Publication

In a judgment rendered on March 21, 2003, Martin v. American International Assurance Life Co.,¹ the Supreme Court of Canada has revisited the interpretation of the term death by "accidental means" in a policy of insurance. The Court held that a number of decisions which had distinguished between policies which provide coverage for "accidental death" and those which restrict coverage to death brought about by "accidental means" were problematic. The Court found that the phrase "accidental means" does not refer to a narrow subclass of the broader category of accidental deaths. Instead, both "accidental death" and death by "accidental means" connote a death that was in some sense unexpected and have essentially the same meaning.

THE CASE

The insured was a physician who developed an addiction to opiate medications. He completed a residential treatment program in 1994 and returned to practice in 1995. Following a painful orthopaedic injury in the spring of 1996, he became physiologically dependent on both morphine and demerol and had to stop work once more. His physician placed him on a program of gradual withdrawal from these drugs. The insured was able to return to work in mid-October of 1996 and the evidence was that he had spoken with his friends in the days preceding his death, sounding enthusiastic and planning for the future.

On October 29, 1996, the insured told his spouse that he was going for a drive to relieve pain in his leg. He drove to his office where he was found dead the following morning. The coroner found that the insured had died from an overdose caused by an intravenous injection of demerol. The level of demerol found in his blood was 2.4 mg, which was at the low end of the range for lethal doses. Toxicology reports indicated that phenobarbital was also found in his blood. Phenobarbital has an additive effect upon demerol. There was no evidence to explain how the phenobarbital entered his system.

THE POLICY

The insured held a policy which described itself as an "Accidental Death Benefit Provision." The clause granting coverage referred to deaths effected through "accidental means" as follows:

Benefit

Subject to this provision's terms, the Company will pay the amount of the Accidental Death Benefit? upon receipt of due proof that the Life Insured's death resulted directly, and independently of all other causes, from bodily injury effected solely through external, violent and accidental means?

THE ARGUMENT

The insurer maintained that the insured's death was not effected through "accidental means." The insurer argued that the insured's self-injection of the particular dosage of demerol was a deliberate act, and that his death was a consequence that he must have foreseen as possible due to the dosage.

The beneficiaries asserted that the insured's death was accidental. They argued that the Court should reject the argument that "accidental means" is narrower than "accidental death" and that in any event it was reasonable to infer that the insured died by "accidental means", mistakenly believing that he was administering a non-lethal dose of demerol.

THE ANALYSIS

Death by "Accidental Means" vs. "Accidental Death"

The Court rejected the insurer's argument that the category of deaths caused by "accidental means" is narrower than accidental deaths, in that "accidental means" excludes accidental deaths that are the natural effects of deliberate actions. Almost all accidents have some deliberate actions among their immediate causes. To agree with the insurer's position, and insist that these actions must also be accidental would result in the insured rarely, if ever, obtaining coverage. As insurance policies must be interpreted in a way that gives effect to the reasonable expectations of the parties, the policy should not be interpreted in such a fashion.

Instead, the Court concluded that the phrase "accidental means" conveyed the idea that the consequences of the actions and events that resulted in death were unexpected. Reference to a set of consequences is implicit in the word "means", which refers to one or more actions or events, seen under the aspect of their causal relation to the events they bring about. To ascertain whether a given means of death is "accidental", consideration must be given to whether the consequences were expected. It is not useful to separate the "means" from the rest of the causal chain and ask whether they were deliberate.

The Court found that the phrase "accidental means" does not refer to a narrow subclass of the broader category of accidental deaths. "Accidental death" and "death by accidental means" connote a death that was in some sense unexpected. The two phrases have essentially the same meaning.

What Constitutes Death by "Accidental Means"?

In determining what constitutes death by "accidental means", the Court accepted that the word "accident" is an ordinary word and should be interpreted "in the ordinary language of the people." The Court focussed on the ordinary person's understanding of the phrase and on whether in ordinary and popular language the event as it happened would be described as an accident. The Court determined that the reasonable expectations of both the insured and insurer were protected by interpreting the phrase using this approach.

The Court started by stating that the accidental nature of a particular means of death depends on the consequences that the insured had or did not have in mind. To speak of an "accidental" means of death normally entails a situation in which someone's action has had results that the person did not intend or expect. The pivotal question is whether the insured expected to die. Factors in this analysis will include the circumstances of the death, namely, what the insured said, or did, or did not do. The Court accepted that to the extent that the answer is unclear when the matter is viewed solely from the perspective of the insured, a court may consider whether a reasonable person in the position of the insured would have expected to die. The Court took the view that this expectation test can be applied generally to all cases in which death appears to be accidental.

The Court then commented on cases involving risktaking of various sorts because it is sometimes urged that these types of cases support a stricter test for whether death was not accidental, such as whether death was reasonably foreseeable, or whether the conduct posed a very high risk of death. The Court noted that in this small but difficult class of cases, trial courts must work out the results as best they can, having regard to the circumstances of death and to the wording of the policy.

One type of difficult case involves people who engage in activities that carry an inordinate risk of death, whether for the psychological gratification in living on the edge, like the player of Russian roulette, or in order to impress others with their bravado, like the young man who deliberately lay along the centre line of the highway with traffic approaching.

The Court confirmed that the question of whether death was expected in cases of evident or high risk must, as in all other cases, be answered from the perspective of the insured. Where the insured's expectations are unclear, a court may consider whether a reasonable person in the position of the insured would have expected to die. The Court stated that "although death is not certain to result from such dangerous activities, it is certainly within the realm of what a reasonable person would expect." The Court accepted that in most cases of this type "[s]uch reckless abandon and exposure to a known, and obvious danger cannot be said to have been accidental, nor can it be said that [the] death was effected by accidental means."

A second type of difficult case involves the rescuer who puts himself in the way of death. The Court held that when the rescue is viewed in the larger context of the events that trigger it, it becomes apparent that the death is unexpected. The rescue is but part of an unexpected chain of events, triggered by the danger of death to another human being. Death is not the result of the rescuer's intentional decision to court death as a response to the danger of another. If the rescuer dies, his death was not designed, intended or expected, rather it was part of a tragic, accidental sequence of events. Because the rescuer's conduct has high redeeming social value, a court could rightly demand less caution in taking on the risk of death than would be demanded of the Russian roulette player. Policy considerations were also cited to support recovery in this type of case.

The Court noted that the approach it adopted did not place an unfair burden of proof on the shoulders of the insurer to show that death was not accidental. The onus is on the plaintiff to establish a prima facie case that the death was accidental. The plaintiff must therefore adduce evidence that permits the trier of fact to infer, on a balance of probabilities, that the insured's death was accidental, within the ordinary meaning of that word. The tactical burden then shifts to the insurer to displace these inferences. The burden of proof never shifts, but remains squarely with the plaintiff.

Importance of the Insurance Contract

Lastly, the Court confirmed that coverage under an accidental death benefit policy depends not only on the circumstances but on what the insurance contract stipulates. It remains open to the insurer, as the party that drafts the insurance contract, to narrow coverage by means of explicit exclusion clauses. If an insurer wishes not to offer coverage for deaths that occur in certain circumstances or, for that matter, for any death that results from a deliberate or voluntary action, then an explicit exclusion clause to this effect can simply be added to the contract. Insurers remain free to limit accidental death coverage in any way they wish, provided they do so clearly, explicitly, and in a manner that does not unfairly leave the insured uncertain or unaware of the extent of the coverage.

THE RESULT

After applying these principles, the Court dismissed the appeal, concluding that the trial judge erred in his appreciation of the law and the facts, and that it was open to the Court to set aside the trial judge's conclusion and to hold that the insured did not expect to die. The most reasonable inference from the known facts is that the insured simply made a miscalculation concerning how much demerol his body could tolerate. As a result, the beneficiaries were entitled to recover under the policy.

1. 2003 SCC 16.

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