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Abstract

In recent years, the rate of poisoning deaths in the United States has been on the rise. Drugs–both legal and illegal-cause the vast majority of poisoning deaths. Drug poisoning deaths can result from unintentional or intentional overdoses of a drug, being given the wrong drug in error, or taking a drug inadvertently. Over the past decade, the age-adjusste drug poisoning death rate nearly doubled. Since 2009, more people have died each year from drug poisoning than from motor vehicle crashes. In 2010, 78 % of drug poisoning death were unintentional, 14 % were suicides, and 8 % were of undetermined intent. Drug abuse and misuse deaths generally fall into three categories: (a) those involving illicit drugs, such as cocaine and heroine; (b) those involving the deliberate abuse or unintended or unlawful use of therapeutic medications; and (c) those involving overdoses of prescription drugs that were lawfully prescribed for the insured. These are not necessarily neat classifications, however, because drugs of various sorts may be mixed together or combined with alcohol with disastrous consequences. Courts have historically considered insuresd’ death attributable to overdoses of illegal drugs to be nonaccidental. or constituted self-inflicted injuries. These courts typically reason that the dangers of illicit drug use are well known and an insured’s death should be deeemed to be nonaccidental where an insured has deliberately exposed himself to a substantial and foreseeable risk of serious injury or death, even if death is neither certain nor intended to result. In Weil v. Federal Kempfer Life Insurance Co., the Court opted to retain the accidental means versus accidental results dichotomy. The Court concluded that the insured is not entitled to coverage for such an death under an ‘accidetnal means’ policy, because he or she should know that death is a common, natural or substantially likely result of such activity. In Wickman v. Northwestern National Insurance Co., the court used three-prong test. The court first analyzes the insured's reasonable expectations. If the insured did not expect to suffer an injury similar to that suffered, the court must “examine whether the suppositions which underlay that expectation were reasonable.” If the insured's suppositions are judged to be unreasonable, then the injuries will be deemed non-accidental. In determining the reasonableness of the insured's suppositions, the court should view matters from the insured's perspective and take into account the insured's personal characteristics and experiences. The first prong, therefore, is essentially subjective. Second, if the insured expected to survive, or if the court cannot ascertain the insured's subjective expectations because of insufficient evidence, then it should objectively analyze the insured's expectations. In this analysis, one must ask whether a reasonable person, with background and characteristics similar to the insured, would have viewed the injury as highly likely to occur as a result of the insured's intentional conduct. The objective prong does not permit simplistic reasonable foreseeability analysis, as the requirement that a court consider whether the injury was “highly likely” makes clear. Drunk driving is a scourge. Most motor vehicle crashes are traceable to some failure of judgment that fully reveals its dangers only when it is too late. The fact that drunk drivers' deaths may be publicly perceived as senseless, as the natural cost of obvious negligence or recklessness, or as reprehensible acts of stupidity, does not mean that they are not accidental. Closely related to cases in which an insured overdoses on illegal drugs are those in which an insured knowingly abuses or misuses therapeutic medications or acquires or uses them unlawfully. Some courts see no material difference between illicit drug use and the knowing abuse of therapeutic drugs and deny coverage on the basis that insureds’ death are either nonaccidental or are intentionally self-inflicted. Other courts deny coverage based on drug exclusions. The final category of drug cases involves overdoses or lethal combinations of drugs that were lawfully prescribed for insureds or that were legally purchased over the counter. As with drug overdoses in other contexts, some courts have easily determined that the death of insureds in these cases are not accidental. More often, courts have denied coverage under exclusion for death caused by drugs except as prescribed by a physician. On the whole, however, courts have sided with beneficiaries in these cases at least as often as they have ruled for the insurers. The many disparate decisions concerning drug overdose death of all types as insurance accident are largely irreconcilable. Different courts often reach very different results on quite similar facts. Wickman test is a balanced analytical approach. Even if an insured’s death is determined to be accidental under the Wickman analysis, there still be no coverage if an exclusion applies. In drug overdoses or misuses cases, drug exclusions come into play. Although the exact language of exclusions varies, these exclusions typically provide that the policies in which they are incorporated do not cover “death caused by or resulting from the taking of any drug ‘unless taken on the advice of a physician,’ ‘unless administered on the advice of physician’, ‘except as prescribed by a physician’”. Such exclusions are easily applied to deny coverage in cases in which the insured consumed illicit drugs. In cases involving overdoses of therapeutic medications, phrases such as ‘unless administered on the advice of physician’ or’ except as prescribed by a physician’ must be understood to incorporate both the medication itself and the dosage.