                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-2118
                                   ___________

American Bankers Insurance              *
Company of Florida,                     *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of Minnesota.
Dinah Gilberts; Jane Anderson,          *
                                        *
             Appellants.                *
                                   ___________

                             Submitted: March 8, 1999

                                  Filed: June 8, 1999
                                   ___________

Before BEAM and HEANEY, Circuit Judges, and GOLDBERG,1 Judge of the United
      States Court of International Trade.
                                    ___________

BEAM, Circuit Judge.

     Dinah Gilberts and Jane Anderson appeal from the district court's grant of
summary judgment to American Bankers Insurance Company of Florida (American
Bankers). The district court held that their brother’s death resulting from autoerotic



      1
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
asphyxiation was caused by an intentional self-inflicted injury, and thus was not
covered by his group accident insurance policy. We reverse.

I.    BACKGROUND

       Gary Forst was found dead in the sleeper compartment of his parked semi-trailer
truck. One end of a rubber bungee cord was around his neck and the other attached to
the handle of a briefcase on a shelf above his head. His head and one shoulder had
slipped off the bunk. The parties agree that Gary Forst died as a result of autoerotic
asphyxia2 gone awry. Forst's sisters, Gilberts and Anderson, filed a claim on an
accident insurance policy issued by American Bankers. American Bankers filed a
declaratory judgment action seeking a determination that Forst’s death was not covered
by the policy.

       The district court granted summary judgment to American Bankers. It found that
Forst’s death was the result of an intentional, self-inflicted injury which was excluded
from coverage under the language of the policy and Minnesota law. Gilberts and
Anderson appeal.

II.   DISCUSSION

        Forst was covered by a group accident insurance policy issued by American
Bankers. The policy agrees to pay beneficiaries of the insured for, among other things,
death resulting from a covered injury. The policy defines "injury" as a "bodily injury
which is . . . caused by an accident." The policy also specifically excludes a loss which
results from "suicide or attempted suicide . . . or an intentional self-inflicted injury."



      2
       Autoerotic asphyxia involves reducing the amount of oxygen to the brain with
the purpose of enhancing the pleasure of masturbation or other autoerotic activities.

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Thus Forst's death would not be covered if either: (1) it was not accidental, or (2) it
resulted from an "intentional self-inflicted injury."

       In granting summary judgment to American Bankers, the district court stated that
it could not find, as a matter of law, that Forst’s death was not accidental. That ruling
is not disputed. The district court did, however, find that coverage was precluded by
the self-inflicted injury exclusion.

       To fall within an intentional act exclusion, it is not enough to merely show that
an actor intended the act which resulted in the injury. See Continental Western Ins. Co.
v. Toal, 244 N.W.2d 121, 124 (Minn. 1976) (citing Caspersen v. Webber, 213 N.W.2d
327 (Minn. 1973)). Under Minnesota law, an intentional act exclusion applies only
where the insured acts with a specific intent to cause bodily injury. See State Farm Fire
& Cas. Co. v. Wicka, 474 N.W.2d 324, 329 (Minn. 1991); Woida v. North Star Mut.
Ins. Co., 306 N.W.2d 570, 573 (Minn. 1981). The intent to injure can be shown by
evidence of actual subjective intent, or the intent may be inferred as a matter of law in
certain fact situations. See, e.g., Wicka, 474 N.W.2d at 329. Generally, intent may be
inferred as a matter of law only if the nature and circumstances of the act are such that
harm was substantially certain to result. See id. It is not disputed that Forst did not
intend to kill or injure himself, and that his subjective intent in limiting the flow of
oxygenated blood to his brain was simply to enhance his pleasure from masturbation.
Thus, Forst's intent to cause a self-inflicted injury may only be inferred if his act, as
intended, was "substantially certain" to cause a bodily injury.3 Therefore, we must




       3
        American Bankers argues that any harm that results from the act is enough to
infer intent to inflict bodily injury and trigger the self-inflicted injury exclusion. While
tempting, this argument fails. According to the plain language of the policy, the intent
which must be inferred is intent to cause a bodily injury, not merely any generalized
"harm." The two terms are not necessarily coextensive.

                                            -3-
examine the act of partial asphyxiation as it was intended by Forst to determine whether
bodily injury was substantially certain to result.

        The evidence presented to the district court showed that autoerotic asphyxiation
involves temporarily reducing the flow of oxygen to the brain, thus producing a
euphoric light-headedness. This can be achieved by either: (1) restricting the amount
of air entering the lungs, (2) restricting blood flow to the brain by applying pressure to
the arteries in the neck that supply blood to the head, or (3) by applying pressure to the
veins carrying blood out of the head. Forst used this third and most common method.
It requires less pressure on the neck, and essentially keeps blood from leaving the
brain, which continues to use oxygen until the oxygen in the blood is depleted enough
to give the desired euphoric effect.

        The evidence presented to date shows that the only substantially certain result
of Forst's intended act, when performed successfully, is a temporary change in blood
flow in the head, with the accompanying decrease of oxygen levels, causing light-
headedness. According to the summary judgment evidence, the act usually does not
leave visible marks on the neck. Forst's body exhibited burst blood vessels in the eyes
and marks around his neck caused by the strap. However, both experts agreed that the
damage Forst exhibited most likely occurred at death or post mortem. There was
essentially no evidence advanced for purposes of summary judgment (but there may be
at trial) that an individual's body is any different after the performance of partial
asphyxia in this manner than it was before, nor was there any evidence introduced that
the procedure involves pain of any kind. Since the evidence indicated that a change in
blood flow, with its decrease in oxygen level, is the only substantially certain result of
Forst's intended act, the proper inquiry then is whether this temporary change in blood
flow, of itself, constitutes a bodily injury.

      The district court held that Forst intentionally attempted "self-inflicted partial
strangulation, which no reasonable jury could conclude was not a self-inflicted injury

                                           -4-
under Minnesota law." We disagree. The policy itself defines injury as a bodily injury.
Terms in insurance policies are to be given the plain and ordinary meaning as would
be ascribed to them by a reasonable insured. See Farmers Home Mut. Ins. Co. v. Lill,
332 N.W.2d 635, 637 (Minn. 1983). We cannot say, as a matter of law, given the
evidence presented to date, that a reasonable insured would find that a temporary
decrease in the oxygen level in the brain, of itself, is a bodily injury in the ordinary
sense of the term.4 The two parties' expert witnesses are of course split on the question
of whether the change in blood flow, of itself, is an injury. However, it is not a
question for experts.

       The district court relied on the reasoning in Sigler v. Mutual Benefit Life Ins.
Co., 506 F. Supp. 542 (S.D. Iowa 1981), aff'd, 663 F.2d 49 (8th Cir. 1981). Sigler also
involved a death caused by autoerotic asphyxiation. The Sigler court concluded that
the victim's acts as intended resulted in injury because, had another person temporarily
restricted the victim's ability to breath, it would be considered an injury. See id. at 545.
The reliance is misplaced. While we do not question the conclusion that partial
strangulation is an injury under Iowa law, whether the act is committed by one's self or
another is irrelevant to whether the result of the act is a bodily injury in the ordinary
sense of the term under Minnesota law. Further, the policy at issue in Sigler precluded
coverage for "self inflicted injury of any kind" rather than the more specific "bodily
injury" at issue here.

III.   CONCLUSION


       4
        The district court also points out that Gilberts and Anderson conceded at oral
argument that "tissue damage results when one partially asphyxiates himself by putting
pressure on his neck." However, the mere de minimis existence of tissue damage will
not, as a matter of law, create a bodily injury in the ordinary sense of the term. The
loss of a few cells could easily be so minimal that it would not rise to the level of a
bodily injury as the average insured would understand the term.


                                            -5-
       Because we cannot say that, as a matter of law, the substantially certain result
of the insured's intended act constitutes a bodily injury as a reasonable insured would
understand the term, we reverse the district court's grant of summary judgment and
remand the case for further proceedings.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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