Is “Death by Cop” a Suicide for the Purposes of Insurance Coverage?

Justin Caldwell (Caldwell) took out two life insurance policies with the North American Company for Life and Health Insurance (North American).  Each policy provided for a $1 million death benefit; each had an identical suicide exclusion:

SUICIDE — If the Insured commits suicide, while sane or insane, within two years from the Policy Date, Our liability is limited to an amount equal to the total premiums paid.

Mr. Caldwell then committed “suicide by cop,” and so the issue before the Eleventh Circuit in North American Company for Life and Health Insurance v. Caldwell was whether “suicide by cop” is suicide within the meaning of the policy.  Plaintiffs argued that Justin’s death was not suicide; it was justified homicide.  They argued that suicide requires death by one’s own hand.  North American countered that suicide occurs when one intends to die and achieves that end; the method is irrelevant.   The trial court ruled for the plaintiffs; the Eleventh Circuit reversed.

The opinion comes from Chief Judge Pryor (left) and it embodies everything I hate about Gorsuchian textualism, which is to say, extreme, dictionary-based textualism divorced from context, logic, or tradition.  The opinion rests largely on dictionary definitions, which do not say anything useful about suicide by cop, and quotations taken out of context from one California Supreme Court opinion, Gulf Life Insurance Company v. Nash, a 6-5 Florida Supreme Court decision which, if anything, suggests that affirmation of the trial court would have been proper.

In Nash, the decedent killed himself by holding a pistol to his chest and firing it.  The first two pulls on the trigger resulted in only ineffectual clicks.  The third pull ended the man’s life.  Two insurance policies were at issue.  The accident policy paid a benefit if his death was a “result of bodily injury caused solely by external, violent and accidental means;” the life insurance policy excluded death by the insured’s “own hand or act.”  The case was about construing the language of those two policies and determining whether the facts suggested accidental death or suicide.

Back then, courts were capable of subtlety and nuance in their treatment of contractual language.  “The obligation of one policy and the condition of the other are not so closely related, or inseverable, that recovery should be allowed on both or neither.”  The quotation on which Judge Pryor relies runs as follows:  “the words death ‘by his own hand or act’ should not be construed literally, but to mean death as a result of an intent on the part of the insured to take his own life.”  But the Florida Supreme Court was unanimous in the view that the insurer in Nash had the burden to prove intent to commit suicide and had not done so.  It so concluded without recourse to dictionaries. Rather it looked at the behavior of the decedent in the hours before he fatally shot himself at point-blank range, in the chest.  

Six Justices concluded that Mr. Nash’s death, while not suicide, also was not accidental.  Five Justices dissented from the second holding.  The dissenting opinion’s conclusion is worth quoting here in its entirety.

The principle of law is firmly imbedded in the jurisprudence of this State that contracts of insurance should be construed most favorably to the insured. To draw such a fine distinction between the words “accident” and “accidental means” would do violence to this principle. It is a classic example of a distinction without a difference. As a practical matter, the average person buying accident insurance policies assumes that he is covered for any fortuitous and undesigned injury. The average man has no conception of the judicial niceties of the problem and even the most learned judge or lawyer, in attempting to understand and comprehend the niceties of the distinction, is left in a state of bewilderment and confusion.

When an insurance policy is ambiguous, the insured wins.  Is the undefined term “suicide” in the policy at issue in Caldwell ambiguous?

Let’s look at the context in which Mr. Caldwell died.  Here is the sequence of events on October 8, 2020, the day he died.  According to Judge Pryor’s opinion

• At 3 AM he Mr. Caldwell called his parents to say good-bye after learning that his wife wanted a divorce;
• He told his wife that he was “waiting for the police to come and kill [him]”; 
• Around 7 AM, his wife called 911 and reported that her husband was “suicidal,” that he was loading his weapons in the family garage, and that he “wanted to commit suicide by cop”; 
• When police arrived, his wife warned them that he “intended to start shooting until law enforcement shot him”; 
• After an attempt to de-escalate failed, officers fired rubber bullets at Mr. Caldwell; and
• When he ran towards his truck and picked up a rifle, they shot and killed him.

Judge Pryor notes that no precedent governs the opinion and yet he begins with his conclusion: “A death is a suicide when a person intentionally causes his own death.”  Citing absolutely nothing, Judge Pryor expounds the elements of suicide: “The requirements for a suicide are a person’s intent to die, his voluntary act on that intent, and his resultant death. The specific method is irrelevant.”  Judge Pryor then turns to dictionaries, most of which define suicide in terms of “taking one’s own life.”  Only two sources define “suicide by cop” as a form of suicide.  

Finally, Judge Pryor has recourse to one psychiatric publication, one newspaper article, and two cases that are actually relevant to the issue at hand, one from Florida court of appeals and one from the Fifth Circuit.  Why not start there and leave the dictionaries aside? In any case, common sense, Judge Pryor informs us, supports conflating “suicide” and “suicide by cop.”  

Does it?  Why do people commit “suicide by cop” when they could just shoot themselves?  Perhaps it has to do with a fear that they might lack the physical courage to actually kill themselves.  Or perhaps a man who has just learned that his wife wants to leave him wants to put on a good show so that everyone will know the extent of his despair.  And perhaps he is expecting that the police will act professionally and do everything in their power to actually prevent the outcome that the man professes to desire.  

Plaintiffs relied on a Maryland dictum that recognized that forcing someone else to kill you is not suicide but “justified homicide.”  Judge Pryor responds as follows:

After all, if a man threw himself before a train, nobody would argue that the conductor had committed homicide. Cf. Vantran Indus., Inc. v. Ryder Truck Rental, Inc., 890 So. 2d 421, 426 (Fla. Dist. Ct. App. 2004) (discussing the “act of committing suicide by jumping in front of a fifty-thousand pound tractor-trailer traveling at seventy miles per hour”).

What?  No.  Of course they wouldn’t.  But if that’s your best analogy, Judge Pryor, I’m afraid you are not persuasive.

In Caldwell, the police had options.  They did not have good options, but at a certain point, they chose to use deadly force.  Judge Pryor concedes as much when he notes, “Police officers are trained to, and have little choice but to, use deadly force to stop a civilian who threatens them, their fellow officers, and the public at large” (emphasis added).  In Vantran and in Judge Pryor’s train hypo, the driver/conductor makes no choice at all.  Suicide by throwing oneself in front of a large, fast-moving object is called suicide.  Suicide by cop is called “suicide by cop.”  

My common sense tells me that “suicide by cop” is not obviously “suicide.”  Arguably, if they were the same thing, there would not be two terms.  Plaintiffs have successfully established an ambiguity in North American’s policy.  Any Florida insurer, aware of the contra proferentem doctrine as recognized in Nash and innumerable other cases, would be wise to clarify that “suicide by cop” is included in its suicide exclusion.