Accidental death policies in Canada have traditionally contained a death benefit provision which falls into one of two categories. First, there are those which insure death caused by an accident, or as some policies are worded, death resulting from accidental means. Second, there are those policies which say that the benefit is payable in the event of an accidental death.
There has been much litigation dealing with the interpretation of these provisions. Many cases have previously concluded that there is a distinction between the two, finding that in the first instance the means of death must be accidental, whereas in the latter instance the result must be an accident. Some courts have referred to this as a means/result distinction. The use of this distinction has led to inconsistent results, causing one American judge to warn that, “The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog.”
On March 21, 2003, there was a significant change in the law. In a 9-0 ruling, the Supreme Court of Canada in the case Martin v. American International Assurance Life Co. concluded that the means/result distinction no longer exists. The effect has been to broaden coverage afforded by accidental death policies.
The law prior to Martin
An early case which highlighted the distinction between accidental means as opposed to accidental result was Columbia Cellulose Co. v. Continental Casualty Co. In that case, Eugene Barrett died of a heart attack following several days of strenuous work while he toured and inspected his company’s U.S. plants. The beneficiary argued that, unbeknownst to Mr. Barrett, he was suffering from fatty deposits in his arteries and that the over exertion of the trip caused a hemorrhage in the tissue of the arteries which led to the formation of a clot, stopping blood flow and causing death. The policy in question insured against “injury caused by an accident… and resulting directly and independently of all other causes.” The court ultimately held that since the death was caused by over-exertion, it was not accidental and there was no coverage. In reaching this decision, the court emphasized the difference between the cause of death (i.e., the means) being accidental, as opposed to the consequence (ie., the result) being accidental. In the B.C. Court of Appeal decision, which was later affirmed by the Supreme Court of Canada, Mr. Justice Sheppard wrote:
The difficulty arises in applying the definition, that is, to determine whether “accident” under a particular policy relates to the cause or to the consequence. Under this policy the event insured against, namely “a bodily injury caused by an accident” consists of three parts: (1) a bodily injury, (2) an accident, and (3) that the accident cause the bodily injury. Under the policy there must be an accident which caused the bodily injury and therefore the accident must be distinct and separate from that bodily injury so as to be the cause thereof. On the literal meaning of the policy the accident must be the cause of the injury: it is not sufficient that the injury, that is the consequence, be an accident.
The means/result distinction appeared to be entrenched when the above passage from Columbia Cellulose was relied upon by the Supreme Court of Canada in Smith v. British Pacific Life Insurance Co. Smith also involved a policy which insured loss of life arising from “injury caused by an accident…”
Daniel Smith suffered a heart attack in 1961. After recovering, he returned to work with instructions from his doctor not to do any heavy lifting and not to climb stairs, except one at a time slowly with a rest between each step. A few months later, Mr. Smith and a friend went on a duck hunting expedition. Their vehicle encountered a snow drift and became stuck. After some shovelling efforts by the friend, Mr. Smith was able to drive the vehicle out of the snow drift. The two then stopped for tea, and upon proceeding, the vehicle became stuck in another drift. While the friend once again shovelled, Mr. Smith tried to help by repeatedly shifting the car into forward and then reverse, during which Mr. Smith moved his body back and forth in unison with the car. While doing this, he suffered another heart attack and died. The court held that the actions of Mr. Smith were deliberate and therefore his death was not caused by an accident and there was no coverage.
A case which added to the confusion about whether the means/result distinction still existed was the 1978 Supreme Court of Canada decision in Mutual Of Omaha Insurance Co v. Stats. This case involved a travel accident insurance policy which provided coverage if the insured sustained accidental bodily injury while riding in an automobile. The insured died when she drove her vehicle into a building. The court found that she was grossly impaired by alcohol at the time. The court did not conduct a means/result analysis and did not refer to its previous decisions in Columbia Celluloseor Smith, but rather focused on whether the insured’s conduct had been negligent or whether she deliberately assumed the risk of dying. The court concluded the death was an accident and there was coverage.
The inconsistency in the law brought about by the means/result distinction is perhaps most evident in those cases in which alcohol was a contributing factor to the insured’s death. For instance, in the Alberta Court of Appeal case Leontowicz v. Seaboard Life Insurance Co., after leaving a party the insured was found dead in the passenger seat of an automobile. She had a blood alcohol level of 0.39%. The policy provided coverage for “bodily injury caused by an accident”. The court agreed that the result was accidental; however the cause of death was from the voluntary consumption of alcohol. In the court’s view, the death was not caused by an accident and there was no coverage. A similar decision was reached by the B.C. Supreme Court in Tamelin v. Pioneer Life Assurance Co. By contrast, two Nova Scotia Court of Appeal decisions involving similar facts and similar policy language held that death caused by the over consumption of alcohol did constitute death caused by an accident.
More recently, the means/result distinction came under further attack in a series of three B.C. Court of Appeal cases. The first of these was Martin, which was then appealed to the Supreme Court of Canada and is discussed in greater detail below. The other two cases were Bertalan Estate v. American Home Assurance Co. and CJA v. American Home Assurance Co. All three cases involved elements of intentional conduct on the part of the insured which ultimately led to their deaths. In Martin, the insured doctor died from an overdose of self-injected demerol. In Bertalan the insured dentist died from the voluntary inhalation of nitrous oxide. In CJA the insured died from asphyxiation due to a plastic bag he put over his head during sexual activities. In all three cases, the policies provided coverage either for death caused by accident or by accidental means. Notwithstanding the intentional conduct of the insureds, in each case the B.C. Court of Appeal found coverage.
The Martin Decision
The Supreme Court of Canada’s decision in Martin has brought an abrupt end to the debate over whether there exists a distinction between policies which cover death by accidental means, and those which cover accidental death. To put it simply, the court concluded that the two phrases mean the same thing. The court has now adopted what it refers to as an “expectation test” to determine if a death is accidental.
The circumstances in Martin were as follows. After the death of Dr. Edward Easingwood, his beneficiary, Dorothy Martin, sought payment of the death benefit under a policy of accidental death insurance. The insurer denied coverage on the basis that Dr. Easingwood’s death did not result directly from accidental means. The death benefit provision in the policy stated:
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 …
Dr. Easingwood was a family doctor who developed an addiction to opiate medication. He initially started taking demerol to treat a peptic ulcer. In 1994, he entered a residential treatment program and later returned to practice in 1995. In the spring of 1996, he suffered an orthopedic injury which caused him to stop work. He started taking both morphine and demerol for pain management and became physiologically dependent on them. His doctor placed him on a program of gradual withdrawal from the drugs, and by mid-October 1996 he returned to work.
On the night of October 29, 1996, Dr. Easingwood told his spouse that he was going for a drive. He went to his office and injected demerol intravenously. The next morning, he was found dead in his office, lying prone, with his broken glasses on the floor, a bloody tissue in one hand, and his pants partially pulled down.
The coroner concluded that Dr. Easingwood died from a lethal injection of demerol. A lethal dose can range from 1 to 8 mg/L, and he had a level of 2.4 mg/L. There was also phenobarbital present in Dr. Easingwood’s blood, which has an additive effect on demerol; however, there was no evidence to explain how the phenobarbital entered his system. The source of the drugs was unknown as Dr. Easingwood’s office had previously been cleared of all mood altering medications. However, the trial judge noted that Dr. Easingwood’s lungs revealed evidence of “junkie’s lung”, a condition resulting from chronic intravenous abuse of drugs purchased on the street.
The trial judge found that Dr. Easingwood’s death was not caused by accidental means, and thus there was no coverage under the accidental death policy. The B.C. Court of Appeal reversed this decision and, adopting what it called a “holistic approach”, concluded that Dr. Easingwood’s death was accidental and thus there was coverage. The insurer appealed the decision to the Supreme Court of Canada.
At the outset of the Supreme Court of Canada’s decision, Chief Justice McLachlin dispensed with the traditional distinction in accidental death policies between “accidental means” and “accidental death”, concluding that the two phrases have the same meaning. In so doing, she rejected the argument that accidental means is a narrower subset of the broader category of accidental deaths. The Chief Justice wrote:
Almost all accidents have some deliberate actions among their immediate causes. To insist that these actions, too, must be accidental would result in the insured rarely, if ever, obtaining coverage. Consequently, this cannot be the meaning of the phrase “accidental means” in the policy…
In my view, the phrase “accidental means” conveys the idea that the consequences of the actions and events that produced death were unexpected. Reference to a set of consequences is therefore implicit in the word “means”. “Means” refers to one or more actions or events, seen under the aspect of their causal relation to the events they bring about.
It follows that to ascertain whether a given means of death is “accidental”, we must consider whether the consequences were expected. We cannot usefully separate off the “means” from the rest of the causal chain and ask whether they were deliberate…
As a result of the court eliminating the distinction between accidental means and accidental death, the new approach to interpreting most accidental death benefit provisions is now to look at the whole chain of events leading to the insured’s death, and consider the question of whether or not the insured expected to die. This is consistent with the approach taken in some U.S. cases, such as Landress v. Phoenix Mutual Life Insurance Co. in which Justice Cardozo wrote that either, “There was an accident throughout, or there was no accident at all.”
As for the meaning of “accident”, while this has previously been the source of much litigation, the court in Martin readily adopted the definition from the court’s earlier decision in Stats in which it held that accident means “an unlooked for mishap or an untoward event which is not expected or designed.”
In determining whether Dr. Easingwood died from accidental means, the pivotal question was whether the insured expected to die. The court described this as the “expectation test”. This test comprises the following:
The first step in all cases is to ask what the insured, in fact, expected. This may become known from the circumstances of the insured’s death, such as what the insured said, did or did not do. If the insured’s actual expectation cannot be determined, only then does one proceed to step two.
The second step is to ask, from the perspective of a reasonable person standing in the shoes of the insured, what the insured expected. The insured’s subjective beliefs, such as whether certain conduct was or was not risky, are therefore taken into account.
The court emphasized that the expectation test is intended to apply to all cases where a person is believed to have died accidentally. Two categories were identified by the court in which, at first blush, it may seem inappropriate to apply the expectation test, but on closer scrutiny, the expectation test is still expected to hold up.
The first category involves those deaths resulting from high risk activities. Simply because a person engages in a high risk activity does not mean the person expects to die. However, at some point the decision to court the risk becomes equivalent to the intention to die. One example of a high risk activity cited by the court in Martin was that of an insured playing Russian roulette. In such a circumstance, from the standpoint of the insured, he or she likely does not intend to die; however, a reasonable person standing in the insured’s shoes likely would expect that death is certainly in the realm of possibility.
The expectation test is also intended to apply in the case of rescuers. The example cited by the court was that of a rescuer diving into the ocean to save another person, knowing that there are strong currents which pose great risk. Looked at in isolation, the rescuer in this instance has intentionally put him or herself in harm’s way. However, viewed in a larger context, the rescue effort is part of a chain of accidental events. Further, the court noted that because the role of a rescuer has high socially redeeming value, it is acceptable to demand less caution from the rescuer when he or she considers the question of whether death is expected from his or her actions.
Lessons to be learned from Martin
Clear policy language is essential
The Supreme Court of Canada concluded that the phrase “death by accidental means” and “accidental death” have the same meaning. In reaching this conclusion, the court focused on the reasonable expectations of the parties. The court was of the view that the ordinary insured would not see a distinction between the two phrases. Further, the court felt it was not clear that most insurers would expect there to be a distinction. However, even in the case of those insurers who did expect “accidental means” to have a more narrow meaning than “accidental death”, the court held that it was necessary to strike a balance between the interests of the insured and insurer, and in this instance, the interests of the insured prevailed. On this point, Chief Justice McLachlin wrote:
Any adequate interpretation of “accidental means” must attempt to strike a balance between these two sets of expectations, and the two sets of interests that underlie them. Insurers cannot reasonably expect the court to adopt an interpretation that gives more protection to their interests than to those of the insured.
The court’s emphasis on the insured’s expectation should not be surprising, particularly given that the key phrase, accidental means, is found within the insuring provision. As with all policies of insurance, insuring provisions are to be interpreted broadly and exclusions are to be interpreted narrowly.
The Supreme Court of Canada has not shut the door on accidental death policies excluding coverage for death that has been caused by the intentional conduct of the insured. What the court has done is emphasize that clear policy language will be required in order for an insurer to achieve this result. For instance, in the Martin case, had the policy contained a term which excluded coverage for death caused by or resulting from the consumption or injection of drugs, Dr. Easingwood’s death may have fallen within such an exclusion and there may not have been coverage.
Regarding the need for clear policy language, the Chief Justice wrote:
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.
Applying the Martin expectation test in future cases
While Martin has eliminated the debate over the means/result distinction, the case raises new questions as to how the expectation test will be applied in future. As noted by the court, the biggest challenge in applying the expectation test will likely come from those cases involving high risk activities. The difficulty is that no clear line has been drawn to determine precisely when “courting the risk” will move a death out of the category of being accidental, and into the category of being expected, and thus non-accidental.
The new expectation test also casts doubt on whether the outcomes of certain previous court decisions will be followed in future. Consider the following situations:
a) A person went for a walk wearing shoes which rubbed, causing a blister. The blister became infected and the infection ultimately caused death. In this prior case, the court held that the insured intended to walk, and thus the death was not caused by accidental means. In the post-Martin era, a court may determine that going for a walk and developing a blister is not expected to cause death, and therefore the death may be an accident.
b) A person drinks excessive amounts of alcohol to the point that respiration stops and the person dies. Some courts have previously found that death from drinking does not constitute accidental means, and thus no coverage was found. However, in the absence of other indicators to suggest that suicide was intended, the expectation test renders it much more likely that a court will find that death from the voluntary consumption of alcohol is accidental.
c) A person with a known heart condition over exerts himself and dies suddenly. The Supreme Court of Canada previously held there was no accident in this situation. While this result is consistent with the principle that death caused by disease is not an accident, the possibility remains that in choosing to exert himself, the insured likely did not expect to die. Applying the expectation test, it is open to a court to find that the death was an accident.
