Circuit Split on Whether Autoerotic Asphyxiation = "Intentionally Self-Inflicted Injury"

And yet despite the split, I doubt that the Supreme Court would agree to take the case.

|The Volokh Conspiracy |

The decision is the Seventh Circuit's Tran v. Minn. Life. Ins. Co., handed down today, which disagrees with the Second and Ninth Circuits. (Thanks to Howard Bashman (How Appealing) for the pointer.)

The question is whether a life insurance "policy exclusion for deaths resulting from 'intentionally self-inflicted injury'" applied to autoerotic asphyxiation:

  • The majority said yes, because the person intentionally inflicted partial strangulation on himself, and "partial strangulation … is still an 'injury' as the term is commonly understood" even when it's not intended to lead to death: "For example, if [the person] had partially strangled another person, there would be no debate he had inflicted an injury."
  • The dissent, joining the Second and Ninth Circuits, said no, because the "conduct was undoubtedly risky but was not inherently injurious," since "when done correctly it can and does have a recreational purpose with no lasting health consequences."

The Seventh Circuit has a sort of automatic pre-publication en-banc review (Local Rule 40(e)), under which an opinion that creates a circuit split is circulated to the whole court to see if a majority of the active judges want to take the case en banc. The panel opinion reports that a majority didn't support review, though three judges did support it. In principle, the Supreme Court could now agree to hear the case, given the circuit split. But I doubt that it will:

Some cases get DIGged; this one would get infra digged.

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  1. Well, it may be awkward and elicit ghoulish giggles, but a circuit split is a circuit split. Who exactly is going to resolve it if not the Supreme Court?

    Each circuit court should be empowered to certify the existence of a disagreement with other circuits, and then the Supreme Court should be required to hear the ensuing appeal.

    Or maybe the Supremes are too busy doing something which “when done correctly…can and does have a recreational purpose…”

    1. The Court’s dodging of cases may serve their institutional purposes but not the country as a whole. But I guess barring impeachment there is no way to force the court to do anything.

      1. They could put more effort into finding new Justices who actually want to do the work, I suppose. Not an instant solution…

        1. Sorry. All of our efforts are put into finding new Justices who’ll vote our way on abortion.

  2. The fact that doing something to someone else against their will would constitute an injury hardly seems to be the appropriate test.

    If I push someone on a skateboard down a steep hill and they crash, that’s clearly risky and is going to result in an “injury”. Surely, though, if I am riding my own skateboard and decide to go down a steep hill knowing there is some risk of injury and happen to crash, that’s not a self inflicted injury for insurance purposes. If it is, many accidental deaths would fall into that category – including dying as a result of falling off a ladder while cleaning the gutters or dying as a result of crashing into a tree when skiing…

    1. Hmm, I would say that the spectre of an injury does not necessarily imply an injury, and so I would say that there is clear intent in this case of the mimicry of an injury but not necessarily an intent of self-inflicted injury in total. I do note that this action is distinct from simply participating in a risky activity such as tight-rope walking, in that an injury in the latter case is entirely dissimilar from the goal of the activity, yet here an entire strangulation would in a real sense be the ideal case.

      1. But I think (honestly I don’t know much about the matter) the goal of Autoerotic Asphyxiation is not to die but to experience some other sensation. Just like skiing, skydiving, or skateboarding sometimes the goal is not met or things don’t turn out as hoped.

        1. The relevant difference, I suppose, is that it is supposed to cause that other sensation by bringing you to the brink of killing yourself.

          Not so much skydiving, as skydiving while trying to open the chute at the last possible moment instead of a safe distance above the ground, for the added thrill.

          It’s kind of like those idiots who get their thrills hanging off the edges of buildings by their finger tips. Just because they’re not going to be injured at all unless they slip doesn’t mean it isn’t the sort of pastime an insurance company would properly take note of.

          1. “The relevant difference, I suppose, is that it is supposed to cause that other sensation by bringing you to the brink of killing yourself.”

            Which is different from skydiving because…

        2. Yes — the extreme sports analogy seems apt. Also, as an aside, this seems like a business opportunity for some kind of device with an automatic safety release. Or, who knows, maybe there already is something on the market (but there are not enough levels of incognito mode for me to want to google that).

          1. The liability insurance for selling a product designed to almost but not quite choke you to death would be rather expensive, I’d think.

            1. There’s this thing called a “damage waiver”…

          2. re: “maybe there already is something on the market”

            Oh, it’s not that hard. Most auto-asphyxiation “devices” are just rope tied the right way. Suicides involve tying off the rope above you such that your own weight tightens the knot and continues the process even after unconsciousness. An automatic safety release just involves reversing that process. Tie the rope such that when you pass out and collapse, the pressure on the knot releases. So, for example, tie the rope to the floor and stand up against it.

            1. Actually, the object of a proper hangman’s knot is not to tighten in such a way as to strangle the victim. Properly done with a proper hangman’s knot and a gallows, the object is a quick death by breaking the neck when the victim reaches the end of the rope without reaching the ground, not a slow death by strangulation.

              A simple loop knot and running the rope through the loop like a lasso might give you the desired effect, but there is little guarantee that any other knot type would release the tension on the neck just because tension is release from the rest of the rope.

              1. Yup. That’s why you don’t use a hangman’s knot in either scenario.

                1. Er, sometimes you use a hangman’s noose for symbolic reasons.

        3. As I said above (sorry I accidentally self-flagged my post), that other sensation that Autoerotic Asphyxiation is exactly the mimicking of strangulation and is more of a parody self-inflicted injury than anything else. I cannot recall an extreme sport that holds to this same role.

    2. “If I push someone on a skateboard down a steep hill and they crash, that’s clearly risky and is going to result in an “injury”. Surely, though, if I am riding my own skateboard and decide to go down a steep hill knowing there is some risk of injury and happen to crash, that’s not a self inflicted injury for insurance purposes.”

      You switched gears in mid-hypo. When it was the other guy, the risk was “going to” result in injury. But when it was you, it was no longer inevitable.

      The real problem: There’s lots of things that are perfectly safe and harmless if done correctly, but dangerous and harmful if done incorrectly. I don’t think we want to invalidate life insurance policies because of something that wasn’t intended.

    3. The test is “self-inflicted injury”, not “self-exposure to risk of injury”.

  3. Wait. If I am bitten by a snake, and I intentionally cut myself (to try and suck out the venom) or even amputate my own arm (to stop the venom from circulating and thereby killing me) . . . I’d be seen as violating the insurance clause? Heck, if I popped a pimple on my face–in the ‘triangle of death’ area, and that subsequently got infected and killed me, this would mean my heirs could not collect my insurance benefits, right…my injury was certainly self-caused and was intentional.

    Not sure if that result seems correct.

    1. “I intentionally cut myself (to try and suck out the venom)”

      This doesn’t work… it’s just a way to keep you occupied while you’re waiting to die.

      1. James,
        1. As a factual matter, you’re of course correct.
        2. But that does not impact in the least my hypo. In fact, the snake does not need to be venomous at all…if a harmless snake bites me, I mistakenly believe I’m gonna die from venom, so I cut myself to suck out the venom…and I die from my knife wound…this would be considered totally self-inflicted wounding, yes?

        1. Only if you’re also the snake in this hypo.

  4. I disagree with the Seventh here.

    Yes the intent with autoeroticism is to achieved heightened sexual pleasure by partially choking oneself to reduce oxygen in the body.

    This DOES NOT mean the person wanted to injure themselves and it was obviously an accidental death.

    Suppose I get a tattoo (which definitely injures the skin), and for some reason die as a result (e.g. shock, poisoned ink, etc.).

    Yes, I wanted to damage my natural skin but no, I didn’t want to die.

    Same here with autoerotic asphyxiation.

    Side note: I learned about this early in my fed career. We had a case where the guy set up an elaborate pulley system in his kitchen and even set up a camera. Everything was going well–until he realized he had placed the handcuffs on backwards (so he couldn’t reach the keyhole). He looked directly in the camera at this point but it was too late. The pulleys did their work and he died. Play safe kids!

    1. “Suppose I get a tattoo” — unless you tattoo yourself, that’s not self-inflicted.

      1. Not sure about that. If you walk into a tattoo parlor and pay money to have someone apply the tattoo to you, they are your legal agent for the duration of that transaction. As long as they are complying with their obligations during the transaction, in a sense they are you and the self-inflicted rules could apply.

        If you consider the precedents from insurance cases, there are many things you can’t do to your own property without waiving your insurance coverage (like light the building on fire). You can’t evade those restrictions by hiring someone else to do them for you.

    2. What if you pierce your own ear and die of an infection?

      1. What if you were writing on your hand with an inkpen, and you tripped and drove the pen through your hand, and then you died from the resulting infection? Writing on your hand is like vandalism, and if you vandalize someone else’s property, that’s a crime, right? Therefore it’s an injury, inflicted upon self.

  5. My condolences to Arthur L. Kirkland. Although nominally a Reverend, none would confuse him with a particularly pious man. Still, hell of a way to come and go. Did he have a deathbed conversion, so that he now joins the Honorable Merrick Garland in the great courthouse in the sky? Or are ALK and OWH spending their days somewhere a tad warmer, celebrating the genius of Buck v. Bell?

  6. Personally, this decision seems obviously wrong. The analogy I would draw is to an addict intentionally shooting up heroin. He knows that that every time he does so, there is a decent chance of an OD and death, but he does it anyway and rolls the proverbial dice. When he finally dies from that hot dose, his life insurance will have to pay out (assuming that he, like most heroin addicts, was conscientious about paying his premiums).

    1. Good analogy. Both involve deliberate (though temporary) physical injury to your own brain.

      1. When I actually read the case, I see that the denied claim was under an Accidental Death and Dismemberment policy. The insurer paid on the life insurance claim.

        That changes my analysis significantly — from “obviously wrong” to “most likely correct.”

        We regret the error.

  7. Injuries can include temporary injuries. It doesn’t say suicide, it says “self-inflicted injury.”

    1. How would adjudicate someone who got drunk, fell down in the street, and got hit by a car? That’s intentional, right, because they INTENDED to poison their own brain cells with alcohol?

  8. Before ERISA, this would have been decided on the basis of state law, not federal law, regarding the interpretation and application of insurance contracts.

    The SCOTUS isn’t fond of ERISA cases in general, and I’d think it particularly unfond of ERISA cases turning on the federal common law of insurance contract interpretation.

    I’m okay with this, so long as would-be auto-asphyxiators and insurance consumers in the respective circuits have fair constructive notice, toward which end this post is an excellent implement.

    1. Knowing little about ERISA, I was puzzled, thinking that whatever the circuits decided was a matter of state insurance law and that a split between federal circuits was of no more significance than a split between Utah and New York. I was obviously wrong, but I would have appreciated a bit more explanation of why ERISA governs and how.

  9. […] asphyxiation falls under insurance policy exclusion for “self-inflicted injury.” [Volokh; Tran v. Minnesota Life Insurance Company] In its commentary, the Institute for Justice is willing […]

  10. Injury? Yes. Self-inflicted? Yes. Masturbation is always self-inflicted. It’s kind of wrapped up in the definition of the word.
    End of opinion.
    Smart people (including judges) so often get wrapped up in possible different meanings of words. It’s ridiculous.

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