1
2                Opinions of the Colorado Supreme Court are available to the
3            public and can be accessed through the Judicial Branch’s homepage at
4              http://www.courts.state.co.us. Opinions are also posted on the
5              Colorado Bar Association’s homepage at http://www.cobar.org.
6
7                                                         ADVANCE SHEET HEADNOTE
8                                                                        June 4, 2018
9
0                                            2018 CO 49
1
2   No. 17SA64, Renfandt v. New York Life Insurance Company—Life insurance
3   policies—Suicide exclusion clauses.
4
5          In this opinion, the Colorado Supreme Court answers a question of state law

6   certified by the United States District Court for the District of Colorado. The question

7   asks us to interpret the meaning of the words “suicide, sane or insane,” when used in

8   life insurance policies.   The Colorado Supreme Court concludes that, under Colorado

9   law, a life insurance policy exclusion for “suicide, sane or insane” excludes coverage

0   only if the insured, whether sane or insane at the time, committed an act of

1   self-destruction with the intent to kill himself.

2
1
2
3                       The Supreme Court of the State of Colorado
4                       2 East 14th Avenue • Denver, Colorado 80203
5
6                                         2018 CO 49
7
8                            Supreme Court Case No. 17SA64
9                               Certification of Question of Law
0                  United States District Court for the District of Colorado
1                             Case No. 16CV01812-MSK-GPG
2
3                                          Plaintiff:
4
5                                    Melissa Kay Renfandt,
6
7                                              v.
8
9                                         Defendant:
0
1                              New York Life Insurance Company.
2
3
4                                Certified Question Answered
5                                           en banc
6                                         June 4, 2018
7
8
9
0   Attorneys for Plaintiff:
1   Keating Wagner Polidori Free, P.C.
2   Zachary C. Warzel
3   Daniel A. Wartell
4   Lidiana Rios
5   Ross W. Pulkrabek
6         Denver, Colorado
7
8   Attorneys for Defendant:
9   Hall & Evans, L.L.C.
0   Kevin E. O’Brien
1   Gillian Dale
2          Denver, Colorado
3
1   Attorneys for Amicus Curiae Colorado Trial Lawyers Association:
2   McDermott Law, LLC
3   Timothy M. Garvey
4         Denver, Colorado
5
6   Attorneys for Amicus Curiae American Council of Life Insurers:
7   Squire Patton Boggs (US) LLP
8   Aaron A. Boschee
9          Denver, Colorado
0
1   Squire Patton Boggs (US) LLP
2   Mary Jo Hudson
3   Holly W. Wallinger
4   Nicholas P. Zalany
5          Columbus, Ohio
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1   JUSTICE MÁRQUEZ delivered the Opinion of the Court.




                                            2
¶1     While appearing to be in a “zombie-like” state from a combination of

prescription medication, alcohol, and marijuana, Mark Renfandt shot himself in the

head and died.     When Mark’s wife tried to collect life insurance benefits under a

temporary coverage agreement issued by New York Life Insurance Company, the

insurer denied the claim, citing a provision in the agreement that excluded coverage for

“suicide . . . while sane or insane.”

¶2      Mark’s wife sued New York Life in state court, asserting breach of contract and

other claims. She argues that Mark’s death was not a suicide because the combination

of substances that Mark ingested rendered him so intoxicated that he was unable to act

volitionally or form suicidal intent when he shot himself. Thus, she contends, the

policy’s suicide exclusion does not apply to Mark’s death.

¶3     New York Life removed the case to federal court and moved to dismiss the

complaint. It maintains that the term “suicide” must be read in conjunction with the

phrase “sane or insane,” and that this additional language in the agreement was meant

to remove any inquiry into whether the decedent intended to kill himself.

¶4     The United States District Court for the District of Colorado determined that the

meaning of “suicide . . . while sane or insane” is unclear under Colorado law, and

certified the question to this court under C.A.R. 21.1:

       Under Colorado law, does a life insurance policy’s exclusion for “suicide,
       sane or insane” exclude coverage (1) for all acts of self-destruction without
       regard to the insured’s intent or understanding of the nature and
       consequences of his/her actions or (2) for only acts of self-destruction
       committed when the insured intends to take his/her own life or
       understands the nature and consequences of his/her actions?



                                             3
¶5        The meaning of the term “suicide” in the context of an insurance policy

exclusion—and how to construe such an exclusion when the term “suicide” is modified

by the words “sane or insane”—are questions that have divided English and American

courts since the early nineteenth century. Several American courts have held that the

phrase “suicide, sane or insane” refers to acts of self-destruction regardless of whether

the decedent understood the physical nature or consequences of his act or had a

conscious purpose to take his life—in other words, regardless of whether the decedent

acted with an intent to kill himself. Others have concluded that, for a death to be

considered a suicide, the decedent must have intended to kill himself, and that the

additional words “sane or insane” do not negate the essential requirement of suicidal

intent.

¶6        This disagreement appears to stem from different concepts of the term “suicide.”

Some courts conceive of “suicide” broadly to mean any act of self-destruction. Others

treat “suicide” as a concept that requires the decedent to be aware of the physical nature

and consequences of his act, and to intend to kill himself. Under this view, “suicide” is

limited to acts of intentional self-destruction; it is the deliberate termination of one’s

existence.

¶7        This court has sided with the latter view, indicating in Lockwood v. Travelers

Insurance Co., 498 P.2d 947, 951 (Colo. 1972), that suicide requires both a voluntary act

(in that case, consciously pulling a trigger) and suicidal intent (i.e., an intent to cause

one’s own death). Today, we reaffirm this view of the term “suicide” and conclude that

the additional words “sane or insane” do not negate the requirement that the “suicide”


                                              4
be an act of self-destruction taken with the intent to cause one’s own death. Thus, we

answer the certified question: under Colorado law, a life insurance policy exclusion for

“suicide, sane or insane” excludes coverage only if the insured, whether sane or insane

at the time, committed an act of self-destruction with the intent to kill himself.

                     I.     Facts and Procedural History

¶8     The complaint alleges the following facts. Mark and Melissa (“Missy”) Renfandt

married in August 2014. The couple began the process of adopting a child, and in late

November 2014, Mark applied for a life insurance policy with New York Life Insurance

Company, naming Missy as the beneficiary.           New York Life issued a temporary

coverage agreement that insured Mark’s life while the insurer considered his

application. The agreement contained a provision excluding coverage for “suicide or

intentionally self-inflicted injury . . . while sane or insane.”     One month later, on

December 22, 2014, Mark died from a self-inflicted gunshot wound.

¶9     On the morning of his death, Mark took Tamiflu, per his doctor’s instructions,

and drove to work. (Mark also regularly took Diazepam, which he was prescribed for

general anxiety, and Prilosec, an over-the-counter medication for heartburn.) After

work, Mark and his employees celebrated the promotion of a project manager at the

company. Mark had too much to drink, and had to be driven home.

¶10    Thirty minutes to an hour after Mark arrived home, Missy went downstairs to

check on Mark and found him face down on the kitchen floor. Missy helped Mark onto

a couch, and she returned to their upstairs bedroom. A short while later, Missy heard a




                                             5
thump and went downstairs, where she found Mark had fallen partly off the couch.

Missy helped him back onto the couch, and she again retreated to their bedroom.

¶11   About half an hour later, Missy heard the door open from the kitchen to the

garage, where Mark stored his edible marijuana products. Missy came back downstairs

and found Mark “sleepwalking, zombie-like, with a blank, glazed-over look in his

eyes.” Mark was unresponsive. Missy put Mark back onto the couch, and she returned,

once more, to their bedroom.

¶12   Later that night, Missy awoke, sensing her husband’s presence in the bedroom.

Missy saw Mark open the drawer where they kept a loaded handgun. Mark dangled

the gun in his left hand and said nothing; instead, he “stared blankly ahead, completely

unresponsive and appearing to be in a sleepwalking state, unaware of his surroundings

or his actions.” Missy, believing Mark to be sleepwalking and not wanting to startle

him, slowly moved toward him to take the gun away. But the gun fired, shooting Mark

in the head and killing him.

¶13   The coroner’s death certificate listed the manner of Mark’s death as “suicide.” A

toxicology report showed that Mark’s blood alcohol concentration (“BAC”) was

0.325%.1 The report contained an annotation stating, “BAC: coma, alcohol poisoning.”


1 According to the National Institute of Health, a BAC between 0.31% and 0.45% is
considered “life threatening,” and can cause “loss of consciousness, danger of life-
threatening alcohol poisoning, [and] significant risk of death in most drinkers due to
suppression of vital life functions.” Compl. at ¶ 26 (citing National Institute on Alcohol
Abuse and Alcoholism, “Alcohol Overdose: The Dangers of Drinking too Much,”
https://pubs.niaaa.nih.gov/publications/AlcoholOverdoseFactsheet/Overdosefact.ht
m).



                                            6
The report also showed that Mark had clonazepam and marijuana in his system at the

time of his death. The toxicologist did not test for Tamiflu.

¶14    Nine months after Mark’s death, Missy submitted a claim for benefits under

Mark’s temporary coverage agreement with New York Life. New York Life denied the

claim because “[a]ccording to the death certificate, police report, and coroner’s report,”

Mark had committed suicide, and the agreement did not cover “suicide or intentionally

self-inflicted injury . . . while sane or insane.”

¶15    Missy filed a complaint against New York Life in Garfield County district court,

asserting claims for breach of contract, breach of duty of good faith and fair dealing,

and unjust enrichment. The insurer removed the case to federal district court and

moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim. The federal district court denied the motion without prejudice

and certified the following question of law to this court:

       Under Colorado law, does a life insurance policy’s exclusion for “suicide,
       sane or insane” exclude coverage (1) for all acts of self-destruction without
       regard to the insured’s intent or understanding of the nature and
       consequences of his/her actions or (2) for only acts of self-destruction
       committed when the insured intends to take his/her own life or
       understands the nature and consequences of his/her actions?

¶16    We accepted jurisdiction, as authorized by C.A.R. 21.1.

                                         II. Analysis

¶17    We are asked to determine the meaning, under Colorado law, of a provision in a

life insurance policy excluding coverage for “suicide . . . while sane or insane.” We first

discuss relevant principles of interpretation governing insurance policies before turning




                                                7
to the policy at issue here. To determine the meaning of a life insurance provision

excluding coverage for “suicide, sane or insane,” we consider the origins of the term

“suicide” and the disagreement over its meaning in the insurance context, and we trace

the debate that ensued when insurers began to add the words “sane or insane” to policy

exclusions for suicide. We conclude that, in Colorado, the phrase “sane or insane” does

not alter the requirement that the “suicide” be an act of self-destruction taken with

intent to cause one’s own death. Thus, under Colorado law, a life insurance policy

exclusion for “suicide, sane or insane” excludes coverage only if the insured, whether

sane or insane at the time, committed an act of self-destruction with the intent to kill

himself.

             A. Principles Governing Insurance Policy Interpretation

¶18    A life insurance policy is a contract, the interpretation of which is a matter of law

that we review de novo. Cary v. United of Omaha Life Ins. Co., 108 P.3d 288, 290 (Colo.

2005). As with any contract, we construe its terms to promote the parties’ intent. Id.

Where general language in an insurance contract is ambiguous, we construe it against

the insurer. See Thompson v. Md. Cas. Co., 84 P.3d 496, 501 (Colo. 2004). Where the

language is undefined, we interpret it according to its plain meaning.          Id.   When

determining the plain and ordinary meaning of words, we may consider definitions in a

recognized dictionary. Hecla Mining Co. v. N.H. Ins. Co., 811 P.2d 1083, 1090 (Colo.

1991). Finally, when seeking to avoid coverage based on a policy exclusion, the insurer

must establish that the exclusion applies in the case, and that the exclusion is not subject

to any other reasonable interpretation. See id.


                                             8
                B. Felonious Suicide under English Common Law

¶19    At common law in England, suicide was a “peculiar species of felony.”              4

William Blackstone, Commentaries on the Law of England 189 (1769).                   It was

considered “self murder,” and a person who committed suicide was a “felo de se”—a

felon against himself. Id. at 188–89.2 To be a felo de se, the decedent must have

“deliberately put[ ] an end to his own existence” and have been “compos mentis”—of

sound mind. Id. at 189. In other words, “in order to make the act committed by him

amount to suicide,” the decedent must have been “a responsible moral agent at the time

of his death.” Schwabe v. Clift (1845) 175 Eng. Rep. 56, 57; 2 Car. & K. 134, 137.

¶20    Under English common law, a person who could not, due to some affliction,

distinguish between “good and evil” or “right from wrong” was considered “non

compos mentis.” See Borradaile v. Hunter (1843) 134 Eng. Rep. 715, 728; 5 Man. & G.

638, 669 (Tindal, J.) (recognizing that whether a person was “capable of judging

between right and wrong . . . is the test that is frequently applied to the determination

of the question” of whether a person was “compos mentis” or not). Persons who were

“under a natural disability of distinguishing between good and evil,” including

“Lunaticks,” were “not punishable by any criminal prosecution whatsoever.” 1 W.

Hawkins, A Treatise of the Pleas of the Crown 2 (London, Eliz. Nutt and R. Gosling,

1721). Thus, in the case of madness, an act of self-destruction could be “subject to no

2 Because such a felon had, through his death, removed himself from the reach of the
law, the punishment was taken out on his reputation and fortune, through
“ignominious burial in the highway, with a stake driven through [the decedent’s]
body” and “forfeiture of all his goods and chattels to the king.” Id. at 190.



                                             9
imputation of guilt” because such a man was deemed “under no moral guidance.”

Charles Moore, A Full Inquiry into the Subject of Suicide 4 (London, J.F. and C.

Rivington, 1790).

¶21    In short, for a person to commit felonious “suicide” under English common law,

he must have deliberately ended his life and have understood the moral character of his

act of self-destruction.

                      C. “Suicide” Exclusions – English Courts

¶22     In the nineteenth century, life insurance providers began to add suicide clauses

to policies.   These clauses typically rendered the policy void if the insured killed

himself. The question soon arose whether these provisions for “suicide” (or analogous

references to acts of self-destruction) encompassed all acts of intentional self-destruction

or instead were limited to acts of felonious suicide—and thus required the insured to

have understood the moral character of his act. English courts grappled with this issue

in two leading decisions, Borradaile v. Hunter, and Clift v. Schwabe.

¶23     In Borradaile v. Hunter (1843) 134 Eng. Rep. 715, 722; 5 Man. & G. 639, 653, the

insured threw himself into the river Thames and drowned. The insurance company

denied payment under the decedent’s life insurance policy, relying on a provision

deeming the policy void if the insured should “die by his own hand or by the hands of

justice, or in consequence of a duel.” Id. at 725; 5 Man. & G. at 661. The estate of the

decedent sued. After a trial, the jury found that “Mr. Borradaile voluntarily threw

himself from the bridge with the intention of destroying life; but at the time of

committing the act, he was not capable of judging between right and wrong.” Id. at


                                            10
717; 5 Man. & G. at 643. The trial court entered judgment for the insurance company.

Id.; 5 Man. & G. at 643.

¶24     The Court of Common Pleas allowed the ruling for the insurance company to

stand. Because the jury verdict amounted to a finding that the insured was non compos

mentis at the time he killed himself, all agreed that the decedent would not be culpable

if this were a question of crime. Id. at 721; 5 Man. & G. at 651–52. The dispute centered

on the meaning of the term “die by his own hand,” and whether the decedent’s

intentional act of self-destruction voided the policy if he was “insane” at the time and

thus was “incapable of distinguishing right from wrong.” Id. at 718; 5 Man. & G. at 645.

¶25    Justice Thomas Erskine, among the majority, reasoned that the insurance

company used the phrase “die by his own hand” specifically to avoid importing a

criminal notion of self-destruction inherent in the term “suicide.” See id. at 724–25; 5

Man. & G. at 660–61. He concluded that the policy required only that “the act of

self-destruction should be the voluntary and willful act of a man having at the time

sufficient powers of mind and reason to understand the physical nature and

consequences of such act, and having at the time a purpose and intention to cause his

own death by that act.” Id. at 723–24; 5 Man. & G. at 657–58. The decedent’s ability to

understand “the moral nature and quality of his purpose” was not relevant to the

inquiry. Id.; 5 Man. & G. at 658.

¶26     Chief Justice Nicholas Tindal disagreed, arguing that because the phrase “die

by his own hand” was synonymous with the term “suicide”—that is, criminal suicide—

”the insurers intended by the proviso to confine their exemption from liability to the


                                           11
case of a felonious suicide only.” Id. at 728; 5 Man. & G. at 669. In this case, Chief

Justice Tindal reasoned, the decedent had not truly “die[d] by his own hand” because

“the result of the finding of the jury is that the assured killed himself intentionally, but

not feloniously.” Id. at 727; 5 Man. & G. at 667 (emphasis added).

¶27     A few years later, a different English court addressed a provision that deemed a

policy void if the insured “commit[ted] suicide.” Clift v. Schwabe (1846) 136 Eng. Rep.

175, 179; 3 C.B. 437, 447.     In that case, the insured killed himself by swallowing

sulphuric acid, but under circumstances tending to show he was of unsound mind at

the time. Id. at 178; 3 C.B. at 446. The trial judge reasoned that for the insured’s

intentional act of self-destruction to be suicide, “it must appear that the deceased was a

responsible moral agent at the time of his death,” and instructed the jury accordingly.

Schwabe v. Clift (1845) 175 Eng. Rep. 56, 57; 2 Car. & K. 134, 137. The jury returned a

verdict for the decedent, but the Exchequer Chamber reversed.3 See 136 Eng. Rep. at

192; 3 C.B. at 480.

¶28    Similar to Borradaile, Clift hinged on whether the phrase “shall commit suicide,”

as used in the policy, merely required that the decedent “intentionally kill himself,” or

instead referred to a criminal act of suicide, that is, an intentional act of self-destruction

under circumstances that would make the decedent a “felo de se.” Id. at 184; 3 C.B. at

461. Baron Robert Rolfe, among the majority, reasoned that “suicide” refers to “every

3The Court of Exchequer Chamber was akin to a “super-en banc court including all of
England’s judicial officers,” Hart v. Massanari, 266 F.3d 1155, 1165 n.13 (9th Cir. 2001),
and heard appeals from the common law courts of record, see Court of Exchequer
Chamber, Black’s Law Dictionary (10th ed. 2014).



                                             12
act of self destruction,” “provided it be the intentional act of a party knowing the

probable consequence of what he is about.” Id. at 185; 3 C.B. at 464.

¶29     Chief Baron Frederick Pollock disagreed. After tracing the origin of the word

“suicide” in early English sources, he reasoned that “the word has never been used by

law writers, except in the sense of a criminal taking away of one’s own life.” Id. at 190;

3 C.B. at 476.    Accordingly, he concluded, the term “suicide” in the policy meant

criminal suicide. See id. at 191; 3 C.B. at 478.

¶30    In sum, the majority of judges in both Borradaile and Clift rejected a criminal law

definition of “suicide” in the context of life insurance policies.          Both majorities

concluded that to void the policy, the decedent must have committed an intentional act

of self-destruction, but he need not have understood its moral character.

                 D. “Suicide” Exclusions - Early American Courts

¶31    The disagreement over the interpretation of life insurance policy exclusions for

“suicide” and analogous references to acts of self-destruction carried over to this side of

the Atlantic. By the late nineteenth century, there was a conflict of opinion:

       those on one side maintaining that the policy would be avoided if the
       assured, at the time of causing his own death, was conscious of the
       physical nature and consequences of his act, and intended thereby to put
       an end to his own life, and those on the other side maintaining that the
       policy would not be avoided unless the insured were also conscious of the
       moral quality or criminality of such act.

Adkins v. Columbia Life Ins. Co., 70 Mo. 27, 30 (1879) (emphases added).

¶32     Some American courts followed the Borradaile and Clift majorities, reasoning

that an act of self-destruction voids coverage so long as the decedent understood the



                                              13
nature of his act and thereby intended to take his own life. In Dean v. American Mutual

Life Insurance Co., 86 Mass. (4 Allen) 96, 98 (1862), for example, the Supreme Judicial

Court of Massachusetts examined a policy, like in Borradaile, that voided coverage if

the insured “die[d] by his own hand.”        The court reasoned that this phrase was

“sufficiently broad to include every act of self-destruction, however caused, without

regard to the moral condition of the mind of the assured, or his legal responsibility for

his acts.” Id. Thus, it held, the policy was voided even if the insured ended his life

while “insane, entirely incapable of distinguishing between right and wrong, and

without any just sense of moral responsibility,” provided that he “retain[ed] sufficient

powers of mind and reason to act with premeditation, to understand and contemplate

the nature and consequences of his own conduct, and to intend the result which his acts

are calculated to produce.” Id. at 100.

¶33     Other early American courts interpreted such exclusions to refer to criminal

acts of self-destruction, and thus, to require a decedent to be morally responsible by

being mentally capable of discerning between right and wrong. See, e.g., Eastabrook v.

Union Mut. Life Ins. Co., 54 Me. 224, 228 (1866) (interpreting the phrase “die by his own

hand” to refer to felonious death, or felo de se, requiring moral blame); Phadenhauer v.

Germania Life Ins. Co., 54 Tenn. (7 Heisk.) 567, 576 (1872) (interpreting an exclusion for

“suicide” to require a decedent to “understand the moral nature of the act of

self-destruction,” such that “if he is incapable of distinguishing between right and

wrong,” his act is not a suicide); Life Ass’n of Am. v. Waller, 57 Ga. 533, 537 (1876) (“In

suicide, proper, there must be a moral element, and the presence of that depends upon


                                            14
whether the man is so far rational as to be able to discern the difference between right

and wrong.”).

¶34    The U.S. Supreme Court followed this latter approach in Mutual Life Insurance

Company v. Terry, 82 U.S. (15 Wall.) 580, 590–91 (1873). There, the life insurance policy

contained a provision deeming the policy void if the insured “shall die by his own

hand.” After reviewing the decisions in Borradaile, Clift, and conflicting decisions

emanating from American courts, the Supreme Court ultimately adopted a rule that

encompassed criminal law principles, and held that this provision4 does not apply if the

death occurs when the insured’s “reasoning faculties are so far impaired that he is not

able to understand the moral character, the general nature, consequences, and effect” of

his act of intentional self-destruction. Id. at 591.

¶35    Two points are worth noting. First, despite the disagreement over whether

“suicide” as used in these policies referred to criminal acts of self-destruction requiring

moral culpability, courts uniformly agreed that “suicide” requires a voluntary and

intentional act of self-destruction.     Second, the Supreme Court recognized that a

person’s “unsoundness of mind” can impact whether an act of self-destruction is

“suicide” (1) by preventing him from understanding the moral nature of his act of

self-destruction (even if he understands the physical nature of his act and intends to

cause his death); (2) by rendering him unable to understand even the physical nature

and consequences of his act such that he lacks the intent to kill himself; or (3) by

4 For purposes of its analysis, the Court saw no difference between the expressions
“commit suicide, take his own life, or die by his own hands.” Id. at 591.



                                              15
creating in him an irresistible impulse compelling him to kill himself, thus making the

act involuntary. See Accident Ins. Co. v. Crandal, 120 U.S. 527, 531–33 (1887); Terry, 82

U.S. at 590–91.

                            E. “Suicide, sane or insane”

¶36    In response to decisions refusing to enforce suicide exclusions where the insured

was insane at the time of his death, insurance companies began to add the words “sane

or insane” and “feloniously or otherwise” to these exclusions. Bigelow v. Berkshire Life

Ins. Co., 93 U.S. 284, 287 (1876).   Courts soon disagreed about the effect of these

additional words.

¶37    On one side, the New York Court of Appeals held that the addition of the words

“sane or insane” meant that the policy is voided “if death ensues from any physical

movement of the hand or body of the assured proceeding from a partial or total eclipse

of the mind.” De Gogorza v. Knickerbocker Life Ins. Co., 65 N.Y. 232, 241, 242 (1875).

Thus, if a “totally insane man blows his brains out with a pistol,” he will have “died by

his own hand” under the policy and can never recover unless his death was the “result

of pure accident.” Id.

¶38    The dissent in De Gogorza maintained that some insane persons “can form

intentions and act upon them” though unable “to distinguish between right and

wrong,” while others “cannot form intentions, are unconscious of the physical

consequences of their acts, cannot control their actions, and . . . act from irresistible

impulse; such persons can no more be said to act than an automaton.” Id. at 244 (Earl,

J., dissenting). The dissent thus construed the words “sane or insane” to mean that the


                                           16
provision applied to “every case of voluntary intentional self-destruction . . . whether

the assured was sane or insane,” but did not apply to a case “where the act of

self-destruction was not voluntary or intentional.” Id. at 249.

¶39    Since 1875, many courts have adopted an approach similar to the majority in De

Gogorza, holding that, for an insurer to avoid liability for death by self-destruction,

while “sane or insane,” it is “not necessary for the insured to realize the physical nature

or consequence of his act or to form a conscious purpose to take his life.” Atkinson v.

Life Ins. Co. of Va., 228 S.E.2d 117, 120 (Va. 1976). In other words:

       If the act of self-destruction would be regarded as suicide in the case of a
       sane person, it would be so treated as to an insane insured, regardless of
       whether the insured decedent realized or was capable of realizing that
       such act would cause his death or whether he was capable of entertaining
       an intention to kill himself.

Id.; see also Nielsen v. Provident Life & Acc. Ins. Co., 596 P.2d 95, 97–98 (1979). This

rule has been labeled the “majority view.” Nielsen, 596 P.2d at 98.5

¶40    Meanwhile, the U.S. Supreme Court and several states adopted the so-called

minority rule. In Bigelow v. Berkshire Life Ins. Co., 93 U.S. 284, 286 (1876), the Supreme

Court noted that its earlier decision in Terry construed the phrase “die by his own

hand” to refer to an act of criminal self-destruction, and thus did not apply to an insane

person who took his life. The Court understood the insurer’s addition of the words

“sane or insane” as an effort to “avoid altogether this class of risks.” Id. Yet the Court


5 See also, e.g., U.S. Fid. & Guar. Co. v. Blum, 258 F. 897, 901 (9th Cir. 1919); Scarth v.
Sec. Mut. Life Soc., 39 N.W. 658, 660 (Iowa 1888); Aetna Life Ins. Co. v. McLaughlin, 380
S.W.2d 101, 105–06 (Tex. 1964).



                                             17
construed the words “sane or insane” only to remove any inquiry into whether the

decedent understood the moral nature of his act. See id. at 287–88. Notably, the Court

still required that the act of self-destruction be intentional: “Nothing can be clearer than

that the words, ‘sane or insane,’ were introduced for the purpose of excepting from the

operation of the policy any intended self-destruction, whether the insured was of sound

mind or in a state of insanity.” Id. at 287 (emphasis added); see also id. (reasoning that

this language informed the policy holder that the company would not be liable “if he

purposely destroyed his own life”). Thus, the Court reasoned, the policy was void “if

the insured was conscious of the physical nature of his act, and intended by it to cause

his death, although, at the time, he was incapable of judging between right and wrong,

and of understanding the moral consequences of what he was doing.” Id. (emphases

added). Applying that construction to the facts of the case, the Court observed that the

decedent “knew that he was taking his own life, and showed sufficient intelligence to

employ a loaded pistol to accomplish his purpose; . . . [h]is darkened mind did not

enable him to see or appreciate the moral character of his act, but still left him capacity

enough to understand its physical nature and consequences.” Id.

¶41    Other courts similarly have concluded that the addition of the phrase “sane or

insane” does not eliminate the requirement that the decedent act with the intent to kill

himself. In Searle v. Allstate Life Ins. Co., 696 P.2d 1308, 1315 (Cal. 1985), for example,

the California Supreme Court held that ‘‘[a] proper interpretation of the clause is that it

exempts the insurance company from liability only if the insured, whether sane or

insane at the time, committed the act of self-destruction with suicidal intent.” Thus, “if


                                            18
the insured did not understand the physical nature and consequences of the act,

whether sane or insane, then he did not intentionally kill himself.” Id. at 1317. On the

other hand, the court emphasized, insanity does not necessarily negate suicidal intent.

See id. at 1318.     Proof, for example, that the decedent killed himself under the

compulsion of an irresistible impulse would establish that self-destruction was the

intended result, albeit by a deranged mind. Id.

¶42    The so-called minority approach adopts the view that a policy exclusion for

“suicide, sane or insane” still requires a “suicide.” In other words, a decedent’s insanity

does not, under the minority approach, eliminate the requirement that the decedent act

with intent to end his life.

                               F. Colorado’s Approach

¶43    In 1903, the Colorado General Assembly enacted a statute addressing suicide

exclusions in life insurance policies, now codified at section 10-7-109, C.R.S. (2017). See

Ch. 119, 1903 Colo. Sess. Laws 257, 257. As originally enacted, the statute prohibited life

insurance companies from denying payment on a life insurance policy based on the

suicide of the policyholder, “whether said suicide was voluntary or involuntary, and

whether said policyholder was sane or insane.” Head Camp Pac. Jur., Woodmen of the

World v. Sloss, 112 P. 49, 50 (Colo. 1910). This court held that the statute was “capable

of but one rational construction, namely, that it was the intent and purpose of the

Legislature to prevent all companies, of whatsoever kind or character, issuing life

insurance contracts, from escaping payment thereon, in the event of death, simply on

the ground that the insured committed suicide.” Id. The statute was later amended to


                                            19
apply only “after the first policy year,” see Aetna Life Ins. Co. v. Braukman, 70 F.2d 647,

648 (10th Cir. 1934), and was again amended in 1935 to state that it does not apply to

accidental death policies, see McCowan v. Equitable Life Assur. Soc. of U.S., 179 P.2d

275, 276 (Colo. 1947).

¶44    Section 10-7-109 does not bar the provision at issue here (which excludes

coverage for “suicide . . . while sane or insane”) because the agreement was in effect less

than one year when Mark died. Nevertheless, the statute reflects a longstanding public

policy in Colorado that disfavors suicide exclusions.

¶45    We conclude that, in Colorado, a policy exclusion for “suicide . . . while sane or

insane” still requires an insurer to show that the insured’s death was a “suicide.” In

other words, an insurer must show that the decedent, while sane or insane, committed

an act of self-destruction with the intent to kill himself. We reach this conclusion for

several reasons.

¶46    First, the term “suicide” is commonly understood to mean an act of intentional

self-destruction; the deliberate termination of one’s existence.       See, e.g., Suicide,

Webster’s Third New International Dictionary (3d ed. 1961) (defining “suicide” as the

“the fact or an instance of taking one’s own life voluntarily and intentionally”); 9A

Steven Plitt et al., Couch on Ins. § 138:16 (3d ed. 2017) (“It is the ‘deliberate’ aspect,

combined with the ‘termination’ aspect which differentiates suicide from the variety of

voluntary acts in which people engage that present some risk to their lives, such as

skydiving, ‘racing trains,’ and ingesting dangerous drugs.”). Indeed, suicidal intent is

what distinguishes “suicide” from an accidental or unintentional death. (One who


                                            20
mistakenly ingests poison and dies, or who slips and falls from the edge of a cliff to his

death, has not committed suicide.)

¶47    This court has recognized that “suicide,” in the insurance context, requires the

intent to end one’s own life. In Lockwood, the insured held a life insurance policy with

a double indemnity provision for accidental death.         498 P.2d at 948.    The insured

became intoxicated and shot himself in the head. Id. at 949. The insurer refused to pay

the double indemnity, arguing that the insured had committed suicide, which was an

excepted risk under the accidental death provisions in the policy. Id. at 948. The issue

at trial was whether the plaintiff (the insured’s widow) had proven that the insured’s

death was an accident and thus eligible for double indemnity. See id. at 950. The trial

court rejected the insurer’s tendered jury instruction stating that if the jury found that

the deceased intentionally placed the gun to his head and fired the lethal shot, the jury

would, in effect, be required to find that the deceased committed suicide. Id. at 951.

We affirmed the trial court’s rejection of this instruction, concluding that “[t]his is not a

complete and therefore not an accurate statement of the law” because “[i]t omits any

reference to the deceased’s state of mind or intent at the time the gun went off.” Id.

(emphasis added). Our statement in Lockwood implicitly acknowledged that “suicide,”

by definition, requires an intent to end one’s life. We reaffirm that view today.

¶48    Second, we disagree with New York Life that the additional words “sane or

insane” renders a decedent’s suicidal intent irrelevant. This view erroneously conflates

insanity and intent. In past cases, we have drawn from concepts in criminal law to

discern the meaning of “insanity” for purposes of an insurance provision limiting


                                             21
coverage for self-inflicted injuries, “sane or insane.” In London Guarantee & Accident

Co. v. Officer, 242 P. 989, 991 (Colo. 1925), for example, we reasoned that a person is

“insane” (for purposes of the statute now codified at section 10-7-109) if he is “so

mentally diseased that he has no capacity to understand the nature of the act and no

ability to distinguish between right and wrong.” Our description of insanity in that

case comports with Colorado’s longstanding test of “insanity” in the criminal law

meaning “[a] person who is so diseased or defective in mind at the time of the

commission of the act as to be incapable of distinguishing right from wrong.” See

§ 16-8-101(1), C.R.S. (2017) (applicable to offenses committed before July 1, 1995);

§ 16-8-101.5(1), C.R.S. (2017) (same) (applicable to offenses committed on or after July 1,

1995). In 1995, the legislature modified the test for insanity to fold in the former

affirmative defense for “impaired mental condition.”6 Thus, under Colorado criminal

law, “insanity” now also refers to a condition of the mind caused by a mental disease or

defect that prevented the person from forming a culpable mental state that is an

essential element of a crime charged. See § 16-8-101.5(1)(b), C.R.S. (2017). But this does

not mean that the added words “sane or insane” in a policy exclusion for suicide render

a decedent’s suicidal intent irrelevant.



6 See § 16-8-101.3, C.R.S. (2017) (declaring that the legislative intent in enacting section
16-8-101.5 was to combine the defense of not guilty by reason of insanity and the
affirmative defense of impaired mental condition); see also § 16-8-102(2.7), C.R.S. (2017)
(defining “[i]mpaired mental condition” as “a condition of mind, caused by mental
disease or defect that prevents the person from forming the culpable mental state that is
an essential element of any crime charged”).



                                            22
¶49    Certainly, a person can be sane and commit an act of self-destruction, yet lack

intent to kill himself. For example, a sane person who, distracted by a text on his

phone, steps out into an intersection in front of an oncoming bus has no intent to kill

himself, although his act results in death. The same is true of a sane person who places

a gun to his head as a joke and pulls the trigger and dies, mistakenly believing the

weapon to be unloaded. It is also possible for a person to be insane, yet still act

intentionally to kill himself. For example, an insane person who deliberately throws

himself off a rooftop—because he imagines he is being pursued by aliens who will

torture him—still acts with intent to kill himself, even if his reason for doing so is

wholly delusional.

¶50    But to the extent that a person’s insanity can, in some cases, render him unable to

understand even the physical nature and consequences of his act—and thus negate his

intent to kill himself—such lack of intent means only that his act of self-destruction is

not, in fact, a “suicide.”     It does not change the requirement that his act of

self-destruction constitute a suicide for the exclusion to apply. Put differently, if the

insured—whether he was sane or insane—did not understand the physical nature and

consequences of the act, then he did not intentionally kill himself. In that event, there is

simply no “suicide.”

¶51    Third, our construction of the phrase “suicide . . . while sane or insane” comports

with the underlying purpose of the one-year provision in section 10-7-109, which is to

protect insurance companies from fraud by persons who purchase life insurance

policies when they intend to kill themselves. Cf. Ownbey v. Gen. United Life Ins. Co.,


                                            23
524 P.2d 636, 647 (Colo. App. 1974) (discussing similar Utah statute). Such provisions

protect insurers from a “risk” that lies wholly in the control of the insured. Couch on

Insur., § 138:15. To apply the exclusion to an individual who lacks suicidal intent is

inconsistent with the purpose of such provisions.

¶52   In sum, we conclude that, in Colorado, a policy exclusion for “suicide . . . while

sane or insane” still requires an insurer to show that the insured’s death was a

“suicide.” In other words, an insurer must show that the decedent, while sane or

insane, committed an act of self-destruction with the intent to kill himself.      Here,

Plaintiff concedes that if Mark committed suicide (that is, if he intentionally ended his

own life), the suicide exclusion bars coverage, regardless of whether he was sane or

insane. However, New York Life must first establish that there was a “suicide”—that

Mark intended to kill himself.7

                                   III. Conclusion

¶53   We conclude that, in Colorado, the phrase “sane or insane” does not alter the

requirement that the “suicide” be an act of self-destruction taken with intent to cause


7 We note that this case concerns not mental illness but intoxication. We further note
that under Colorado criminal law, “intoxication” and “insanity” are not the same thing.
See § 18-1-804(2), C.R.S. (2017) (“[i]ntoxication does not, in itself, constitute mental
disease or defect” for purposes of insanity); see also § 16-8-101.5(2)(b), C.R.S. (2017)
(“[m]ental disease or defect” includes “only those severely abnormal mental conditions
. . . that are not attributable to the voluntary ingestion of alcohol or any other
psychoactive substance”). That said, a criminal defendant may offer evidence of
intoxication when it is relevant to negate the element of specific intent. See § 18-1-
804(1), C.R.S. (2017). Here, the complaint alleges that the combination of prescription
medication, alcohol, and drugs that Mark ingested rendered him so severely intoxicated
that he was “unable to act volitionally or form suicidal intent.” Compl. ¶ 41.



                                           24
one’s own death. Thus, we answer the certified question: under Colorado law, a life

insurance policy exclusion for “suicide, sane or insane” excludes coverage only if the

insured, whether sane or insane at the time, committed an act of self-destruction with

the intent to kill himself.




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