Turns out that the key word in the accidental death and dismemberment insurance that many people get through their employers (and which is therefore an ERISA governed benefit) is “accidental.” The United States District Court for the District of Massachusetts has an interesting opinion out that details the applicable standards for determining whether a particular death is accidental for these purposes, and finding that an insured’s death after driving while intoxicated does not qualify. This issue comes up a lot, unfortunately, and I have talked about it before here and here. The newest decision out of Massachusetts on this topic, McGillivray v. Life Insurance Company of North America, is an interesting example of this type of case, and reflects two particular points: first, the continuing influence in this area of the law of the First Circuit’s 1990 decision in Wickman v. Northwestern National Ins. Co., which laid out the standards for determining if a particular death is accidental for these purposes; and second, that the weight of authority is running heavily towards a general rule that deaths arising from automobile accidents in which the employee was intoxicated simply do not constitute accidents for these purposes and are not covered.
In truth, it is fair to say that we have reached the point that (although the courts never come right out and say this) there is, in effect, essentially a rebuttable – and if that, just barely – presumption that an intoxicated employee who dies in a drunk driving accident is not covered under these policies. The standard test, crafted in the Wickman case, that courts apply to determine whether or not a particular death was an accident for these purposes, when applied to the typical facts of these type of cases, simply leads inexorably to a loss of coverage.
I remember being dressed down in a first year law school class on torts for suggesting – apparently contrary to the professor’s belief – that a particular rule of recovery should be shifted so as to sanction the driver who engages in the socially disapproved activity – such as intoxication – in favor of the other driver. Twenty years later, the courts seem to be saying the same thing I said, essentially taking the intoxicated driver out of the range of those who can be covered under accidental death and dismemberment policies.
The case, by the way, is also interesting for a number of other reasons that warrant giving it a quick read, including not least its analysis of whether statistical studies concerning the likely outcome of drunk driving should be considered and, if so, the weight to give them. Beyond that, this is another case that contradicts a particular chestnut held by many, which is the belief that the standard of review applied in ERISA cases is the be all and end all; I don’t hold with this thesis, and believe that the facts of the administrator’s handling of a particular claim are much more likely to dictate the outcome of a case, without regard to which particular standard of review a particular court applies to a case. In a footnote that I particularly enjoyed, the court commented that “In all candor, the Court must note that even if it were to apply a de novo standard rather than an ‘arbitrary and capricious’ standard, the Court, applying the Wickman test, would find that Mr. McGillivray’s death was not the result of an ‘accident.’"