In this series of articles, we are looking at the law governing Accidental Death and Dismemberment (AD&D) cases. These cases are litigated in both state and federal courts and a jurisprudence unique to this type of insurance litigation has developed. My focus in these articles is the law as developed in the Eleventh Circuit. The bulk of these cases are governed by Eleventh Circuit case law since ERISA often is the controlling law.
At the center of any AD&D case is the question of whether an “accident” occurred. Most of us will intuitively define fact patterns as fitting the definition of an “accident” and move on to the question of whether or not a policy exclusion applies. Such approach sometimes works but often doesn’t. Many courts construe fact patterns narrowly to find that there was no “accident’ and thus no case.
Broadly speaking courts within the Eleventh Circuit have followed three divergent approaches to determining whether an “accident” occurred. The applicable approach depends upon the applicable law. The Eleventh Circuit honors choice of law provisions in AD&D policies so one must first look to see if a specific state’s laws was adopted in the policy. If specified, that’s state’s law will be applied. Conversely, if no applicable law is specified, the court will apply federal common law.
State-law-developed “accident” jurisprudence falls into either carrier favorable or unfavorable camps. Some states have adopted an “accidental means” approach to defining “accident” while others have adopted an “accidental results” test. In “accidental means” states like Georgia the focus is on the act that ultimately results in death or dismemberment. If that act was undertaken intentionally and voluntarily the subjective belief that serious injury or death would not occur from that act is usually irrelevant unless something sudden, unforeseen or unexpected happened during commission of the act. “Accidental means” jurisprudence is decidedly carrier friendly, In other states like Alabama the test is purely subjective: if death or serious injury was not contemplated by commission of the act then an “accident” usually is established. This approach is far more favorable to policyholders.
In the absence of a choice of law provision, the Eleventh Circuit follows a “subjective/objective” test developed in the federal common law that was first adopted by the First Circuit in the seminal Wickman case. The Wickman approach mandates looking first to the decedent’s subjective frame of mind. If the evidence shows that he knew he was risking death or serious injury by taking the action contemplated the inquiry ends there. In the absence of such evidence, or if the decedent did not subjectively contemplate death or serious injury, then the analysis turns to an objective reasonable person’s standard i.e. whether a reasonable person would have appreciated a substantial risk of death or injury from the action in question. If the answer is “yes” the analysis ends there and coverage fails.
The determination of whether or not an “accident” occurred is often overlooked by novice AD&D practitioners who beeline to the question of whether a policy exclusion applies. One has to first deal with the “accident” question. Some courts have categorically excluded classes of claimants such as intoxicated drivers from AD&D coverage without even getting to an intoxication exclusion.
If a case survives the “accident” question, then the focus turns to whether one or more policy exclusions apply. In the following articles we will turn our attention to these exclusions in detail. If you would like us to focus on a particular AD&D topic in a future article, please leave a comment below.
