person does in fact die, is that still an accident? I suppose you could go on all day with scenarios.

viretarmis:

Doodah: In the case I handled, the district court judge was a bit less than open-minded. During oral argument on the SJ motion, he exclaimed "He did what with his what?!?" That was the end of Plaintiff's case and the reason for the appeal.

As to your analysis, while the risk of foreseeable harm may diminish recovery or even bar a plaintiff in an action grounded in tort, that issue would not arise in contract/ life insurance cases. Courts look to the language of the agreement, which is why intent remained the central issue on appeal. While there was no question the decedent was engaged in self strangulation, did he intend his death so coverage would be denied under the suicide exclusion? The FBI profile helped to persuade the insurer that he did not, but was rather engaged in an activity, albeit risky, that he intended to survive. The insured's comparative negligence or knowledge of the foreseeable risk played no role.

So for a potential suicide their family will still collect their life insurance if they can make it appear they had the *intent* to live? Like if someone wants to bungee jump off something but "forgets" to attach the other end of their cable to a bridge?

So subjective intent trumps excessive recklessness?

Sometimes in (life insurance) contract cases, but not in tort (negligence) cases. It's a strange dichotomy, I agree.

RIP Cain

viretarmis:

RIP Cain

Agreed-- although some may call it, "Bruce Lee's revenge".

Bondsman - That's the way that courts have dealt with suicide exclusions in life insurance matters. Bungee jumping is not meant to cause death. (Neither is AES) One's negligence in securing the line or "forgetting" to do so is not germane. One's intent to cause death is. Again, it's the difference between tort and contract law.

Thx for the info!