New York Legal Update

Surviving Partner Of Civil Union Not Entitled To Workers' Compensation Death Benefits

More and more jurisdictions are recognizing civil unions between same sex couples. What happens when one of the partners to a civil unions dies because of a work related injury. Is the surviving partner entitled to New York Workers' Compensation Death Benefits? The Third Department was faced with this question yesterday in Matter of Langan v State Farm Fire & Cas., 2007 NY Slip Op 10438 and decided that the surviving partner is not entitled to Workers' Compensation Death Benefits.

In that case, John Langan and Neal Conrad Spicehandler entered into a civil union in Vermont (see Vt Stat Ann, tit 15, § 1201) in November 2000. In February 2002, Spicehandler (decedent) was struck by a car while working. After undergoing resulting surgery the decedent died. Langan (claimant) filed workers' compensation claims for decedent's injuries, and for death benefits as decedent's surviving "spouse" pursuant to Workers' Compensation Law § 16 (1-a). The Worker's Compensation Board found that the claimant did not have standing as a "spouse" to assert the death benefits claim.

Under Workers' Compensation Law § 16 (1-a) certain benefits are payable to the surviving spouse, which is defined as "the legal spouse" of the deceased employee. No other definition of spouse if given.

On claimant's appeal, he made three arguments: (1) Workers' Compensation Law § 16 (1-a) includes a partner to a civil union as a surviving spouse; (2) the doctrine of comity required New York to recognize claimant as decedent's surviving spouse for death benefits purposes and, (3) the deprivation of death benefits to same-sex partners of a civil union violates the Equal Protection Clause of the US Constitution. The Third Department rejected each argument.

First, the Court examined the statute's plain language and legislative history and determined that a "legal spouse" was a husband or wife of a lawful marriage. Second the Court found that doctrine of comity did not require New York to confer upon partners of civil unions all of the legal benefits recognized by Vermont. The Court noted that while Vermont considered parties to a civil union to be "spouses" under that state's law it did not consider such parties to be part of a "marriage"(see Vt Stat Ann, tit 15, § 1204 [a], [b], [e] [9]; Vt Stat Ann, tit 15, § 1201 [2], [4]). The Court further stated that extension of benefits to civil union partners should entail a consideration of social and fiscal policy more appropriately left to the Legislature. Third, and finally, the Court found that prior case law had established established that confining marriage and all the laws pertaining either directly or indirectly to the marital relationship to different sex couples was not offensive to the Equal Protection Clause.

The Presumption Against Suicide: Was It Suicide Or Not?

It has been written in the case law that suicide is "contrary to the general conduct of mankind'" and "an improbability [in that] most men cling to life" (Mallory v Travelers' Ins. Co., 47 NY 52, 54-55 [1871]). Thus, in insurance law there has arisen the doctrine of the presumption against suicide. The presumption applies in actions to recover on life insurance policies, and it shifts the burden to the insurer to establish suicide as a defense only if no conclusion other than suicide may reasonably be drawn.

An interesting set of facts applying the presumption is reported in the First Department's decision last week in Green v William Penn Life Ins. Co. of N.Y., 2007 NY Slip Op 10076.

In that case, on February 20, 2002, plaintiff Lisa Green found her husband, Alan Green, who was 54 years old, lying in their bed when she arrived home from work around 6:30 pm. The bed was made and he was on top of the covers with a copy of the New York Times, his Palm Pilot and his portfolio lying next to him. Finding him unresponsive, she called 911. Emergency Medical Services technicians arrived and determined that Mr. Green was already dead. Members of the police department and the Office of the Chief Medical Examiner conducted an initial investigation for about six hours. Plaintiff's mother, her sister and Mr. Green's cousin and attorney, Richard Wolff, also came to the apartment.

An empty glass and two bottles of water were found on the nightstand next to the bed. In the top drawer of the nightstand were an empty bottle of hydrocodone pills and an empty bottle of Ambien pills. The hydrocodone bottle had contained 40 pills on January 23, 2002, when Mr. Green filled a prescription following hernia surgery, and the Ambien bottle had contained 30 pills when his prescription was refilled on February 6, 2002. In addition, 61 Vicodin pills out of 100 prescribed to Mr. Green on June 7, 2000 were found in the drawer. An empty vial of Percocet was also found, from a 1997 prescription for plaintiff.

Plaintiff would not permit an autopsy to be performed on Mr. Green because of the Jewish faith. Plaintiff also objected to a toxicological examination also for religious reasons, seeing no difference between it and an autopsy. After a funeral service, Mr. Green's body was cremated, notwithstanding Jewish law against the procedure. Plaintiff explained that it was Mr. Green's desire to have his ashes spread over Yankee Stadium, and that her "husband's wishes were more important than anything."

Sounds like suicide? Wait.

The plaintiff then sought the $500,000 death benefit of her husband's life insurance policy. The defendant insurance company refused to pay claiming Mr. Green committed suicide and the policy contained a clause limiting its obligation to repayment of the paid premiums if the insured committed suicide within two years of issuance of the policy. Plaintiff therefore commenced this action seeking to recover under the policy.

The trial court concluded that there was "no reasonable explanation in this case other than suicide," dismissed the complaint, and thus denied the wife the insurance proceeds.

On appeal, the First Department reversed finding that the trial court was wrong in concluding that there was no reasonable explanation in this case other than suicide. It stated that it was also possible to reasonably infer other causes for his death, including the possibility that Mr. Green accidentally overdosed on the pain or sleep medication he had been prescribed following his hernia surgery. The Court stated its obligation was to determine whether the trial court properly concluded that suicide was the only conclusion that could reasonably be drawn from the evidence. And as a matter of law, it found it was not.

The Court noted that his wife, the plaintiff, testified that her husband exhibited no signs of depression or other unusual behavior, and that there was evidence that he had scheduled a normal day the day his body was found and that he was upbeat, positive and excited about a new business he had begun. While his physician testified that the day before his death he expressed feelings of depression and anxiety and described problems with insomnia, Mr. Green also explicitly told his internist that he would never take his life, he was not suicidal, and that he was just down. The Court also noted that Mr. Green had made appointments, and was found with his palm pilot and portfolio out indicating that he was "a man engaged in life, not one determined to depart it." The Court also stated that it was impossible to determine how much medication Mr. Green had taken and that the wife's refusal to permit a toxicology exam or an autopsy on religious grounds did not compel the conclusion that the death was a suicide.

It would thus appear that the presumption against suicide is very strong.

Doctor's Malpractice Insurance Does Not Cover Sexual Assault Claim

Does a medical malpractice insurer have to cover a claim of sexual assault against the insured doctor? Not in the case of Elashker v Medical Liab. Mut. Ins. Co., 2007 NY Slip Op 09638 decided by the Third Department on Thursday. The doctor at issue was an attending physician at a nursing home. He was accused by a nurse employed by the nursing home of sexual assault. The doctor referred the claim to his medical malpractice insurance carrier. The insurance carrier investigated the claim but then denied coverage.

The doctor then commenced a declaratory judgment action that the insurer was obligated to defend him because the nurse had also been a patient of the doctor and she had testified in her underlying action that the doctor had been palpating her thyroid when the attack occurred.

The Third Department affirmed summary judgment in favor of the insurer. The medical malpractice policy at issue only covered claims brought against an insured for "Professional Services" that were provided or should have been provided. The Court stated that there was no evidence that the nurse ever complained about the doctor's "professional services" or asserted that his conduct was professional malpractice. In such circumstances, the Court stated that the thyroid examination described by the nurse merely provided the occasion for the alleged assault and did not convert the doctor's acts into professional malpractice.

I wonder if medical malpractice carriers offer a separate sexual assault rider to their policies.