The Illinois Court of Appeals recently considered whether an insurance company was obligated to defend its insured in a wrongful death claim involving methadone intoxication notwithstanding the fact that the insurer’s homeowner policy contained a controlled substance exclusion. In Skolnik v. Allied Property & Cas. Ins. Co., 2015 IL App (1st) 142438, — N.E.2nd —–, 2015 WL 9921917 (Ill. App. 1st Dist. Dec. 22, 2015), the insureds under a homeowner’s policy were sued for the wrongful death of Haley Johnson (Haley) who died of methadone intoxication in the bedroom of the insureds’ son, Joshua Skolnik (Joshua). According to the Complaint, Haley and her friends met with Joshua who bought all of them drinks. Haley’s friends left the pub where they had been drinking while Haley remained with Joshua. After Haley had another drink that Joshua provided, she apparently told him that she thought “something” had been put into it and that she needed assistance to walk. Thereafter, Joshua took Haley to his parents’ home where they had sex in his bedroom.
By history, Joshua had abused drugs in the past and had used methadone. Joshua’s parents knew of his drug history and the fact that methadone was in the house. During the course of the evening, Joshua’s parents had heard voices in the bedroom and at one point Joshua’s mother checked in on them at which point Joshua told her that Haley had passed out in the bedroom. When two of Haley’s friends came to the Skolnik home to check on Haley, Joshua did not let them see her. Joshua told them that Haley had passed out naked in his bedroom. Later the following day, Joshua told his parents that Haley was still unconscious. Three hours later, his parents left for dinner and then, another six and one-half hours later, Joshua pulled Haley off his bed and called his parents who had not yet returned. Joshua told his parents that Haley felt cold to the touch. The parents instructed their son to dress Haley and to call 911. When the police arrived, Haley was not breathing. She was later pronounced dead at the Skolnik home. Autopsy results indicated that methadone intoxication was the cause of Haley’s death. Lab tests also detected concentrations of GHB and Rohypno (both drugs referred to as “date-rape” drugs) in Haley’s blood. However, the manner of death from the autopsy was “undetermined.”
The underlying tort Complaint brought by Haley Johnson’s father alleged two counts of wrongful death, two counts of liability under Illinois Survival Statute, one count of false imprisonment, one count of civil conspiracy to restrain Haley Johnson against her will, and one count of battery. All of the counts were brought against Joshua Skolnik’s parents with the exception that the last count, battery, was alleged only against Joshua for putting a “date-rape” drug in Haley Johnson’s drink while at the restaurant and then later having sex with her without her consent.
Regarding the wrongful death allegation, Count I alleged wrongful death negligence indicating that the Skolniks carelessly and improperly stored methadone, a known controlled substance, in a manner that they knew or should have known were unsafe and potentially fatal. Count I also alleged that Joshua Skolnik’s parents negligently, carelessly and improperly failed to request emergency medical assistance for Haley Johnson within a reasonable time period after knowing she was physically incapacitated or unconscious. Count II alleged wrongful death due to willful and wanton conduct because the Skolnik parents knew or recklessly disregarded the danger of having methadone in their home, and knew Haley’s condition while she was in their son’s bedroom. Count III of the Complaint alleged that Joshua gave Haley a drink containing date-rape drugs and then had nonconsensual sex with her.
Allied Property and Casualty insured the Skolniks under a homeowner’s policy. Allied filed a declaratory judgment action asserting that the policy controlled substances exclusion relieved Allied of its duty to defend the insureds for the underlying Complaint. The trial court granted Allied’s motion finding that Allied had no duty to defend because the exclusion operated to release Allied from the duty to defend and the exclusion’s exception did not apply. The trial court’s ruling was appealed. On appeal, the Skolniks argued that the underlying Complaint alleged facts with either fell within or were potentially within the grant of coverage. In response, Allied argued that Haley’s death resulted from controlled substances.
The Appellate Court noted that in the trial court proceedings the Skolniks argued that there was the possibility of multiple proximate causes of Haley’s death and that the ultimate determination of what caused her death presented an issue of fact. Under Illinois law, if a proximate cause of an injury comes within the included coverage of an insurance policy, the coverage is not voided merely because the policy excluded an additional proximate cause of the injury. Citing United States Fidelity & Guaranty Co. v. State Farm Mutual Auto. Ins. Co., 152 Ill.App.3d 46, 48, 105 Ill.Dec. 254, 504 N.E.2d 123 (1987). Relying upon this case authority and extrapolating from its holding, the Appellate Court found that the claim of negligence asserted against the Skolniks was a potential separate and independent cause of Haley’s death. The Skolniks asserted that whether Haley’s prior alcohol and drug use or the Skolniks’ failure to summon aid were contributing causes to Haley’s death were issues of fact to be determined by the trier of fact. The negligence counts in the Complaint alleged an omission. The Court of Appeals noted that despite the autopsy notation regarding the cause of death, a genuine issue of material fact existed as to whether Haley’s death was caused solely by her methadone ingestion. The four corners of the Complaint set forth details that, if true, described a lengthy and protracted period of time during which the Skolniks could have sought assistance for Haley. Additionally, the Court noted that it was unknown as to whether Haley would have died if the Skolniks had allowed Haley’s friends to see her, the Skolniks had called 911, or if Joshua truthfully informed his parents earlier about Haley’s condition. An additional potential cause of death included a genetic predisposition and a prior history of drug abuse. Because there were alternative potential proximate causes of Haley’s death, the Appellate Court reversed the trial court’s grant of summary judgment and remanded for further proceedings.
Allied’s policy contained a standard controlled substance exclusion. The Skolnik case demonstrates the fact intensive nature of substance abuse death claims and while the principal proximate cause of injury or death may be the use of a controlled substance, there is always the issue of failure to render aid while the drug user is in physical distress.
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