LeTran Tran v. Minnesota Life Insurance Company

Linno Llenos died engaging in an act known as autoerotic asphyxiation.

His widow and beneficiary, LeTran Tran, filed a claim with

Minnesota Life Insurance Company, seeking the proceeds from Llenos’s

ERISA-governed life insurance policies. Minnesota Life paid

most of her claims but denied coverage under Llenos’s Accidental

Death & Dismemberment policy riders. Minnesota Life



2 No. 18-1723



determined Llenos’s death was not accidental and fell under

a policy exclusion for deaths resulting from “intentionally

self-inflicted injury.” The district court reversed, ruling that

Llenos’s death qualified as an accidental death and did not

result from an intentionally self-inflicted injury.

Because a reasonable person would interpret Llenos’s

cause of death, autoerotic asphyxiation, to be an “intentionally

self-inflicted injury,” we reverse.



I. Background



The facts are not in dispute. In August 2016, while home

alone in Wilmette, Illinois, Llenos hung a noose from a ceiling

beam in his basement, stood up on a stool with the noose

around his neck, and stepped off. Llenos died as a result.



When Tran came home, she found her husband’s body hanging

in the basement and immediately called police. Though

his death was initially reported a suicide, the medical examiner

subsequently concluded from sexual paraphernalia on

Llenos’s body that he died performing autoerotic asphyxiation.



Autoerotic asphyxiation is a sexual practice by which a

person purposefully restricts blood flow to the brain to induce

a feeling of euphoria. “Asphyxiophilia” as defined in the

DSM-5 is a subset of sexual masochism disorder, by which an

“individual engages in the practice of achieving sexual

arousal related to restriction of breathing.” AMERICAN

PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS 694 (5th ed. 2013). The pleasurable

feeling experienced during autoerotic asphyxiation derives

from cerebral hypoxia, or brain cell death from

deprivation of oxygen. Acute to severe hypoxia can lead to



No. 18-1723 3



loss of consciousness in ten to twenty seconds, permanent

brain damage in three minutes, and death in four to five

minutes.



Llenos was covered by two life insurance policies, a Basic

Insurance Policy and a Supplemental Insurance Policy. These

provided $517,000 in coverage. Each policy also included

Accidental Death & Dismemberment (“AD&D”) policy riders.



The Basic Insurance Policy provided an additional

$10,000 of AD&D coverage, and the Supplemental Insurance

Policy provided an additional $50,000 of AD&D coverage.



After her husband’s death, Tran filed a claim with Minnesota

Life, which paid the $517,000 but denied Tran’s claim for

the additional $60,000 in AD&D coverage based on two provisions

(with identical text) in the policy riders. Minnesota

Life concluded Llenos’s death was not “accidental” under the

AD&D riders. The insurer also took the position that Llenos’s

death fell under an exclusion for intentionally self-inflicted

injury, which states:



In no event will we pay the accidental death or

dismemberment benefit where an insured’s

death or dismemberment results from or is

caused directly by any of the following: … intentionally

self-inflicted injury or any attempt at

self-inflicted injury, whether sane or insane…”

(emphasis added). Tran appealed the decision internally at

Minnesota Life and again was denied.



Tran then brought an action under the Employee Retirement

Income Security Act (“ERISA”), 29 U.S.C.

§ 1132(a)(1)(B), seeking the AD&D coverage payouts. After

reviewing the stipulated facts from both parties, the district



4 No. 18-1723



court awarded judgment in favor of Tran under FED. R. CIV.

P. 52(a). The court ruled that Minnesota Life had conceded the

death was accidental, and the only issue in dispute was

whether autoerotic asphyxiation qualified as an “injury”

under the policy’s language. After reviewing precedent on

autoerotic asphyxiation from other circuits, the court determined

that reasonable minds could disagree about whether

Llenos’s intentional inducement of cerebral hypoxia was a

self-inflicted injury within the meaning of the AD&D rider

language. Because all policy ambiguities must be construed

in favor of coverage, the district court ruled that the exclusion

for intentional injuries did not apply to autoerotic asphyxiation

and entered judgment in favor of Tran. Minnesota Life

filed this appeal.



II. Discussion



Challenges to ERISA benefit determinations under

29 U.S.C. § 1132(a)(1)(B) are reviewed de novo when, like

here, the plan does not grant discretionary authority to the

plan fiduciary. Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989); Cheney v. Standard Ins. Co., 831 F.3d 445, 449

(7th Cir. 2016). We apply federal common law to interpret policy

terms. Schultz v. Aviall, Inc. Long Term Disability Plan,

670 F.3d 834, 838 (7th Cir. 2012). The federal common law of

insurance contracts requires “that Plan terms be interpreted

in an ‘ordinary and popular sense, as [they] would [be understood

by] a person of average intelligence and experience.’”

Sellers v. Zurich American Ins. Co., 627 F.3d 627, 632 (7th Cir.

2010) (quoting Cannon v. Wittek Cos. Intern., 60 F.3d 1282, 1284

(7th Cir. 1995)). Where terms are ambiguous, courts construe

them in favor of coverage. Santaella v. Metropolitan Life Ins. Co.,

123 F.3d 456, 461 (7th Cir. 1997).



No. 18-1723 5



Minnesota Life first challenges the district court’s finding

that the insurer waived its position that Llenos’s death was

not “accidental” under the language of the AD&D riders. But

because the riders stipulate an accidental death is still

excluded if it “result[ed] from or was caused directly by … intentionally

self-inflicted injury,” and that is dispositive of this

case, we address only the exclusions. To determine whether

Llenos’s death is excluded from AD&D coverage, we must

determine first whether autoerotic asphyxiation is an

“injury,” and second, whether that injury was “intentionally

self-inflicted.”



A. Autoerotic Asphyxiation As “Injury”



We interpret the meaning of “injury” as a layperson

would commonly understand the word. Sellers, 627 F.3d at

632. The district court’s analysis of whether autoerotic

asphyxiation (and the accompanying cerebral hypoxia) is an

injury relied on three cases: a 1997 case from our court,

Santaella v. Metropolitan Life Ins. Co.; Padfield v. AIG Life Ins. Co.,

290 F.3d 1121 (9th Cir. 2002); and Critchlow v. First Unum Life

Ins., America, 378 F.3d 246 (2nd Cir. 2004). In Santaella, we held

that an accidental overdose death did not result from intentionally

self-inflicted injury because there was no evidence the

woman intended to injure herself when she took too much of

a legal prescription painkiller. 123 F.3d at 465. Here, the district

court applied Santaella to the question of injury because

it was “cited approvingly by the Ninth Circuit in Padfield … .”

Tran v. Minnesota Life Ins. Co., No. 17-cv-450, 2018 WL

1156326, at *7 (N.D. Ill. Mar. 5, 2018).



But Padfield did not rely on Santaella for its determination

that autoerotic asphyxiation is not an injury. Padfield cited

Santaella in support only of its “intentionally self-inflicted”



6 No. 18-1723



analysis. 290 F.3d at 1129–30. Indeed, Santaella sheds little

light on the question of whether autoerotic asphyxiation is an

injury, because the opinion did not explore the issue in any

depth. In Santaella, we simply stated the facts did not show

that the insured meant to injure herself. 123 F.3d at 465. The

dose the insured ingested was relatively low to be fatal, and

she was unaware of other medical conditions that made her

particularly susceptible to an overdose. Id. There was no evidence

“she was aware of the risk of serious injury or death”

when she ingested the painkiller. Id. The entire discussion of

injury amounted to only two paragraphs and was largely

dependent on the case’s facts. For these reasons, we do not

find Santaella instructive on whether autoerotic asphyxiation

is an injury.1



We turn next to the other two cases the district court relied

on, Padfield and Critchlow. Both dealt with deaths by autoerotic

asphyxiation, and both addressed policy exclusions for

intentionally self-inflicted injury. This court has never

adopted the reasoning used in Padfield and Critchlow, and we

decline to do so here.2 We find both cases grounded on a false



1 While Santaella does not speak much to injury, we agree with the

dissent that its subjective/objective framework applies to whether an act

was intentional or accidental, discussed further in Part II.B.

2 Our research did not yield any other circuit courts adopting the holdings

in Padfield or Critchlow. Some federal district courts have rejected

Padfield and Critchlow and found that autoerotic asphyxiation is an intentionally

self-inflicted injury under a de novo standard. See, e.g., Bryant v.

AIG Life Ins. Co., 2002 WL 34504617, at *5 (W.D. Mich. Nov. 27, 2002)

(“Upon de novo review, and notwithstanding the Ninth Circuit’s opinion

to the contrary, this Court joins the overwhelming majority of federal

courts in concluding that the partial strangulation involved in autoerotic



No. 18-1723 7



premise: that the act of strangling oneself is severable into distinct

phases and distinct injuries. In Padfield, for example, the

Ninth Circuit reasoned that what killed the insured was not

the autoerotic asphyxiation, but the continued asphyxiation

that occurred after he blacked out. Padfield, 290 F.3d at 1129.



The same reasoning was applied in Critchlow, in which the

Second Circuit found that Critchlow’s death “was not caused

by ‘partial’ strangulation but by the total loss of oxygen for a

sustained period.” 378 F.3d at 260.



We reject such reasoning because it artificially separates

one continuous act into two or more parts. The insured in

Padfield did not strangle himself in a nonlethal manner, then

involuntarily shift into a different form of lethal strangulation.

He pulled a necktie tightly around his neck to cut off oxygen

to his brain; as the self-strangulation continued, he gradually

lost consciousness and eventually died. Padfield, 290 F.3d at

asphyxiation comes within the plain meaning of ‘intentionally selfinflicted

injury.’”). At least one state supreme court also has concluded

autoerotic asphyxiation is an intentionally self-inflicted injury. MAMSI

Life & Health Ins. Co. v. Callaway, 825 A.2d 995, 1007 (Md. 2003) (“We conclude

that a layperson would understand partial strangulation to be an

injury as that term is commonly used.”); see also Book v. Monumental Life

Ins. Co., 723 N.W.2d 208 (Mich. Ct. App. 2006) (following Callaway).

We have located only about 20 autoerotic asphyxiation cases in federal

court, and many are decided under the abuse of discretion standard, not

de novo as here. In 2009, the Fifth Circuit in a per curiam decision affirmed

the district court’s decision that autoerotic asphyxiation is an intentionally

self-inflicted injury, Estate of Thompson v. Sun Life Assur. Co. of Canada, 354

F. App'x 183, 186 (5th Cir. 2009), but that was under the abuse of discretion

standard.



8 No. 18-1723



1123–24. The insured in Critchlow died under very similar circumstances.

Critchlow, 378 F.3d at 250. For both men, there

was no intervening cause, and no break in the chain of causation:

one act of autoerotic asphyxiation caused the hypoxia

that killed them. The same reasoning applies here: Llenos

placed a noose around his neck and stepped off a stool, strangling

himself. The resulting hypoxia caused his euphoria, his

black out, and his death—all the result of one intentionally

inflicted injury.



Even if we accept the Ninth Circuit’s premise that Llenos’s

autoerotic asphyxiation injury could be viewed in different

“stages” of strangulation, the partial strangulation he sought

to inflict is still an “injury” as the term is commonly understood,

and thus falls within the exclusion. See, e.g., MAMSI Life

& Health Ins. Co. v. Callaway, 825 A.2d 995, 1007 (Md. 2003)

(“We conclude that a layperson would understand partial

strangulation to be an injury as that term is commonly

used.”). The Ninth Circuit disagreed, holding that no “persons

of average intelligence and experience” would consider

partial strangulation to be an injury. Padfield, 290 F.3d at 1129.



To the contrary, we find that an ordinary person would consider

choking oneself by hanging from a noose to be an injury,

even if that strangulation is only “partial.” For example, if

Llenos had partially strangled another person, there would be

no debate he had inflicted an injury. The criminal codes

within our circuit confirm this: in Wisconsin, Indiana, and

Illinois, partial strangulation not resulting in death is a prosecutable

offense. See, e.g., WIS. STAT. § 940.235 (2007), (“Strangulation

and Suffocation”); IND. CODE § 35-42-2-9 (2017)

(“Strangulation”); People v. James, 2017 IL 160148-U, ¶ 21

(affirming a finding of “great bodily harm” when the strangulation

victim survived, but during strangulation “could not



No. 18-1723 9



breathe, lost consciousness, and suffered bruising to the

neck.”). Partial strangulation, even when not intended to

cause death, is an injury. See, e.g., Critchlow, 378 F.3d at 265

(Van Graafeiland, J., dissenting) (“Partial strangulation is an

injury. A suicidal motive is not required.”).

The dissent asserts we have ignored the sexual nature and

pleasurable aim of autoerotic asphyxiation. Even acknowledging

both, we fail to see their relevance. That Llenos

performed the act on himself and enjoyed the accompanying

euphoria does not make partial strangulation less of an injury.



Compare this with someone who engages in nonsuicidal selfinjury,

such as by cutting or burning himself. See AMERICAN

PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS 803 (5th ed. 2013) (DSM-5)

(defining “Nonsuicidal Self-Injury” as when an individual

has “engaged in intentional self-inflicted damage to the surface

of his or her body of a sort likely to induce bleeding,

bruising, or pain … with the expectation that the injury will

lead to only minor or moderate physical harm (i.e., there is no

suicidal intent).”). The individual has still suffered an injury,

regardless of the desired side effects. Autoerotic asphyxiation

is no different. See Callaway, 825 A.2d at 1007 (Md. 2003)

(“That the injured party also derived pleasure from the selfinflicted

injury [of autoerotic asphyxiation] does not mean

there was no injury.”).



Nor do we find relevant the popularity of autoerotic

asphyxiation. The dissent contends no one would practice

autoerotic asphyxiation if it were commonly understood to be

an injury. This ignores scientific and psychological evidence

to the contrary, including the DSM-5 which has an entire section

that deals exclusively with sexual masochism disorder,



10 No. 18-1723



defined as “sexual arousal from the act of being humiliated,

beaten, bound, or otherwise made to suffer …” DSM-5 at 694 (emphasis

added). The same section defines autoerotic asphyxiation

as a subset of sexual masochism disorder. Some people

enjoy harming themselves. That harm is still an injury,

regardless of its popularity or the pleasure some people may

derive from it.



We also disagree with the Second Circuit’s determination

in Critchlow that oxygen deprivation, not partial strangulation,

was the injury that killed the insured. See Critchlow, 378

F.3d at 260 (“Critchlow’s death was not caused by ‘partial’

strangulation but by the total loss of oxygen for a sustained

period.”). Again, this improperly parses the causal chain of

events: strangulation (the “injury”) causes hypoxia, which

leads to euphoria, then blackout, and eventually death. The

Second Circuit’s decision in Critchlow obscures the actual

cause of death in autoerotic asphyxiation fatalities. For

Llenos, as for the insured in Critchlow, there was no intervening

cause or break in the chain of causation: absent the strangulation

injury, Llenos never would have experienced

hypoxia (and euphoria), lost consciousness, and died. Autoerotic

asphyxiation was the ultimate and the proximate cause

of Llenos’s death. According to the language of the exclusion

in the AD&D riders, then, the act of autoerotic asphyxiation

was the “injury” that killed Llenos.



B. “Intentionally Self-Inflicted”



Having determined autoerotic asphyxiation is an injury,

the remainder of our inquiry is straightforward. We decide

whether an act was accidentally or intentionally done—as required

by the “intentionally self-inflicted” exclusion in the

AD&D riders—by applying the subjective/objective test we



No. 18-1723 11



adopted in Santaella. 123 F.3d at 462–63. For an injury, we

examine whether the injured individual had a subjective

expectation of injuring himself, and if that cannot be determined,

whether an expectation of injury was objectively

reasonable.3 Id. Here, we need not reach the objective step in

the analysis, because Llenos’s subjective intent was clear.4

Llenos intentionally performed autoerotic asphyxiation. Because

that act itself is an injury, Llenos’s death falls under the

policy exclusion for intentionally self-inflicted injuries.

This holding does not conflict with our holding in

Santaella, as the dissent and the Ninth Circuit suggests. See

Padfield, 290 F.3d at 1130 (“This case is analytically identical to

Santaella.”). In Santaella, we concluded there was no record evidence

to indicate the insured had intended to injure herself

by taking the prescription painkiller. Santaella, 123 F.3d at 465;



3 The Second and Ninth Circuits have likewise applied the subjective/

objective test to “intentionally self-inflicted injury.” See Critchlow, 378

F.3d at 259; Padfield, 290 F.3d at 1129. But Critchlow took the analysis a step

further and decided that no intentionally self-inflicted injury is present

where there was an objectively reasonable expectation of survival.

Critchlow, 378 F.3d at 259 (“As to Critchlow’s subjective intent, it has never

been disputed that his death was subjectively unexpected and unintended.”)

(emphasis added). This conflates the injury analysis with the accidental

death analysis; no suicidal intent is required for a finding of intentionally

self-inflicted injury. In this regard, we do not follow Critchlow.



4 The dissent’s discussion and reliance on the objective prong of Santaella

raises an interesting question. The dissent discusses the various

prophylactic measures Llenos took to avoid injury, such as a protective

towel around the neck to avoid abrasion. Why, if the person did not think

injury was a substantial certainty, would he use prophylactic measures

during the act to mitigate injury?



12 No. 18-1723



see also Padfield, 290 F.3d at 1131 (Leavy, J., dissenting) (distinguishing

the overdose in Santaella from autoerotic asphyxiation).

That differs from here: Llenos intentionally strangled

himself so he could experience hypoxia-induced euphoria.

That strangulation itself, partial or otherwise, was an injury

that he intentionally inflicted on himself, unlike the insured

in Santaella.



Strangling oneself to cut off oxygen to one’s brain is an injury,

full stop. When that injury kills, it is “an intentionally

self-inflicted injury which resulted in death,” regardless of

whether it was done recreationally or with an intent to survive.

Padfield, 290 F.3d at 1131 (Leavy, J., dissenting); Callaway,

825 A.2d at 1007. Under the plain and ordinary meaning of

Llenos’s AD&D riders, his death is excluded from coverage.5



III.



This opinion does not purport to establish a per se rule on

insurance coverage for autoerotic asphyxiation. Interpretations

of insurance policies are rarely amenable to per se rules

because the policy language and factual circumstances involved

in a death can vary, sometimes greatly. See, e.g., Todd

v. AIG Life Ins. Co., 47 F.3d 1448, 1453 (5th Cir. 1995) (declining

to establish a per se rule on whether autoerotic asphyxiation

deaths are accidental); Cozzie v. Metropolitan Life Ins. Co., 140

F.3d 1104, 1110 (7th Cir. 1998) (declining to establish a per se



5 This opinion has been circulated under Circuit Rule 40(e) among all

judges of this court in regular active service. A majority did not favor rehearing

the case en banc on the question of creating a conflict with the

Second Circuit in Critchlow and the Ninth Circuit in Padfield. Chief Judge

Wood and Circuit Judges Rovner and Hamilton voted to grant rehearing

en banc.



No. 18-1723 13



rule on whether drunk driving deaths are accidental). But

under the language of this policy’s exclusion for AD&D coverage,

Llenos died from an “intentionally self-inflicted injury.”

Even assuming Llenos’s death were accidental, Tran is

not entitled to AD&D coverage and an additional $60,000

payment.



For these reasons, we REVERSE the judgment.



14 No. 18-1723



BAUER, Circuit Judge, dissenting. I would affirm the

decision of the district court. The district court found that

reasonable people could conclude that Linno Llenos’

(“Llenos”) cerebral hypoxia was not an intentional injury

under the terms of Minnesota Life Insurance Company’s

Accidental Death & Dismemberment policy riders (“Rider”)

and his death was an unexpected and unforeseen accident.

Because reasonable people could conclude that his death was

an accident, and ambiguities in the plan must be construed in

favor of coverage, I believe that the district court properly

determined that Llenos’ death is covered by the Rider.

As the majority notes, the facts surrounding Llenos’ death

are not in dispute. During an act of manual-stimulation, Llenos

engaged in self-strangulation. He hung himself by the neck

and was unable to free himself before succumbing to cerebral

hypoxia and ultimately death.



The district court’s determination of whether the Rider’s

terms are ambiguous is subject to de novo review and construed

in favor of the insured. Cheney v. Standard Ins. Co., 831 F.3d 445,

450 (7th Cir. 2016). Findings of fact “must not be set aside

unless clearly erroneous[.]” Fed. R. Civ. P. 52(a)(6). “‘[A]

finding is clearly erroneous when although there is evidence to

support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been

committed.’” Madden v. United States Dep’t of Veterans Affairs,

873 F.3d 971, 973 (7th Cir. 2017) (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948)).



The majority focuses its analysis on two prongs: whether

autoerotic asphyxiation is an injury and, if so, whether the

injury was intentionally self-inflicted. It concludes that because

Llenos intentionally engaged in the sexual act which led to his



No. 18-1723 15



death, even though his death was an accident, he is not entitled

to coverage under the Rider. This analysis separates the

manual-stimulation from the self-strangulation and erroneously

concludes that autoerotic asphyxiation is an injury.



The majority cleaves the act into two separate actions:

(1) the act of masturbation, and (2) the act of self-strangulation.

This confuses the analysis; it erroneously divides one global

process into two distinct acts and the majority focuses solely on

the strangulation aspect while ignoring the contemporaneous

masturbatory act. So, the question should be: could reasonably

intelligent people conclude autoerotic asphyxiation is not

intentionally injurious behavior? I believe they can.



When examining whether or not autoerotic asphyxiation is

an injury, our analysis in Santaella and our sister circuits’

perspective on the question is illuminating. Santaella v. Metro.

Life Ins. Co., 123 F.3d 456 (7th Cir. 1997).

In Santaella, this Court adopted the Fifth Circuit’s methodology

for analyzing whether a death under an accidental death

policy was accidental: the court must determine “(1) that the

deceased had a subjective expectation of survival, and (2) that

such expectation was objectively reasonable which it is if death

is not substantially certain to result from the insured’s conduct.”

Santaella, 123 F.3d at 463 (quoting Todd v. AIG Life Ins.

Co., 47 F.3d 1448, 1456 (5th Cir. 1995)). The same analysis

should be imported to the question of whether or not the act at

bar—autoerotic asphyxiation—is injurious; that is to say, did

the practitioner reasonably expect not to injure himself and

was that expectation objectively reasonable.



In Santaella, like here, there was no factual dispute. The

decedent intentionally took a mild prescription pain killer and

suffered an overdose. The medical examiner ruled out natural



16 No. 18-1723



causes, suicide, homicide, and unknown causes and concluded

that the decedent’s death was the result of an overdose from

propoxyphene at a level less than one-third the typically lethal

blood level. This Court concluded that because the decedent

had subjective expectation of survival and the objectively

reasonably person would not think death a substantial certainty,

the death was an accident.



Here, there is evidence that Llenos intended to weather the

masturbatory episode unscathed. During the course of the

investigation, Llenos’ wife informed police that he was not

suicidal, that the family’s finances were secure, and she did not

think he committed suicide. The report further states that there

were prophylactic measures in place to mitigate the risk of

injury during the act, specifically, a towel wrapped around his

neck, his foot resting on a step stool, and a possible release

mechanism. Lastly, the coroner found rubber rings around

Llenos’ genitals and noted that his “pubic hair was shaved in

a semi-circular pattern consistent with prior use[.]” The record,

limited thought it may be, indicated Llenos had a history of

engaging in autoerotic asphyxiation and doing so without

injury, leading one to the belief that the act, as it was intended

to be performed, was not injurious.



Because the first prong of the analysis is satisfied, we

should look to whether such expectation was objectively

reasonable—that is to say injury was not substantially certain.

For injury to be the substantially certain result of autoerotic

asphyxiation, the objectively reasonable person would have to

expect that the injury was the likely outcome from the act. See

Santaella, 123 F.3d at 462 (quoting Wickman v. Nw. Nat. Ins. Co.,

908 F.2d 1077, 1088 (1st Cir. 1990)); see also Med. Protective Co.

of Fort Wayne, Indiana v. Am. Int’l Specialty Lines Ins. Co., 911

F.3d 438, 449 (7th Cir. 2018), reh’g denied (Jan. 29, 2019) (briefly



No. 18-1723 17



discussing substantial certainty in the known loss context as

“virtually inevitable”). This objective prong was also discussed

by our sister circuits.1



In Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1127 (9th Cir.

2002), and Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d

246, 258 (2d Cir. 2004), the Ninth and Second Circuits acknowledged

that asphyxiophilia and autoerotic asphyxiation are

widely practiced sexual acts. If it were objectively reasonable

to conclude that an injury, as commonly understood, was the

likely result of autoerotic asphyxiation there would be few if

any repeat practitioners. Moreover, autoerotic asphyxiation has

permeated popular culture and has become a commonplace

punchline. Accordingly, I believe the objective prong of the

analysis is satisfied.



Because Llenos had a subjective expectation of escaping

unscathed and the objectively reasonable person would not

think an injury was a substantial certainty, his death should

not be deemed the result of an intentional injury. Therefore, the

Rider’s exclusion would not apply.



The majority’s position incorrectly separates the masturbation

from the asphyxiation and as a result creates a rule where

it will always be excluded from coverage under an accidental

death & dismemberment policy that includes an intentional

injury exclusion. Llenos’ conduct was undoubtedly risky but

was not inherently injurious. The determination that autoerotic

asphyxiation is an injury ignores that fact that when done



1 Like the majority, I decline to adopt the analysis in either Padfield or

Critchlow because they unnecessarily parse one continuous event into

distinct phases.



18 No. 18-1723



correctly it can and does have a recreational purpose with no

lasting health consequences.



By contrast, in the case of the skydiver or bungee jumper

whose equipment malfunctions, the injury is the sudden stop

when the thrill seeker crashes back to earth, but the act—the

jump—was an intentional one. But, the subjective and objective

intent was to survive. Like the thrill seeker or extreme athlete

who steps out of an airplane or purposefully exposes himself

to outrageous conditions, the asphyxiophiliant is not necessarily

acting injuriously.



The majority focuses its inquiry on the injury aspect of

Llenos’ self-strangulation incorrectly concluding that any

amount of asphyxiation is injurious and therefore autoerotic

asphyxiation must be excluded under the Rider. But, as the

district court points out, “reasonable minds could differ on

whether the term ‘injury’ as used in the [Rider] includes

Llenos’ induction of cerebral hypoxia under the facts of this

case.”



Because reasonable minds can differ about whether or not

autoerotic asphyxiation would be an intentionally inflicted

injury, it creates an ambiguity in coverage, and ambiguities

must be resolved in favor of coverage. Minnesota Life is in the

best position to remedy this ambiguity by expressly excluding

coverage for such inherently dangerous activities, as other

insurance providers have done. See Johnson v. Am. United Life

Ins. Co., 716 F.3d 813, 817 (4th Cir. 2013) (noting a policy

exclusion for “hang-gliding, bungee jumping, automobile

racing, motorcycle racing, skydiving, rock climbing, or

mountain climbing.”); Kovach v. Zurich Am. Ins. Co., 587 F.3d

323, 336 (6th Cir. 2009) (noting policy exclusions for



No. 18-1723 19



“skydiving, parasailing, hangglinding [sic], bungee-jumping,

or any similar activity.”).



In conclusion, I would affirm the decision of the district

court. The district court properly concluded that cerebral

hypoxia was not an intentional injury and Llenos’ death was

an unforeseen accident. Autoerotic asphyxiation is an inherently

dangerous sexual practice. The matter at hand shows that

even seasoned practitioners can succumb to cerebral hypoxia

and die. Therefore, I respectfully DISSENT.

For these reasons, we REVERSE the judgment.