The recent district court decision in Degreenia-Harris v. Life Insurance Company of North America, No. 2:19-CV-00218, 2021 WL 1165502 (D. Vt. Mar. 26, 2021) shows us how the presence of drugs in one’s system at the time of death should not necessarily lead to a denial of accidental death benefits.
In Degreenia, the daughter and beneficiary of Denny DeGreenia sued Defendant Life Insurance Company of North America (“LINA”) to recover benefits under a group life insurance policy subject to the Employee Retirement Income Security Act of 1974 (“ERISA”). At the time of Mr. DeGreenia’s death, he was an employee at the Burke Mountain Operating Company ski area. He was covered by the company’s group insurance policy in the event he died due to a “Covered Accident” defined as:
[a] sudden, unforeseeable event that results, directly in a Covered Injury or Covered Loss and meets all of the following conditions:
A “Covered Loss” is defined as:
“[a] loss that is all of the following:
The court noted that Mr. DeGreenia worked at Burke Mountain for over 25 years and knew his snowmaking manager role well. He died while operating a snowcat machine on the Big Dipper ski slope which was snow covered and had a steep upward grade. He was using the snowcat to access a snow gun and repair its hose. He was accompanied by another employee, Clifford Savage, who rode as a passenger. Neither of them was wearing seatbelts when on a significant incline the snowcat began to slide to a stop. In trying to ascend the slope, the snowcat rolled over. Mr. Savage was ejected from the vehicle and not injured but Mr. DeGreenia died at the scene due to rib fractures and visceral lacerations due to blunt force trauma of the torso.
Vermont State Police (“VSP”) inspected the scene and found a small bag of substance believed to be marijuana in Mr. DeGreenia’s pants. The substance was not tested. Nothing in the VSP Report indicated suicide as a possibility. Mr. DeGreenia’s wife recalled Mr. DeGreenia telling her that the snowcat had traction issues.
The Chief Medical Examiner of the Vermont Department of Health (“OCME”) conducted an autopsy on Mr. DeGreenia issued a Final Report of Autopsy determining that the manner of death was an “accident.” The Autopsy Report noted a “Final Pathological Diagnosis” of “I. Blunt Force Trauma of Torso … II. Blunt Force Trauma of Right Arm … III. Abuse of Illicit Substances (see Toxicology).” The Toxicology Report showed that Mr. DeGreenia had cocaine and its metabolites, cannabinoids, and THC in his system.
LINA retained toxicologist Frederick W. Fochtman, PhD, to evaluate Mr. DeGreenia’s condition at the time of the incident. Dr. Fochtman opined that the amounts of cocaine and THC would indicate that Mr. DeGreenia had recently used the drugs but the quantity of cocaine would not be considered toxic, likely from a moderate to low dose. However, the quantity of THC is within the range of causing impairment. He further opined that it is unlikely the use of cocaine would have impaired Mr. DeGreenia’s driving abilities, especially if he was an occasional or regular user of cocaine, but the use of marijuana would explain any lack of judgment that led to the accident resulting in his death. The cocaine would have decreased any sedation caused by THC but not decrease the THC’s impairing effect.
LINA denied accidental death benefits on the basis that Mr. DeGreenia’s death was foreseeable and not a Covered Accident. It explained that “Mr. DeGreenia purposefully embraced the dangerous nature and potential consequences of his actions. Serious injury or death are foreseeable outcomes of driving while under the influence of drugs. Therefore, it is our assertion that his voluntary conduct constituted the significant assumption of an undue risk…. LINA has determined that a reasonable person [of] similar age, background, and age-based experience would have understood that serious injury or death would be highly likely to occur while operating a motor vehicle while under the influence of cocaine and marijuana. Based on the above reasoning, we have determined that Mr. DeGreenia’s snow utility machine rollover was a foreseeable outcome of his voluntary actions. As a result, it does not meet the definition of Covered Accident.”
As part of Plaintiff’s appeal to LINA, she submitted evidence showing that Mr. DeGreenia was a veteran snow making operator who had done his job for many years without a previous serious accident and that he was a longtime daily pot smoker which never impacted his ability to safely operate the snow-making equipment. She also submitted statements from people who saw Mr. DeGreenia the day of his death and who claimed that he did not appear to be high or use on that day.
LINA retained a second toxicology expert, Jerrold Leikin, MD, who determined that the cocaine values along with the metabolite indicate cocaine use within hours of the death and that the cocaine would be expected to impair judgment along with incoordination and visual perceptual abnormalities. Additionally, the level of THC in his system put him at increased risk for being involved in an accident. LINA upheld its decision to deny benefits due to Mr. DeGreenia’s impairment caused by cocaine and marijuana. It found that a reasonable person with background and characteristics similar to Mr. DeGreenia would have viewed the resulting death as highly likely to occur.
In litigation, the district court permitted Plaintiff to supplement the record with the Vermont Occupational Safety and Health Administration (“VOSHA”) records. The VOSHA investigator concluded that the employer’s violations of safety protocols contributed to the vehicle rollover. VOSHA cited the employer for various violations and concluded that the incident could and should have been avoided had the employer acted prior to the incident.
LINA moved for summary judgment. The district court previously determined that the de novo standard of review applies. DeGreenia-Harris v. Life Ins. Co. of North America, 2020 WL 6281573, at *2-3 (D. Vt. Oct. 27, 2020). The court explained that summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Construing the ERISA plan according to federal common law, the issue is whether the deceased had a subjective expectation of survival, and whether such expectation was objectively reasonable, which it is if death is not substantially likely to result from the insured’s conduct. Critchlow v. First UNUM Life Ins. Co. of Am., 378 F.3d 246, 263 (2d Cir. 2004).
The court considered LINA’s argument that Mr. DeGreenia’s expectation of survival was not objectively reasonable considering he was impaired while operating heavy machinery on an ice- and snow- covered slope. Any reasonable person would have been very concerned about death or serious injury in these circumstances. On the other hand, several investigators identified Mr. DeGreenia’s death as an accident and the VOSHA investigator concluded that the accident should have been avoided if the employer had taken proper action. Additionally, there is support for Mr. DeGreenia’s subjective expectation of survival based on his operation of the snowcat on a non-expert trail, that he intended to replace hoses on the trail, and he wore a helmet while operating the snowcat. He also had a long history of traversing steep ice- and snow-covered ski trails. Eyewitness evidence support the claim that he was not impaired, and he was a habitual marijuana user.
The court noted that most “courts reject a per se rule that renders a death non-accidental if the decedent consumed drugs or alcohol prior to the incident, unless there is also a significant degree of reckless or intentional behavior.” Here, LINA’s toxicologists do not address the absence of evidence that Mr. DeGreenia was operating the snowcat in an unusual or reckless manner. While courts generally uphold administrators’ decisions that deaths are not accidental when the decedent is under the influence of drugs or alcohol, that outcome is not dictated where there is other evidence of causation. Here, there are contested issues of fact regarding what caused the snowcat’s rollover and the ejection of Mr. DeGreenia from the snowcat’s cab. That Mr. Savage survived and did not observe any reckless operation or impairment on Mr. DeGreenia’s part must be considered. Because there are genuine issues of disputed material fact and the parties have not consented to have them resolved on summary judgment, the court denied LINA’s motion.
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