You know that many insurance policies and ERISA-governed plans exclude from coverage disabilities “resulting from, or related to…any accident related to the voluntary influence of any drug, narcotic, intoxicant or chemical….”

The next time you are enjoying a fine beer or wine, a single malt scotch or even a Kamikazi, ponder this question…

Is it sufficient to rely solely on a blood alcohol test to establish the intoxication exclusion? NO.

Here’s the case of Prelutsky v. Greater Georgia Life Insurance Co., 2016 WL 4177469 (N.D. Ga. August 8, 2016) (Relying solely on a .25 blood alcohol test is insufficient to establish Intoxication Exclusion, especially when witnesses could have been interviewed to obtain facts regarding the claimant’s “physical and mental state immediately preceding the fall.”)

FACTS: Maneuvering at Aspen with a .25 alcohol level, Prelustky fell down 20 stairs and sustained a brain injury. He sought ERISA-governed long term disability from his law practice because of short and long term memory deficits. Greater Georgia Life denied the claim under the Intoxication Exclusion based upon medical records showing a .25 blood test, and a doctor’s diagnosis of “intoxication.” Prelustky appealed, claiming Greater Georgia failed to fully investigate, and that a witness confirmed he did not appear intoxicated but that he had actually tripped on his ski pants.

ISSUE: Was there sufficient evidence to sustain the Intoxication Exclusion?

DISTRICT COURT HELD: No. (Applying de novo and abuse of discretion standards)

  1. For the intoxication exclusion, the issue is whether Plaintiff was under the voluntary influence of an intoxicant when he was injured initially. Op. at 20.
  2. To investigate the exclusion, the insurer should obtain a blood test and a list of physical symptoms expected at a certain blood alcohol level to “determine if the [claimant’s] intoxication resulted in a degradation of his physical and cognitive abilities such that the causal link can reasonably be drawn between the injury and causation.” Op. at 21.
  3. “The Court concludes that Defendant failed to conduct a sufficient investigation that would allow the administrator to reasonably find a causal link between Plaintiff’s alcohol consumption and his fall.” Op. at 21.
  4. “‘[U]nder the language of the Policies there must be some evidence of the role of alcohol in the loss, beyond the insured’s intoxicated state, to establish applicability of the exclusion.’” Op. at 24.
  5. Greater Georgia “failed to meet its burden to show Plaintiff’s injury was caused by, resulted from, or was related to his intoxication” because the record “lacks any clear indication that [Plaintiff] exhibited any of the purportedly typical effects associated with a blood alcohol level of [0.25%].” Op. at 25.
  6. Merely having an independent reviewing physician consider the blood test and opining that certain physical symptoms are present is insufficient. Op. at 21, fn 6 and 7.
  7. Witnesses could have been interviewed to obtain facts regarding the claimant’s “physical and mental state immediately preceding the fall.” Op. at 21, fn 6 and 7.