### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18

- 1723
L E T RAN T RAN , Plaintiff

- Appellee ,

v.

M INNESOTA L IFE I NSURANCE C OMPANY , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division.

No. 17

- cv
- 450

— Robert M. Dow, Jr. , Judge

.

____________________
A RGUED O CTOBER 24 , 2018

— D ECIDED A PRIL 29 , 201 9

____________________

Before B AUER , M ANION , and B RENNAN , Circuit Judges

. B RENNAN , Circuit Judge

. Linno Llenos died engaging in a n 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 polic y riders

. Minnesota Life2 No. 18

- 1723

determined Llenos’s death was not accidental and fell un der

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. Thoughhis 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 purpos efully restricts blood flow to the brain to induce a feeling of euphoria

. “ A sphyxiophilia ” 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.” A MERICAN P SYCHIATRIC A SSOCIATION , D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL D ISORDERS 694 (5th ed. 2013). The pleasurable feeling experienced during autoerotic asphyxia tion derives from cerebr al hypoxia, or brain cell death from depriv ation of oxygen . Acute to severe hypoxia can lead toNo. 1 8

- 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 polic y also included Accidental Death & Dismemberment (“AD&D”) policy riders. The Basic Insurance Policy provided an additional $10,000 of AD&D coverage , and the Supplem ental 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 a n exclusion for intentionally self

- inflicted injury , which st ates: 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 payout s

. After reviewing the stipulated facts from both parties, the district4 No. 18

- 1723

court awarded judgment in favor of Tran under F ED

. R. C IV

. 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 review ing precedent onautoerotic 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 me aning 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 ambiguou s, courts construe them in favor of coverage. Santaella v. Metropolitan Life Ins. Co. , 123 F.3d 456 , 461 (7th Cir. 1997).No. 1 8

- 1723 5

Minnesota Life first challenges the district court’s finding that the insurer waive d 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 ad dress only the exclusion s

. 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 Asphyxiati on 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

. ; Padfiel d 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, t he district court applie d 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. I ndeed, Santaella sheds little light on the question of whether autoerotic a sphyxiation 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 fa tal, 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 inju ry amounted to only two paragraphs and was largely dependent on the case’s facts. For these reasons, w e 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, Pa dfield and Critchlow

. Both dealt with deaths by autoerotic asphyxiation, and both addressed policy exclusions for intentionally self

- inflicted injury. T h is court has never adopted the reasoning used in Padfield and Critchlow , and we decline to do so here. 2 We find b oth 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 an d Critchlow and f ou nd that autoerotic asphyxiation is an intentionally self

- inflicted injury under a de novo standard

. S ee, 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 autoeroticNo. 1 8

- 1723 7

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

. In Padfield , for example, t he Ninth Circuit reasoned that what killed the insured was not the autoerotic asphyxiati on, 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 bu t by the t otal loss of oxygen for a sustained period.” 378 F.3d at 260.
We reject such reasoning because it artificially separates

one continuous act in to two or more parts

. The insured in Padfield did not strangle himself in a nonlethal manner, then involuntarily s hift 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 self

inflicted 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. S un Life Assur. Co. of Canada , 354 F. App'x 183, 18 6 (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: o ne act of autoerotic asphyxiation caused the hypoxia that killed the m. The sa me reasoning applies here: Llenos placed a noose around his neck and stepped off a stool , strangling himself . The resulting hypoxia caused hi s euphoria, his black out, and his death

— all the result of one intentionally inflicted injury.
Even if we accept th e 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.”). T he Ninth Circu it disagreed, holding that no “persons of average intelligence and experience” would consider partial strangulation to be an injury. Padfield , 290 F.3d at 1129. T o the contrary, we find that an ordinary person would consider choking one self 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. T he criminal codes within our c ircuit confirm this : i n Wisconsin, In diana, and Illinois, partial strangulation not resulting in death is a prosecutable offense. See, e.g. , W IS

. S TAT . § 940.235 (2007), (“Strangulation and Suffocation”); I ND

. C ODE § 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 notNo. 1 8

- 1723 9

breathe, lost consciousness, and suffered bruising to the neck.”). Partial strangulation, even when not intended to cause death, is an i njury. 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 assert s we have ignore d the sexual nature and pleasurable aim of autoerotic asphyxiation. Even acknowledg ing 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 self

injury , such as by cutting or burning himself. See A MERICAN P SYCHIATRIC A SSOCIATION , D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL D ISORDERS 803 (5th ed. 2013) (DSM

- 5) (defining “Nonsuicidal Self

- Injury” as when an individual has “engaged in intentional self

- infli cted 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).”). Th e individual has still s uffered an injury, regardless of the desir ed 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 self

inflicted injury [of autoerotic asphyxiation] does not mean there was no injury.”).
Nor do we find relevant the popularity of autoerotic asphyxiation. The dissent c ontend s no one would practice autoerotic asphyxiation if it were commonly understood to be an injury. This ignores scientific and psychol ogical evidence to the contrary , including t he DSM

- 5 which has an entire section that deals exclusively with sexual masochism disorder,10 No. 18

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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.

W e 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, t h is improperly parses the causal chain of
events : strangulation (the “injury”) causes hypoxia, which leads to euphoria, then b lackout, and eventually death. T he 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 causati on: a bsent 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 de cide whether an act was accidenta l l y or intentionally done

— as required by the “intentionally self

- inflicted” exclusion in the AD&D riders

— by applying the subjective/objective test weNo. 1 8

- 1723 11

adopted in Santaella

. 123 F.3d at 46 2

– 63

. For an injury, we examine whether t he 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 subject ive 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 the re was no record evidence to indicate the insured ha d 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 Cri tchlow , 378 F.3d at 259; Padfield , 290 F.3d at 1129. But Critchlow took the analysis a step further and de cid ed 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, w e 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. W hy, if the person did not think injury was a substantial certainty, would h e use prophylactic measures during the act to mitigate injury?12 No. 18

- 1723

see also Padfield , 290 F.3d at 1131 (Lea v y, 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 ones e lf to cut o ff 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 inten t to survive. Padfield , 290 F.3d at 1131 (Lea vy, J., dissenting) ; Callaway , 825 A.2d at 1007

. U nder the plain and ordinary meaning of Llenos’s AD&D riders , his death is ex cluded from coverage. 5
I II

. 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. Met ropolitan 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 crea ting 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. 1 8

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rule on whether drunk driving deaths are acc idental). 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 w ere accidental, Tran is not entitled to AD&D coverage an d an additional $60,000 payment

. For these reasons, we R EVERSE the judgment

.14 No. 18-1723

B A U E R , Circuit Judge, dissenting. I would a ffirm the decision of the district cou r t. T he district court found that reasonable people could conclude tha t Linno Llenos’ (“Llenos”) cerebral hypoxia was not an i ntentional injury under the terms of Minnesota Life Insurance Company’s Accidental Death & Dismemberment policy riders (“ R ider”) and h i s death was an unexpected and unforeseen accident. Because reasonable people could conclude that his death was

an accident, and ambiguities in t he plan must be construed i n favor of coverage, I believe that the district court properly determined that Llenos’ death is covered by the Rider.
As t h e majority notes, the facts surrounding L l enos’ death

are n ot in dispute. During an act of manual-stimulation, Llenos engaged in self-strangulation. He h ung himself by the neck and was unable to free himself before succumbing to cerebral hypoxia and ultimately death.
The district c ourt’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

u nle s s clearly erroneous[.]” Fed. R. Civ. P. 5 2(a)(6). “ ‘[A] finding is clearly erroneous when although there is evidence t o support it, the reviewing court on t he entire evidence is left with the definite and firm conviction that a mistake h as been committed.’” Madden v. United States Dep’t of Veterans Affairs , 873 F .3d 9 71, 9 73 ( 7 th Cir. 2017) (quoting United S tates v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948)).
The majority focuses its analys is on t wo prongs: whether autoerotic asphyxiation is an injury and, if so, whether the i n jur y was intentionally self-infli ct ed

. I t co n cl ud es t h a t b eca use Llenos intentionally engaged in the sexual act which l ed to hisNo. 18-1723 15
death, even though his death was an a ccident, he is n ot entitled
to coverage under the Rider. This a nalysis se parates the manual-stimulation f rom the self-strangulation and erroneously concludes that autoerotic asphyxiation is an injury.
The majority cleaves the act into two separ a te a ctions: (1) the act of masturbation, and (2) t he act o f self-strangulation. This confuses the a nalysis; it erroneously divides one global process into two distinct acts and the majority fo cuses solely on the strangulation aspect while ignoring the contemporaneous masturbatory act. So, the question should be: could r easonably intelligent p eople conclude autoerotic asphyxiation i s not intentionally injurious behavior? I believe they can.
When examining whether or not a utoerotic asphyxiation is

an injury, our analysis in Sa nt a e ll a and our sister circuits’ perspective on t h e question is illuminating. S antaella 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 a n accidental death polic y wa s 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 r esult from t he insured’s conduct.” Santaella , 123 F.3d at 463 (quoting Todd v. AIG L ife Ins. Co. , 47 F.3d 1 44 8 , 1 4 56 (5th Cir. 1995)). The same analysis should be imported to the question o f whether or not the act a t bar—autoerotic asphyxiation—is injurious; that is to say, did the practitioner r easonably e xpect not to injure h imself and was that expectation objectively reasonable.

In Santaella , like he r e , there was no factual dispute. The decedent intentionally took a mild prescription pain killer and suffered an overdose. The medical examiner r uled out natural16 No. 18-1723

ca uses, suicide, homicide, and unknown ca uses a n d co n cl ud ed that the decedent’s death was the result of an ov e r dos e f r om propoxyphene at a level less than one-third the t ypically l ethal blood l evel. This C ou r t concluded that because the decedent had subjective expectation o f survival and the objectively reasonably person would not think death a substantial certainty, the death was an accident.
Here, there i s evidence that L lenos intended t o weather the

m asturbatory episode unscathed. During the course of the investigation, L lenos’ wife informed police that he was n o t suicidal, that the family’s finances were secure, and she d id n o t think he committed suicide. The report further states that there

were p rophylactic measures in place to mitigate t he ris k of injury during the a ct, specifically, a towel wrapped a round his neck, his foot resting on a step stool, and a possible rele ase mechanism. Lastly, the corone r found rubber rings around Llenos’ genitals and noted that h is “pubic hair was shaved i n

a semi

- ci r c ul a r pattern consistent with prior use[.]” The reco r d , limited thought it may be , indicated Llenos had a history of engaging in autoerotic asphyxiation a nd doing so without injury, leading one t o the belief that the act, as it was intended to be performed, was not injurious.

Because the first prong of the analysis is sa tisfied, we should look to whether such expectation was objectively reasonable—that is to say injury was not substantially certain. For injur y to be the substantially certain result of autoerotic asphyxiation, the objectively reasonable person would have t o expect t h at the injury was the likely outcome from the a ct. See Santaella , 123 F.3d at 462 (quoting Wickman v

. Nw. Nat. Ins. Co. , 9 0 8 F.2d 1077, 1088 (1st Cir. 1990)); see also Med. P rotective Co. of For t W

a y ne , Indiana v. A m. Int’l Specialty Lines Ins. Co. , 911 F.3d 438, 449 (7th Cir. 2018), reh’g denied (Jan. 29, 2019) (brieflyNo. 18-1723 17

disc u s s ing substantial certainty i n the k nown loss context as

“ v i r t ua l l y inevitable”). This objective p r o n g wa s a l so d i scussed by our sister circuits. 1

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

. 2002), a nd C ritchlow v. First UNUM Life Ins. Co. of Am. , 378 F.3d 246, 258 (2d Cir. 2004), the Ninth and Second Circuits acknowledged that asphyxiophilia a nd autoerotic asphyxiation are

w idely p racticed sexual acts. If i t were objectively reasonable to conclude that an injury, as commonly understood, was the likely result of autoerotic asphyxiation there would be few if

a n y r e p e a t p r a c t i t i o n er s. M o r e o v er , a ut o er o t i c a s p h y x i a t i o n h a s permeated popular culture a nd 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 a nd the objectively r easonable person would n o t think an injury was a substantial certa inty, his death should
not be deemed the result of an i n t en t ional injury. Therefore, the Rider’s exclusion would not apply.
The majority’s position incorrectly separates t he masturbation from the asphyxiation and as a result creates a rule where it will always be excluded from coverage under an accidental death & dis m e m berment policy that includes an intentional injury exclusion. Llenos’ conduct was undoubtedly risky but

wa s n o t i nherently injurious. Th e d et er mi n a t i o n t h a t a ut o er o t i c asphyxiation is an injury ignores t hat fact tha t when done

1 Like the ma

j o r ity, I decline to adopt the analysis in either Padfield or Critchlow because they un necessarily parse one continuous event i nto distinct phases.18 No. 18-1723

corr e c tly it can and does have a recreational purpose with no lasting health consequences. By contrast, in the case of t he skydiver or bungee jumper whose equipment malfunctions, the injury is t he sudden stop when the t h rill se eke r crashes back to earth, but t he act—the jump

— wa s a n i n t en t i o n a l o n e. B u t , t h e subject i v e and objective intent was to survive. Like t he thrill seeker o r extreme a thlete who steps out o f an airplane or purposefully exposes himself
to outrageous conditions, the asphyxiophiliant is not n ecessarily acting injuriously.
The majority focuses its inquiry on the injury a spect of Llenos’ self-strangulation incorrectly concluding that any amount of asphyxia tion is injurious and therefore autoerotic asphyxiation must be excluded unde r the Rider. But, as the district cour t points out, “reasonable minds could differ on whether the term ‘injury’ as u s e d in t he [Rider] includes Llenos’ induction of cerebral hypoxia u nder the facts of t his case.”
Because r easonable minds can differ about whether or n o t autoe rotic asphyxiation would be an i ntentionally inflicted injury, it creates an ambiguity in covera ge, and a mbiguities
must be resolved in favor of coverage. Minnesota Life is i n the best position to remedy t his ambiguity by expressly excluding coverage for s u ch inherently dangerous activities, as o ther insurance providers have done. S ee Johnson v. Am. United Life I ns

. Co

. , 7 16 F.3d 813, 817 (4th Cir. 2013) (noting a policy exclusion for “ hang-gliding, bunge e jumping, automobile racing, motorcycle racing, s kydiving, r ock climbing, or mountain climbing.”); Kovach v

. Zurich Am. Ins. Co. , 587 F.3d 323, 336 (6th Cir. 2009) (noting policy exclusions forNo. 18-1723 19 “skydiving, parasailing, hangglinding [sic], bungee-jumping, or any similar activity.”).

In conclusion, I would affirm t he decision o f the district
court. The d istrict court properly conc lu ded that cerebral hypoxia was not an intentional injury and Llenos’ death was

an unforeseen accident. A utoerotic a sphyxiation is an inherently dangerous sexual p r a ct i ce. The matter at h and shows that

even seasoned practitioners can succumb to cerebral hypoxia and die. Therefore, I respectfully DISSENT.