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.

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