AD&D Intoxication Exclusion Attorney

Nationwide Representation for Accidental Death and Dismemberment Insurance Intoxication Exclusion Denials

5 Steps to Beat Intoxication Exclusion Denials in Accidental Death and Dismemberment Insurance Claims

On this page, former insurance company attorney J. Price McNamara explains 5 steps to beat intoxication exclusion denials, with examples from his own clients’ past cases:

• Appeal the intoxication exclusion denial
• Understand your denial letter and the specific wording of the intoxication exclusion in your policy
• Understand two major types of intoxication exclusion
• Gather all evidence to support your appeal
• Write and send your appeal letter to the insurance company

The intoxication exclusion is one of the most common excuses insurance companies give for an AD&D claim denial. These denials are common in cases involving many different kinds of accidental deaths. Automobile accidents, motorcycle accidents, boating accidents, bicycle accidents, ATV or four-wheeler accidents, bad falls, drownings, and gunshot accidents are the most common types of accidents that we see where insurance companies attempt to deny claims based on intoxication exclusions.

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Appeal an Intoxication Exclusion Denial for Best Chances of Winning Benefits

Many of our successful clients tell us that when they read their intoxication exclusion denial letter, and the evidence that the insurer said supported the denial, they didn’t think they had a chance of winning on appeal. That’s what the insurer wants you to think. But clients later come to learn that the insurer is only telling one side of the story.

So while “appeal the denial” may sound too obvious to include as a step to winning one of these cases, many people don’t appeal thinking it’s hopeless, or wait until the deadline to appeal has passed (usually 60 days after a denial letter). Their claim is then over.

Take it from a former insurance company attorney who now helps people overturn accidental death insurance benefit denials and win back their benefits. If you get a denial letter citing this exclusion, don’t give up. Appeal the denial, and don’t wait. Insurance companies are often wrong in their denials, and in such cases, you can win an appeal of the denial, or win in court if you fight their denial strategically.

But in my opinion, this is critical to a successful appeal: since intoxication exclusion denials are usually supported by toxicologists and other physicians and experts that the insurance company hires and pays to issue an opinion, it is usually a big mistake to appeal such a denial without retaining expert toxicologists and other experts to decide if those opinions are sound, and if not, to issue reports contradicting those opinions to include in your appeal. Many will cut corners and not follow this critical step, which can doom a great opportunity to win.

Follow these steps for best chances of success.

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Understand Your Denial Letter and The Specific Wording of The Intoxication Exclusion in Your Policy Is Critical

The insurance policy is a contract between the insurance company and its insured. Thus, the particular language of a given policy is what applies to the claim.

Intoxication exclusions are written very differently from policy to policy, and very subtle differences in the specific language of a particular exclusion can make or break a case. So you need to thoroughly understand the reasons that the insurance company claims in the denial letter support the intoxication exclusion claim denial, and the specific language used in the policy’s intoxication exclusion clause.

Take note of all evidence they say supports the denial, and whether they relied on the opinion of any expert witnesses. This will clue you in on what experts you may need to retain to support your appeal.

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Understand Two Major Types of Intoxication Exclusion

The intoxication exclusions found in most accidental death and dismemberment insurance policies fall into two major categories: those requiring that intoxication caused the accident or loss to some degree (sometimes called causation intoxication exclusions); and those requiring merely that the insured be intoxicated when the accident or loss occurs, without requiring any causation between the insured’s intoxicated state and the accident (sometimes called status intoxication exclusions).

1. Intoxication exclusions requiring that alcohol caused an accident, not simply that the insured was intoxicated when the accident took place

Under this type of intoxication exclusion, the burden of proof is on the insurance company not only that the insured was intoxicated, but also that the intoxication caused the accident in question.

The courts say it this way: “[a]s a matter of general insurance law, the insured has the burden of proving that a benefit is covered, while the insurer has the burden of proving that an exclusion applies.” Estate of Thompson v. Sun Life Assur. Co. of Canada, 603 F. Supp. 2d 898, 908–09 (N.D. Tex. 2008).

An example of such an exclusion from one of our clients’ cases against Lincoln Financial Life Insurance Company illustrates an intoxication exclusion requiring causation.

The facts

We won a case in federal court for a client who had paralyzing spine injuries when he dove into shallow water striking his head on the bottom after fishing all day with friends. His injuries qualified as “dismemberment” under Lincoln’s AD&D policy. He had a post-accident blood lab drawn at the hospital stating that he had a high blood-alcohol level when the accident took place.

The exclusion

Lincoln Financial denied his dismemberment coverage under a policy exclusion that said it would not pay benefits for:

“Any loss that is contributed to or caused by: … the presence of alcohol in the covered person’s blood which raises a presumption that the covered person was under the influence of alcohol and contributed to the cause of the accident. The blood alcohol level is governed by the jurisdiction of the state in which the accident occurred…”

The law

That exclusion clearly requires causation between the presence of alcohol (intoxication) and the accident. In cases involving such an intoxication exclusion, insurers still commonly jump to the conclusion that if the person who died had a certain blood-alcohol level at the time of the accident, intoxication necessarily caused the accident. Lincoln essentially did that in our client’s case, but that is overstepping by the insurance company.

Often there is undeniable evidence that the insured was intoxicated, but the law requires that the causation element be supported by factual evidence in the record. Capone v. Aetna Life Ins. Co., 592 F.3d 1189 (11th Cir. 2010) illustrates this point.

The appeal

In this case, we took detailed sworn statements from our client and every known witness who was with him that day, addressing the amount of alcohol consumed, our client’s behavior throughout the day and at the time of the accident, and the circumstances of the accident itself. It turns out that every witness agreed that relatively little beer was consumed over the course of a long day of fishing, and that our client’s behavior did not seem at all intoxicated.

We then hired a highly respected expert toxicologist to look over all of the evidence. He determined that the hospital blood lab results could not be accurate, and that the facts could not support a conclusion that the accident was caused by intoxication. We presented all of that evidence to Lincoln to consider on appeal, but Lincoln again denied the claim, with its experts disagreeing with ours.

The lawsuit

So we filed suit in federal court. Our client refused to accept anything less than full policy benefits and opted to take it to trial. The federal judge deciding the case ruled in our client’s favor, awarding full policy benefits. Lincoln appealed to the U.S. Fifth Circuit Court of Appeals, and the case was later settled for a confidential amount.

Quotes from the court

Rejecting Lincoln’s handling of the claim, the court found that Lincoln’s review was not “fair, impartial, and thorough.” The court said Lincoln’s experts took “a one-sided view of the record,” while “elevating second-hand double hearsay in unsworn medical records over first-hand eyewitness affidavits.”

The court also pointed to what it described as Lincoln and its expert toxicologist “[c]onducting a result-oriented review,” and “wholesale disregard of eyewitness affidavits.”

Key takeaway 1

The exclusion in this case required the insurer to prove causation. It was key to recognize this requirement, and cite case law to the court to support our position.

Key takeaway 2

Without hiring a top-notch expert toxicologist to support our case, gathering the important witness statements, and timely presenting them on appeal, we could not have used them in the lawsuit, and we would have lost the case.

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A Hypothetical Example of Sufficient Evidence of Intoxication, but No Evidence to Support Causation

Take for example a fatal automobile accident where the insured victim who died was intoxicated by alcohol, but he had a green traffic signal and was T-boned by another driver who had a red traffic signal. In that case, although the insured who died may have been intoxicated, intoxication obviously did not cause the accident. The fault of the driver running the red light caused the accident.

Under this example, the insurance company should pay, but will often deny the claim by misapplying its intoxication exclusion.

2. Intoxication exclusions requiring only that the insured be intoxicated when an accident causing death occurs, regardless of whether intoxication caused the accident

Other intoxication exclusions require only that the insured was intoxicated when an accident causing death occurred, regardless of whether intoxication caused the accident.

Under exclusions written this way, the insurer can much more easily defeat a claim when the insured’s blood-alcohol level reaches the point of “intoxication” because it does not have to prove that the intoxication caused the accident.

But even in such a case, there are still ways to win. We will often hire expert toxicologists to review all of the evidence to determine if any circumstances of the case cast doubt upon the accuracy of any testing that showed a certain blood-alcohol level.

Gather All Evidence to Support Your Appeal

Gather all existing documents and evidence relevant to your claim. To begin, include:

• The insurance company’s denial letter
• The insurance policy
• The insurance company’s entire claim file

They are required by law to give you a copy of the entire claim file free of charge if you request it. You’ll want to make this a written request and send it by certified mail so that there’s a record of your request.

The claim file will typically include:

• Any police report
• Any toxicology report or other medical records
• Any ambulance or emergency room records
• Any relevant pre-death medical records
• Any autopsy performed
• Witness statements
• Reports by expert witnesses
• Photographs of the accident scene

Next, decide what other evidence you can present that can support your appeal.

This may include:

• Additional witness statements
• Evidence challenging the blood-alcohol testing
• An independent toxicologist or other expert witness

Write and Send Your Appeal Letter to The Insurance Company

Using the evidence from the initial claim file, any recovered missing evidence, the additional evidence you’ve built, the relevant policy provisions, and case law, draft an appeal letter that presents your best factual, medical, and legal arguments to recover the benefits you deserve.

Include copies of all supporting documents and send your appeal letter by certified mail to avoid any argument of untimeliness.

Even if the insurance company denies the appeal, the work you put into the appeal will be critical for your argument to the judge in federal court, as the above examples illustrate.

Final Thoughts

It’s really impossible to generalize the best way to build an appeal to fight an accidental death and dismemberment insurance denial based on an intoxication exclusion, because the strategies will be different depending on the facts of a given case.

But understanding and following the steps above as a guide will significantly enhance your chances of overturning the insurer’s denial.

Consulting with an attorney experienced in dealing with these cases can provide the expertise and guidance needed for the best chances to navigate this daunting process effectively. J. Price McNamara Disability, Life, AD&D Insurance Attorneys exclusively handles claim denial claims, appeals, and litigation nationwide.

If you are fighting one of these denials, what I would suggest before you speak with the adjuster or do anything else concerning your claim is to download our free book right here on this website called “Win Your Accidental Death and Dismemberment Benefits Appeal.” It will help you avoid common mistakes that many people make when appealing these claims and will tell you what insurance company traps and tricks you should look out for as you pursue your claim.

Better yet, contact our office and we’ll look at the particulars of your claim together if you’d like, and we’re happy to review your denial letter for free, at no cost to you.

Call or text (225) 201-8311 or complete a Free Case Evaluation form