Jorita PADFIELD, Plaintiff-Appellant, v. AIG LIFE INSURANCE COMPANY, a Corporation, Defendant-Appellee, 290 F.3d 1121

W. FLETCHER, Circuit Judge. This suit for recovery of benefits under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., arises from the death of appellant’s husband as a result of autoerotic asphyxiation. The insurer refused to pay benefits under an accidental injury and death insurance policy governed by ERISA. The district court held that the death was caused by an intentionally self-inflicted injury, and thus was not covered by the policy. We reverse. I. Facts The relevant facts are not in dispute.

On the evening of February 9, 1999, Gerald Alan Padfield told his wife he was going to the cleaners and drove away from his home in the family’s van. He never returned. Three days later, a California Highway Patrol trooper noticed the van parked on an empty street next to a vacant lot. When he approached the van, he discovered Mr. Padfield dead on the backseat floor. According to the coroner’s report, Mr. Padfield was found sitting in an upright position behind the front passenger seat with his back against the sliding door. He was naked from the waist down. One end of a necktie was tied around his neck.

The other end was tied to the sliding door hinge, which was located directly above him. The two back seats were folded down, and on top of them were numerous sexual devices and a backpack. Inside the backpack were pornographic materials and a small bottle containing a liquid later identified as Chlorohexanol, an industrial solvent. Another bottle of the liquid was nearby. Post-mortem tests found the industrial solvent in Mr. Padfield’s blood. The coroner reported that he found no trauma other than a deep ligature mark around the neck.

The report stated that the death appeared to be the “accidental” result of autoerotic asphyxiation. The death certificate listed the cause of death as “hanging.” Mr. Padfield’s wife, who had filed a missing person report when her husband had failed to return from the cleaners, said that there were no personal problems at home and that “everything appeared to be fine.” When notified of the circumstances surrounding her husband’s death, she told officers that she knew of her husband’s sexual devices but thought he had quit using them. Mrs.

Padfield, the appellant, was the beneficiary of an ERISA-governed accidental death insurance policy that covered Mr. Padfield. Appellee AIG Life Insurance Company (AIG) issued the policy as part of an employee benefits plan with Raytheon Systems Company, where Mr. Padfield worked. Mrs.

Padfield claimed benefits under the policy, listing the cause of death as “accidental death by hanging.” The policy provides for an “accidental death benefit” to be paid “[i]f Injury to the Insured Person results in death within 365 days of the date of the accident that caused the Injury.” “Injury” under the policy is defined as “bodily injury caused by an accident while this Policy is in force as to the person whose injury is the basis of the claim and resulting directly and independently of all other causes in a covered loss.” The policy also contains the following exclusion: This Policy does not cover any loss caused in whole or in part by, or resulting in whole or in part from, ... suicide or any attempt at suicide or intentionally self-inflicted injury or any attempt at intentionally self-inflicted injury.

AIG invoked this exclusion and rejected the claim. After pursuing an unsuccessful administrative appeal, Mrs. Padfield filed a complaint in the district court under ERISA, seeking benefits under the policy. Both parties filed motions for

summary judgment. The district court granted AIG’s motion and denied Mrs. Padfield’s motion. It held that Mr. Padfield’s death by au-toerotic asphyxiation fell outside the policy exclusion for suicide, but fell within the exclusion for death resulting from “intentionally self-inflicted injury.” Mrs. Pad-field appeals both the denial of her motion and the granting of AIG’s motion. II. Standard of Review and Applicable Legal Principles

Summary judgment is appropriate if the record discloses “that there is no genuine issue as to any material fact and that the moving party is entitled to judg: ment as a matter of law.” Fed.R.Civ.P. 56(c). Ordinarily, the denial of

summary judgment is not a final order and is thus unappealable. See Abend v. MCA, Inc., 863 F.2d 1465, 1482 n. 20 (9th Cir.1988). However, an order denying

summary judgment is reviewable when, as is the ease here, it is coupled with a grant of

summary judgment to the opposing party. Id.; see also United States v. Alameda Gateway Ltd., 213 F.3d 1161, 1164 (9th Cir.2000). We review both a denial and grant of

summary judgment de novo. See Alameda Gateway, 213 F.3d at 1164. A denial of benefits under an ERISA-governed plan is reviewed under a de novo standard “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); see also Ingram v. Martin Marietta Long Term Disability Income Plan, 244 F.3d 1109, 1112 (9th Cir.2001). It is undisputed that the plan at issue in this case does not give the administrator such discretion.

Thus, we review the administrator’s determination de novo. When faced with questions of insurance policy

interpretation under ERISA, federal courts apply federal common law. Firestone, 489 U.S. at 110, 109 S.Ct. 948; Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (holding that federal common law of ERISA preempts state law in the

interpretation of ERISA benefit plans). Under the federal common law of ERISA, we “interpret terms in ERISA insurance policies in an ordinary and popular sense as would a person of average intelligence and experience.” Babikian v. Paul Revere Life Ins. Co., 63 F.3d 837, 840 (9th Cir.1995) (internal quotations and citation omitted). As we develop federal common law to govern ERISA suits, we may “borrow from state law where appropriate, and [be] guided by the policies expressed in ERISA and other federal labor laws.” Id. (internal quotations and citation omitted). III.

Autoerotic Asphyxiation Autoerotic asphyxiation is “the practice of limiting the flow of oxygen to the brain during masturbation in an attempt to heighten sexual pleasure.” Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1450 (5th Cir.1995). The undisputed evidence indicates that Mr. Padfield engaged in the most common form of this behavior, in which the reduction in oxygen is achieved with the application of pressure to the veins carrying blood out of the head. See Am. Bankers Ins. Co. of Florida v. Gilberts, 181 F.3d 931, 933 (8th Cir.1999). This method requires minimal pressure on the neck.

It “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.” Id. The asphyxial state stimulates nerve centers in the brain, and produces a state of hypercapnia (an increase in carbon dioxide in the blood) and a concomitant state of hypoxia (a decrease in oxygen in the blood), all of which result in an increased intensity of sexual gratification. See Conn. Gen. Life Ins. Co. v. Tommie, 619 S.W.2d 199, 202 (Texas Ct.App.1981); Sims v. Monumental Gen. Life Ins. Co., 778 F.Supp. 325, 326 n. 1 (E.D.La.1991).

Industrial solvents like the one found near Mr. Padfield are also used to contribute to, or bring about, the same effect. See Bennett v. Am.

Int’l Life Assurance Co. of N.Y., 956 F.Supp. 201, 204 (N.D.N.Y.1997) (quoting the Diagnostic and Statistical Manual of the American Psychiatric Association Fourth Edition (DSM-IV), which describes the practice of autoerotic asphyxiation, or. “hypoxyphilia,” as involving “sexual arousal by oxygen deprivation obtained by means of chest compression, noose, ligature, plastic bag, mask, or chemical (often a volatile nitrate that produces a temporary decrease in brain oxygenation by peripheral vasodilation)”).

Autoerotic asphyxiation can result in death, as it did in this case. “Because of equipment malfunction, errors in the placement of the noose or ligature, or other mistakes, accidental deaths sometimes occur. Data from the United States, England, Australia, and Canada indicate that one to two hypoxyphilia — caused deaths per million population are detected and reported each year.” Id. (quoting DSM IV § 302.83, at 529).

But the “use of asphyxia to heighten sexual arousal more often than not [has] a nonfatal outcome.” Todd, 47 F.3d at 1457 (citing Hazelwood, Dietz & Burgess, Autoerotic Fatalities 49 (1983)); see also Tommie, 619 S.W.2d at 202; Kennedy v. Wash. Nat’l Ins. Co., 136 Wis.2d 425, 401 N.W.2d 842, 845 (App.1987). Autoerotic asphyxiation “is a repetitive pattern of behavior that individuals engage in over a period of years,” and generally “the intent of the individuals performing this act is not death.” Parker v. Danaher Corp., 851 F.Supp. 1287, 1290 (W.D.Ark.1994).

When performed successfully, the act results only in a temporary decrease in oxygen levels that causes light-headedness, and “usually does not leave visible marks on the neck.” Am. Bankers, 181 F.3d at 933. IV. Policy Exclusions The policy exclusion at issue here contains two separate exclusions — one for “suicide or any attempt at suicide” and one for “loss caused in whole or in part by, or resulting in whole or in part from ... intentionally self-inflicted injury or any attempt at intentionally self-inflicted injury.” We consider each in turn. A.

Exclusion for Suicide AIG argues that the policy’s suicide exclusion precludes recovery because death by hanging was a “natural and foreseeable consequence” of Mr. Padfield’s intentional act. It suggests that the behavior was “so reckless and so likely to result in death” that it is “necessary and appropriate to call the reasonableness of [Mr.

Padfield’s] expectation of ' survival into question.” Accordingly, AIG argues, the death was not an “accident.” The policy provides for an “Accidental Death Benefit” that is payable “if injury to the Insured Person results in death within 365 days of the date of the accident that caused the Injury” (emphasis added). Thus, if the death was not accidental, the policy is not even triggered, and it is unnecessary to examine the applicability of any exclusion.

Alternatively, AIG argues, because the death was not an accident, it was the “functional equivalent of suicide,” and therefore the suicide exclusion precludes the payment of benefits. We disagree. A death or injury may be “deemed ‘accidental’ under a group accidental insurance policy established under ERISA if the death [or injury] was unexpected or unintentional.” 10 Couch on Insurance § 139:16 (3d ed. 1995 & 2000 Supp.). In determining whether death, or the injury that caused death, was unexpected or unintentional, courts have undertaken an overlapping subjective and objective inquiry.

The court first asks whether the insured subjectively lacked an expectation of death or injury. See Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1088 (1st Cir.1990) (“Requiring an analysis from the perspective of the reasonable person in the shoes of the insured fulfills the axiom that accident should be judged from the perspective of the insured.”).

If so, the court asks whether the suppositions that underlay the insured’s expectation were reasonable, from the perspective of the insured, allowing the insured a great deal of latitude and taking into account the insured’s personal characteristics and experiences. See id. If the subjective expectation of the insured cannot be ascertained, the court asks whether a reasonable person, with background and characteristics similar to the insured, would have viewed the resulting injury or death as substantially certain to result from the insured’s conduct. See id.; Todd, 47 F.3d at 1456.

Courts applying the federal common law of ERISA have used a number of slightly different verbal formulations to describe the objective portion of the inquiry.

See, e.g., Todd, 47 F.3d at 1456 (holding that a subjective expectation of survival is objectively reasonable “if death is not substantially certain to result from the insured’s conduct”); Wickman, 908 F.2d at 1088-89 (stating a court should determine whether a reasonable person situated as the insured was “would have viewed the injury as highly likely to occur as a result of the insured’s intentional conduct”); Bennett, 956 F.Supp. at 211 (adopting the rule that a subjective expectation of survival is objectively reasonable if death is not “substantially likely” to result from the insured’s conduct).

Although the difference between the formulations is not great, see Todd, 47 F.3d at 1456 (noting that the “substantially certain” test “followed the essence of’ the “substantially likely” test), we agree with the Fifth Circuit in Todd that the “substantially certain” test is the most appropriate one, for it best allows the objective inquiry to “serve[ ] as a good proxy for actual expectation.” Wickman, 908 F.2d at 1088. The undisputed evidence in this case requires us to conclude that Mr. Padfield’s death was “accidental,” and was thus not a “suicide” with'in the meaning of the policy.

Autoerotic asphyxiation practitioners expect to survive the experience, and there is nothing to suggest that Mr. Padfield subjectively expected otherwise. Though the record is limited, it appears that Mr. Pad-field had a history of engaging in this autoerotic behavior and surviving it. Moreover, there is no evidence that he was distraught or experiencing any personal problems. Because death by 'autoerotic asphyxiation is statistically rare, his expectation of survival certainly was reasonable! Even if we could not determine Mr.

Padfield’s subjective, expectations, the same conclusion would be warranted under a purely objective analysis because death is not the “substantially certain” result of autoerotic asphyxiation. We agree with the court’s holding in Todd: Given the uniform medical and behavioral science evidence indicating that autoerotic activity ordinarily has a nonfatal outcome, “the likelihood of death from autoerotic activity falls far short of what would be required to negate coverage” under an accidental death policy. 47 F.3d at 1456; see also Bennett, 956 F.Supp. at 211-12.

Examining the suicide exclusion in its “ordinary and popular sense as would a person of average intelligence and experience,” Babikian, 63 F.3d at 840, it is clear that the provision does not preclude recovery of benefits. Mr. Padfield “was merely involved in

an act designed to enhance his sexual gratification,” and we believe that “in the common understanding ..., [his] death would be regarded as accidental.” Parker, 851 F.Supp. at 1295. Every court to have considered autoerotic asphyxiation under the federal common law of ERISA has concluded that it is not excluded from coverage by a suicide exclusion. See, e.g., Todd, 47 F.3d at 1456-57; Bennett, 956 F.Supp. at 212-13; Parker, 851 F.Supp. at 1295; Fawcett v. Metro. Life Ins. Co., No. C-3-97-540, 2000 WL 979994 at *4 (S.D.Ohio June 28, 2000). The district court did not err in so holding. B.

Exclusion for “Intentionally Self-Inflicted Injury” AIG also argues that Mrs. Pad-field may not receive benefits under the policy because Mr. Padfield’s death was the result of an “intentionally self-inflicted injury.” The district court held for AIG on this ground. We disagree. Courts addressing the exclusion for “intentionally self-inflicted injury” in cases of death during autoerotic asphyxiation have reached conflicting conclusions.

Two courts applying state law have held that individuals who died while engaging in the practice did not “intentionally inflict” upon themselves “bodily injury in the normal and usual meaning of that term.” Tommie, 619 S.W.2d 199, 203 (Texas Ct.App.1981); see also American Bankers Insurance Company of Florida v. Gilberts, 181 F.3d 931, 933 (8th Cir.1999). Most recently, in American Bankers Insurance Company of Florida v.

Gilberts, the Eighth Circuit, applying Minnesota law, interpreted a policy that, like the one here, specifically excluded a loss that resulted from “an intentional self-inflicted injury,” and defined “injury” as a “bodily injury which is ... caused by an accident.” 181 F.3d at 932. The American Bankers court applied a state-law standard that largely parallels the standard used under ERISA federal common law for the

interpretation of policy provisions, noting that, under Minnesota law, “[tjerms in insurance policies are to be given the plain and ordinary meaning as would be ascribed to them by a reasonable insured.” Id. at 933. The court noted that autoerotic asphyxiation, when successfully performed, involves no visible marks on the neck and only de minimis tissue damage, and that there was no evidence “that the procedure involves pain of any kind.” Id.

Accordingly, it held that it could not be said as a matter of law “that a temporary decrease in the oxygen level of the brain, of itself, is a bodily injury in the ordinary sense of the term.” Id. Two other courts applying state law disagree. See Sims v. Monumental Gen. Ins. Co., 960 F.2d 478, 480 (5th Cir.1992) (applying Louisiana law and holding that “partial strangulation” during autoerotic asphyxiation is an injury in and of itself and that an “intentionally self-inflicted injury” exclusion precludes recovery); Sigler v. Mutual Benefit Life Ins.

Co., 663 F.2d 49, 50 (8th Cir.1981) (holding the same under Iowa law). In the face of this divergence of opinion in cases applying state law, two federal district courts applying the federal common law of ERISA, under an abuse of discretion standard, have held that plan administrators did not act arbitrarily and capriciously in precluding recovery under “intentionally self-inflicted injury” exclusions in cases of autoerotic asphyxiation. See Hamilton v. AIG Life Ins.

Co., 182 F.Supp.2d 39, 49-50 (D.D.C.2002) (“the fact that reasonable minds might differ on the question simply proves that it is not an abuse of discretion to decide that partial strangulation is an injury”); Fawcett, 2000 WL 979994 at *7 (“The possibility that reasonable minds may differ on this issue merely confirms that [the insurance company] did not act arbitrarily and capriciously” in finding that partial strangulation is an injury and that an “intentionally self-inflicted injury” exclusion precludes recovery).

In very recent cases, two district courts applying a de novo standard of review have held that an insured’s death while engaging in autoerotic asphyxiation was excluded under provisions similar to the “intentionally self-inflicted injury” provision in this case. See Critchlow v. First UNUM Life Ins. Co. of America, 198 F.Supp.2d 318, 323-26 (W.D.N.Y.2002); Cronin v. Zurich American Ins. Co., 189 F.Supp.2d 29, 39 (S.D.N.Y.2002). Both courts acknowledged the “conflicting conclusions” reached by courts interpreting such exclusions in the context of autoerotic asphyxiation.

Cronin, 189 F.Supp.2d at 38; see also Critchlow, 198 F.Supp.2d at 325-26. As discussed above, we apply a de novo standard of review. Applying that standard, we agree with the courts that have held that autoerotic asphyxiation is not an intentionally self-inflicted injury. Federal courts deciding ERISA claims apply the subjective/objective test discussed above to determine, not only whether a death was accidental, but also whether an injury was “intentionally self-inflicted.” The district court correctly observed that this case hinges on whether the physical consequences that Mr. Padfield intended were injuries.

If they were injuries, and if they led to his death, the exclusion applies, and AIG correctly denied benefits. All of the evidence indicates that if the events of February 9, 1999 had gone as Mr. Padfield intended, he would have experienced a temporary deprivation of oxygen, a euphoric light-headedness from the exposure to the industrial solvent, and an intensified sexual experience. His oxygen level would then have been restored, his euphoric state would have subsided, and he would have returned home uninjured.

None of these consequences is an “injury” as that term is defined in the “ordinary and popular sense [by] person[s] of average intelligence and experience.” Babikian, 63 F.3d at 840. As it turned out, of course, events did not go as Mr. Padfield intended. He did not return to consciousness, and the intended physical consequences led to unintended injuries. The necktie tightened, thereby injuring the tissue in his neck and leaving a visible mark; his blood flow was cut off for a sustained period; and he died from a lack of oxygen.

The critical question is whether these injuries, which resulted in his death, were “intentionally self-inflicted” within the meaning of the policy exclusion. We believe that the evidence shows that Mr. Padfield’s injuries were not “intentionally self-inflicted.” As previously discussed, Mr. Padfield had no subjective intent to cause the injuries that resulted in his death. The next question is whether the suppositions underlying Mr. Padfield’s subjective intent were objectively reasonable. See Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 463 (7th Cir.1997). We conclude that they were.

A reasonable person with background and characteristics similar to Mr. Padfield’s would not have viewed the strangulation injury that resulted in his death as “substantially certain” to result from his conduct. Todd, 47 F.3d at 1456 (stating that an expectation is objectively reasonable if the outcome is not “substantially certain to result from the insured’s conduct”). AIG emphasizes that Mr. Padfield voluntarily engaged in a risky activity.

This is true, but voluntary risky acts resulting in injury are not necessarily acts that result in “intentionally self-inflicted injury.” The analysis of the Seventh Circuit in Santael-la demonstrates this proposition. The insured in Santaella died from an overdose of a prescription pain medication. The record showed that she had voluntarily taken a dangerously large amount of the drug, but the amount was of a size that usually indicated an accidental rather than a deliberate overdose. 123 F.3d at 465. The insurance policy contained an exclusion for death resulting from “intentionally self-inflicted injury.” Id.

Defining that phrase “in the ordinary and popular sense, in the way that a person of average intelligence and experience would interpret” it, id. at 463, the court held that the record would not support a determination that the insured “did anything other than make a fatal mistake.” Id. at 465. “It is undisputed that she took the drug voluntarily, but nothing in the record indicates that she intended to take an overdose or that she intended to inflict injury on herself.” Id. This case is analytically identical to San-taella. Mr.

Padfield voluntarily engaged in actions that led to a fatal injury, but his reasonable expectation was that this behavior would not have resulted in “injury” as that word is commonly defined. Given both the usual pattern of autoerotic asphyxiation and the statements by Mrs. Padfield, the undisputed facts in this case show that Mr. Padfield, having performed the act in the past without inflicting any injury, had a reasonable expectation that he would be able to do so again. Thus, like the insured in Santaella, Mr. Padfield “did not die from an intentionally self-inflicted injury.” Id. at 465.

Rather, he made a “fatal mistake.” Id. “Generally, insureds purchase accident insurance for the very purpose of obtaining protection from their own miscalculations and misjudgments.” Wickman, 908 F.2d at 1088. Conclusion Congress, in adopting ERISA, expected that “a federal common law of rights and obligations under ERISA-regulated plans would develop[.]” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Based on this common law, we hold that the suicide exclusion does not preclude recovery.

Likewise, guided both by the subjective/objective analysis employed in other ERISA cases and by the mandate that we read provisions in an ERISA-governed policy in their “ordinary ' and popular sense,” Babikian, 63 F.3d at 840, we also hold that recovery is not precluded by the exclusion for death resulting from “intentionally self-inflicted injury.” The district court’s orders granting

summary judgment to insurer AIG and denying

summary judgment to Mrs. Padfield are both REVERSED, . AIG cites to non-ERISA cases decided under state law that hold that a reasonable person would have foreseen that death could result from autoerotic asphyxiation and therefore such a death is not an “accident.” See, e.g., Sigler v. Mutual Benefit Life Ins. Co., 663 F.2d 49, 50 (8th Cir.1981) (applying Iowa law); Int’l Underwriters, Inc. v. Home Ins. Co., 662 F.2d 1084, 1087 (4th Cir.1981) (applying Virginia law). For the reasons stated in the text, we do not agree with the conclusion of these state-law cases that autoerotic asphyxiation deaths are not accidental as that term is ordinarily understood.