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Court Rules That Awareness of Risk Is Not the Same as Expectation of Death in AD&D Claim

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Dr. Alan Yasko was insured by Reliance Standard Life Insurance Company under an AD&D policy. After flying from Chicago to Mexico, with a two-day break in Houston, he died from a pulmonary embolism about 12 hours after landing. The Mexican death certificate listed lung cancer as a contributing cause. About six months prior to his death, Dr. Yasko was diagnosed with cancer and underwent surgery. He had been advised that his prognosis for recovery was satisfactory.

Dr. Yasko’s wife, sole beneficiary of the AD&D policy, submitted a claim stating that her husband’s death was due to “air travel causing pulmonary embolism.” Reliance denied benefits, contending that “all the medical records we received indicate lung cancer was a contributing factor in [Dr. Yasko’s] death. Because lung cancer is a sickness and/or disease and because it contributed to [his] death, the above exclusion applies and no benefit is payable….” Ms. Yasko’s initial appeal only resulted in Reliance affirming its denial. Ms. Yasko filed suit.

In Yasko v. Reliance Standard Life Insurance Company, No. 12-C-02658 (N.D. Ill. June 30, 2014),  the District Court for the Northern District of Illinois had to determine if Dr. Yasko’s death was accidental and, if so, whether it was an “accidental bodily injury … caused directly by accidental means without any contributing causes.” “Accidental” was not defined in the policy but the Seventh Circuit holds as a matter of law, for death to be considered accidental, the deceased must have had a “subjective expectation of survival” and that expectation must have been “objectively reasonable, which it is if death is not substantially certain to result from the insured’s conduct.”

Reliance argued without success that Dr. Yasko did not expect to survive his travel to Mexico. The Court disagreed and pointing out that “it confuses knowledge of objective risk factors with a subjective expectation that such factors would inevitably be realized.” Awareness of risk is not the same as expectation of death, and Reliance failed to demonstrate that a pulmonary embolism was “substantially certain” to occur.

Reliance argued in the alternative that Dr. Yasko’s death was caused by disease, which was specifically excluded. The Court disagreed again noting that “even its own expert stated that ‘death was not the result of the progression of an identifiable disease.'” As to whether cancer surgery contributed to death, Reliance’s own expert thought it was “probably true that [the surgery] has less of an effect after three months.” Ms. Yasko’s medical expert stated further that, “[a]fter routine post-operative recovery, Dr. Yasko was considered cured of this problem with no residual effect upon his health.” Regarding other ambiguous policy terms, the court emphasized that they must be interpreted in favor of Ms. Yasko since Reliance, after all, drafted the policy. It had the option to specifically exclude pulmonary embolisms, but did not.

Interestingly, Ms. Yasko lost a motion for summary judgment in a separate action for accidental death benefits under a different AD&D policy. Yasko v. Standard Insurance Company, No. 12-C-2661 (N.D. Ill.. May 19, 2014). That policy contained a discretionary clause which gave Standard authority to interpret ambiguous terms in the policy and limited the court to a review of whether the interpretation was arbitrary and capricious.


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