A 35-year-old father of two died while kayaking on Lake Michigan in June 2016. At the time of his death, he had an ERISA-governed life insurance policy with The Standard insurance company. The Standard paid the death benefit, but refused to pay the $81,000 accidental death benefit, citing a policy exclusion for “deaths caused or contributed to in any way by the voluntary consumption of drugs or alcohol.”
The refusal was based on the fact that at the time of his death, the decedent had a blood alcohol level of .13. An expert reviewer for The Standard concluded that the decedent’s high BAC must have “at least contributed” to his drowning.
We filed an extensive ERISA appeal. No one witnessed why or how the decedent had come out of his kayak and into the water. We provided information about the weather (the waters and wind were calm when he left the shore, but in the 90 minutes between the time he embarked and the time he drowned, the winds had picked up and the waves were 3 feet high).
We included the last know picture of the decedent alive (which showed that the water was very calm). We also included TV news reports (via YouTube video) that showed that Lake Michigan had a very high rate of drownings in 2016 and had a reputation (unbeknownst to the decedent) of being a very dangerous lake for amateur kayakers. We also included a report from toxicology consultant Richard McGary that opined that even though the decedent’s BAC was high, it was impossible, in an unwitnessed drowning, to know whether intoxication played any role in the death.
Plaintiff’s Expert Toxicologist: Richard McGary
Defendant’s Expert Physician: Richard Tovar, M.D.