If someone you depend on is an employee in Chicago covered by accidental death and dismemberment insurance through the former employer’s coverage, you may be surprised when an accidental death claim gets denied. When there is blood alcohol content, it becomes an important consideration in any case you bring under ERISA § 502(a), but it can be more of a consideration in some than others. So much depends on what the blood alcohol content (“BAC”) is, when it was measured, and how it was measured. It most frequently arises in automobile accidents, but the BAC, for an equivalent amount of consumed alcohol in the same person, will vary whether the BAC was measured before the covered individual passed away, and after, and even depending on the location from where it was drawn.
In a recent case, Wilson v. United of Omaha Life Insurance Co., No. 20-cv-377, 2021 WL 141700 (S.D. Miss. Jan. 14, 2021), Wilson was injured in a single car accident when he drove off the road, through a ditch, and into two trees. It resulted in a left arm amputation, thus an accidental dismemberment, but not death. Wilson’s BAC measured after the accident, and while he was still alive, was 0.142, and the legal limit was 0.08. The policy had an exclusion for accidents suffered while legally intoxicated. Often insurers will argue first that the injury or death was not an accident, because the insured knew there was a substantial risk of such injury by being intoxicated, and second that the exclusion bars the recovery even if it was an accident. In Wilson’s case, it was enough to result in a denial. But the analysis can change where the accident results in death.
We have had cases where medical examiners collect a blood sample from the insured’s heart after death, which can be useful to investigate whether there was any homicide or death was an accident, but can yield unreliable results in an accidental death insurance case. Studies have shown that BAC can increase after death due to fermentation in the blood. They also show that alcohol is subject to post-mortem redistribution, meaning the BAC is not the same in every location of the body after death, and it tends to disproportionately cluster in the heart, such that a heart blood sample after death can inflate the BAC in multiple ways. A good toxicology expert can help interpret the data in your favor, while an insurer will always interpret the data to help it deny your claim.
The key is to work with someone who helps you show the truth so a valid claim gets paid. If you have a denied claim for accidental death and dismemberment insurance, speak with an experienced accidental death insurance lawyer today. The time limits to challenge denied claims can be only 60 days.
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