Green v. William Penn Life Insurance

48 A.D.3d 37, 848 N.Y.S.2d 109

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 2007
• Status: Published

Opinions

OPINION OF THE COURT

Saxe, J.

On this appeal, we are provided the opportunity to revisit the ancient common-law evidentiary presumption against death by suicide, as it is applied in New York, particularly as it relates to appellate review of a trial court’s finding of suicide.

The facts are as follows. On February 20, 2002, at approximately 6:30 p.m., plaintiff Lisa Green found her husband, Alan Green, who was then 54 years old, lying in their bed when she arrived home from work. 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, plaintiff called 911, and Emergency Medical Service technicians then 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-in-law 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, following her mother’s upset reaction and Mr. Wolffs agreement, explaining that she and her husband were Jewish and “we don’t do that.” Plaintiff also objected to a toxicological examination 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.”

After Mr. Green’s death, plaintiff requested that defendant insurance company pay her the death benefit arising out of a life insurance policy it had issued to Mr. Green on December 3, 2001, in the amount of $500,000, designating plaintiff as beneficiary. Defendant refused to pay, on the ground that Mr. Green’s death resulted from a suicide and the policy contained a clause limiting its obligation to repayment of the paid premiums in the event the insured committed suicide within two years of issuance of the policy. Plaintiff therefore commenced this action seeking to recover under the policy. In its answer, defendant asserted as an affirmative defense that the death of the insured was the result of suicide.

After a nonjury trial, the court concluded that there was “no reasonable explanation in this case other than suicide,” and dismissed the complaint. This appeal ensued.

We hold, contrary to the trial court, that the evidence failed to overcome the powerful presumption embedded in our common law against suicide.

In this state, the nature and application of the presumption against suicide have evolved over time. Because the presumption is based on the premise that “[s]uicide ‘is contrary to the general conduct of mankind’ ” and “an improbability [in] that most men cling to life” (Wellisch v John Hancock Mut. Life Ins. Co., 293 NY 178, 184 [1944], quoting Mallory v Travelers’ Ins. Co., 47 NY 52, 54-55 [1871]), treatises have observed that it is not a true presumption, which involves assuming one fact based upon proof of another fact (Black’s Law Dictionary 1203 [7th ed 1999]), but “rather, it is a metaphorical way of stating that the burden of proof is on the party alleging suicide” (2 Fishman, Jones on Evidence § 10:5, at 215 [7th ed]). In fact, the Wellisch Court characterized it as a different sort of presumption, one that “is really a rule or guide for the jury in coming to a conclusion on the evidence” (293 NY at 184).

There is no unanimity among common-law jurisdictions as to the degree of the burden placed on the party seeking to establish that a death was by suicide; some jurisdictions have imposed a preponderance of the evidence standard, others require more (see 2 Fishman, Jones on Evidence § 10:5, at 215-216 [7th ed]). But the standard now applied in this state, as established in Wellisch, creates an exceedingly high burden. As was clearly explained in the case of Schelberger v Eastern Sav. Bank (93 AD2d 188, 192 [1983], affd 60 NY2d 506 [1983]), “[application of the presumption shifts the burden of going forward to the insurer to establish suicide as a defense by ‘clearly establishing such facts as will exclude any reasonable hypothesis of accidental death‘ ” (quoting Vance, Handbook on the Law of Insurance, at 571 [3d ed] [emphasis added]). In other words, due to the presumption, a finding of suicide is warranted only if “no conclusion other than suicide may reasonably be drawn” (Schelberger v Eastern Sav. Bank, 60 NY2d at 510).

On the record before us, the trial court was wrong in concluding that there was no reasonable explanation in this case other than suicide. Based upon the evidence before the court, 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. But our difference of opinion regarding which inference is the more likely one is not determinative. The analysis we must employ on appeal does not turn on the relative merits of the competing inferences as to whether Mr. Green’s death was caused by suicide, accident or other means. Reasonable people may differ as to whether the evidence better supports one hypothesis or the other. Our obligation here is to review the evidence and determine whether the trial court properly concluded that suicide was the only conclusion that could reasonably be drawn from the evidence. As a matter of law, it was not. Therefore, application of the law regarding the presumption against suicide necessitated a directed verdict in this case, and we cannot uphold the determination of the trial court as factfinder that Mr. Green committed suicide.

We do not disagree that there was sufficient evidence to logically support the inference of suicide. However, there was much evidence that supports other conclusions as to what caused his death. We are not making findings contrary to those of the trial court as to what occurred; rather, we are simply observing that there are other reasonable conclusions that may be drawn from the evidence, aside from suicide, and that therefore, as a matter of law, the presumption against suicide was not overcome.

Plaintiff testified that February 20, 2002 began as an ordinary day for the couple. Mr. Green, who exhibited no signs of depression or other unusual behavior, told his wife that he would be going to the gym that morning to relieve abdominal pain from his hernia surgery, and that he had to make telephone calls, including a work-related conference call, that afternoon. Indeed, he was dressed in gym clothes—jeans, t-shirt and sweatshirt, with his sneakers on the floor next to the bed—when he was found that evening.

In addition, Mr. Green’s cousin, Richard Wolff, who represented Mr. Green in litigation with his former employer, testified that he spoke with Mr. Green on the morning of February 20, 2002, and they scheduled a meeting for the following week. According to Mr. Wolff, Mr. Green was upbeat, positive and excited about the consulting business he had begun.

Mr. Green had visited his internist the day before his death, and according to the physician’s testimony, expressed feelings of depression and anxiety and described problems with insomnia. However, importantly, when the physician asked him directly if he felt depressed enough to take his own life, Mr. Green protested that “he would never do such a thing, he was not suicidal, he was just down.” Furthermore, Mr. Green went to the trouble of following his internist’s suggestion and telephoning the psychiatrist he recommended, leaving a message on his voicemail.

Moreover, his actions shortly before his death and the circumstances at the time of his death support the inference that his death was accidental. His lying on top of the covers of his bed with a copy of the New York Times, his Palm Pilot and his portfolio surrounding him, like the conversations he had that day and the appointments he made, point to a man engaged in life, not one determined to depart it.

The trial court heavily emphasized the hearsay statements contained in the police report and medical examiner’s report, in both of which it was reported that plaintiff remarked that Mr. Green was feeling depressed and had overdosed on pain medication. The court similarly pointed to the testimony of Mr. Green’s sister, reporting that on the day after his death plaintiff said that Mr. Green had been depressed and that his death might be attributable to an overdose. Based upon these reports, the trial court held plaintiffs testimony to be incredible to the extent she denied that Mr. Green was really depressed or under substantial pressure and asserted that she did not know what had caused his death, that it might have been a heart attack, or an aneurysm, or an adverse reaction to medication.

The dissent highlights the finding regarding plaintiff s credibility, treating it as highly supportive of the verdict. However, we view that determination as having limited importance. Whatever plaintiff feared or believed on the day she found her deceased husband regarding the cause of his death, that fear or belief is not evidence of how he died. In any event, it would be appropriate to question plaintiffs credibility even in the absence of contradictory statements, given her pecuniary interest in the matter.

The trial court asserted that the amount of medication taken by Mr. Green on the day he died was “inconsistent with an accident and only consistent with the fact that it was a deliberate suicidal act.” This assertion is based upon conjecture, and not sufficiently supported by the record. We simply do not know how many pills remained in the Ambien vial by that date. Mr. Green’s average usage during the previous prescription may be relevant, but it cannot be relied upon by itself to establish as a fact his usage during the weeks preceding his death. Notably, plaintiff said that Mr. Green took the Ambien regularly and that if he woke in the middle of the night, he took another pill or half a pill. She also admitted to having used approximately five of the Ambien pills herself. The described usage could have left the vial empty or nearly empty on the date in question, without enough Ambien to cause death. As to the painkiller hydrocodone, there is no basis at all for a conclusion that any of it remained in its vial on that date, given that it was prescribed 27 days earlier and was to be taken at the rate of two every four hours.

The court’s remarks regarding the psychology of acute reactive depression and the possibility of it leading abruptly to suicide, although interesting and perhaps apt, like its conclusions regarding the number of pills available to Mr. Green on that date, do not negate the availability of other reasonable conclusions besides suicide to be drawn from the evidence here.

The evidence that Mr. Green was experiencing physical, emotional and financial difficulties, following his recent career change and very recent surgery, could certainly support an inference that he committed suicide, but fails to compel it. That the trial court found it “quite clear” that Mr. Green was depressed does not suffice.

Nor does plaintiffs refusal to permit a toxicology exam or an autopsy on religious grounds, notwithstanding her compliance with the insured’s wish to be cremated, compel the .conclusion that the death was a suicide.

The open questions posed by the dissent, such as why plaintiff would have remarked on the lack of pills and suggested the possibility of suicide immediately after her husband’s death, and what else could have caused his death, need not be answered to properly rule on this appeal. In the face of the applicable presumption against suicide, we need only determine whether the court correctly concluded that suicide was the only reasonable conclusion to be drawn. However, we observe that a woman whose husband just died might, in a panic, draw conclusions that she may later he dissuaded from by calmer thinking, and that middle-aged men may also die of accidental overdoses as well as from other sudden fatal breakdowns of bodily functions. While an autopsy would have helped answer those questions, the family’s wishes against the procedure do not serve to eliminate those other possibilities.

In many other cases, equally strong bases were presented for an inference of intentional suicide, yet the presumption could not be overcome. In Schelberger (93 AD2d at 197-198), the insured had ingested 30 to 40 Tuinal pills (a barbiturate), the death occurred on Christmas Day, the insured had recently had an argument with his wife, the telephone cord had been allegedly ripped from the wall, and the decedent was a known drug user who had previously been hospitalized for an overdose of Tuinal upon ingesting somewhere between 4 and 40 pills. This Court observed that “other than proof as to the ingestion of a large quantity of drugs, there is no evidence here that the insured intended to take his own life” (id. at 199). This Court therefore concluded that the presumption against suicide required upholding a jury verdict in favor of the insurance beneficiary (id.), and the Court of Appeals observed that there was “no basis in law for disturbing [the] verdict” (60 NY2d at 512).

In Wellisch, the insured was found comatose in his car which had crashed into a tree despite dry and clear weather conditions, and his death a few days later was determined to be the result of barbiturate poisoning from the drug Seconal, which he had picked up from a pharmacy for his aunt on the day of the crash, and which he was known to have taken in the past for headaches (293 NY at 181). The evidence in Wellisch also established that earlier that day the insured had complained of a headache, was in a nervous and irritable mood, had slapped one of his children, causing the child to fall, break a glass and cut himself, and had experienced some discord between himself and his wife, prompting his aunt to call the police. In fact, when the police arrived, the insured had remarked, “ ‘[w]ell, . . . she won’t be bothered with me any more’ ” (id. at 182). He then went out with his fishing gear, and crashed on the way to his favorite fishing place. In addition, a scrap of paper was found in the car upon which the insured had written, “ ‘[a] 11 life is only one dark hour . . . The best thing in this hapless strife is the end of life,’ ” which the insurance company viewed as a suicide note, while the wife viewed it as poetry (id. at 183). The Court observed that while “[i]t was conclusively shown that Morris Wellisch died from an overdose of seconal[,] ... a question was presented as to whether he took the extra capsules by mistake or with the intention of killing himself,” finding the proof circumstantial and equivocal (id. at 184). It particularly noted that “[t]here was an innocent reason for the possession and use of the drug, in some quantity” (id.). Accordingly, in reliance on the application of the presumption, the Court upheld a finding against the insurance company (id.).

We recognize that in the foregoing cases, the appellate courts were upholding findings rather than reversing them. However, it is important to recognize that this was because they were applying the presumption, not simply deferring to the factfinders’ conclusions. Here, even giving appropriate deference to the trial court’s findings, and recognizing its advantage of having seen the witnesses—a limited advantage when related to plaintiff, since, as indicated, we would in any case question her credibility based upon her pecuniary interest in the outcome—we must come to an opposite conclusion. This Court has not only the authority but the responsibility to review the evidence to determine whether the judgment is warranted by the established facts (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]). Because the evidence supplies a logical basis for alternative reasonable conclusions, such as the possibility that Mr. Green took an overdose of his medications by mistake, not with the intention of killing himself, the evidence failed as a matter of law to overcome the presumption against suicide.

If the standard of review was merely whether a fair interpretation of the evidence in the record supported the inference drawn by the trial court, our analysis would change. However, the strong presumption against a finding of suicide unless that is the only conclusion that may reasonably be drawn changes the applicable analysis, and requires a reversal here. The record fails to support the court’s ultimate finding that the only available reasonable inference is that Mr. Green committed suicide. Therefore, the presumption against suicide required, as a matter of law, a result in favor of plaintiff.

Accordingly, the judgment of the Supreme Court, New York County (Harold Beeler, J.), entered June 29, 2006, dismissing the complaint after a nonjury trial, should be reversed, on the law, without costs, and plaintiff awarded the principal amount of $500,000, plus statutory interest from the date of the insured’s death. The Clerk is directed to enter judgment accordingly.