The Volokh Conspiracy
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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 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.
