In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-1723

LETRAN TRAN,

Plaintiff-Appellee,

v.

MINNESOTA LIFE INSURANCE 

COMPANY,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17-cv-450 — Robert M. Dow, Jr., Judge.

____________________

ARGUED OCTOBER 24, 2018 — DECIDED APRIL 29, 2019

____________________

Before BAUER, MANION, and BRENNAN, Circuit Judges.

BRENNAN, Circuit Judge. 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 andconcluded

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-circularpattern 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 alsodiscussed

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

anyrepeatpractitioners.Moreover, autoerotic asphyxiationhas

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 notinherently injurious. The determinationthat 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 anintentional 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.