An insured that became paralyzed as a result of an infection contracted during unprotected sex was entitled to accidental disease benefits under his life insurance policy.
An insured became paralyzed as a result of an infection contracted during unprotected sex. He applied for accidental disease/dismemberment benefits under his life insurance policy. The insurer refused to pay the benefits on the basis that the insured's injuries were not the result of an accident that occurred without negligence. The insurer was ordered to pay the benefits on the basis that the insured could not foresee that he would become paralyzed as a result of unprotected sex.
Here is the citation: Gibbens v. Co-Operators Life Insurance Co.[2007] B.C.J. No. 1606, British Columbia Supreme Court, Cole J. July 19, 2007.
Here is a link to the cite
This case was originally summarized by Shanti Davies and edited by David Pilley.
The 45-year old male Insured suffered a permanent injury to his spinal cord with resulting paraplegia after being infected with Herpes Simplex Virus Type-2 ("HSV-2"). It was agreed for the purpose of the special case that the infection was likely caused by the Insured having unprotected sex with three women during the months of January and February 2003.
The Insured had obtained insurance coverage through his employer, which became effective on February 1, 2003. The policy provided benefits for accidental disease/dismemberment, including a $200,000 payment for paraplegia or loss of use of both legs "resulting directly and independently of all other causes from bodily injuries occasioned solely through external, violent and accidental means, without negligence on the Plaintiff’s part".
The issue for the Court was whether the Insured had sustained his paraplegia "directly and independently of all other causes" within the meaning of the policy. The Court reviewed case authority dealing with the word "accident" in an insurance policy and concluded, based on the reasoning in the recent Supreme Court of Canada decision of Martin v. American International Assurance Life Co., [2003] 1 S.C.R. 158, that the pivotal question was whether the Insured had expected to become a paraplegic as a result of having unprotected sex. Mr. Justice Cole held that the Insured did not expect to become a paraplegic as a result of having unprotected sex. His Lordship noted that while the Insured’s actions were foolish, the unexpected consequence of these actions was accidental. Accordingly, the Insured’s paraplegia was caused by "accidental means" within the meaning of policy and the Insurer was required to pay the Insured accident benefits in the amount of $200,000.
Of note, the Court rejected the Insurer’s argument that insurers in general would be unduly prejudiced if, in these circumstances, they had to provide compensation for insureds who recklessly engage in unprotected sex and become infected with sexually transmitted diseases. In response, the Court noted that it was open to the Insurer in drafting the policy to provide an explicit exclusion clause to exclude coverage for such cases.
