First Circuit: Neither Suicide Nor Misadventure Fall Within the Scope of the Zone of Special Danger Doctrine

Decedent was employed on a secure military base in Saudi Arabia.  One morning, his on-site girlfriend discovered Decedent’s body hanging from a noose.  Decedent was wearing pink or red toenail polish, women’s makeup and a pair of blue sweatpants.  Decedent’s widow filed a Defense Base Act (“DBA”) claim for death benefits on her behalf and on behalf of the Decedent’s three children.  Eventually, both an administrative law judge and the Benefits Review Board (“BRB”) denied the claim.  This appeal to the United States Court of Appeals for the First Circuit followed.  The First Circuit focused on two issues, jurisdiction and the zone of special danger, and ultimately denied benefits.

Proper Appellate Procedure in DBA Claims:

In some federal Circuits, litigants may appeal BRB decisions in DBA cases directly to a federal Court of Appeals.  In other Circuits, litigants must first appeal BRB decisions to the appropriate federal district court and then, if necessary, an appeal to the federal Court of Appeals may follow.  The reason for the split in authority stems from the 1972 amendments to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  In 1972, Congress amended the LHWCA to “modernize” the ordinary scheme for compensation.  All LHWCA claims are appealed from the BRB directly to the appropriate federal Court of Appeals.   The problem is that Congress did not amend the DBA’s judicial review provision at the same time.

Now, the First Circuit has specifically held that DBA claims may be appealed from the BRB directly to the First Circuit, without first stopping at the district court level.  In effect, this deepens the Circuit split, but the decision makes sense.  Most litigants–including the litigants in this case–desire a streamlined appellate process.   The only issue with the First Circuit’s appellate decision is that it used loose, policy-driven language to justify its decision:

Nevertheless, the Defense Base Act can b legitimately read to confer jurisdiction upon us, and this reading accords with the overall congressional policy reflected in the 1972 Longshore Act amendments.  Congress likely gave no thought at all to the wrinkle that concerns us; but, where statutory language permits a given reading and Congress’ policy will be fostered by it, we think that reading should prevail–even if, as here, that statutory language would also permit a contrary reading at odds with Congress’ statutory policy.

Suicide, Misadventure, and the Zone of Special Danger:

After disposing of the jurisdiction issue, the First Circuit addressed the merits of the claim.  It agreed that denial of coverage was reasonable.  Either suicide or misadventure were possible explanations for Deccedent’s death.  Both explanations were sufficient to rebut the Section 20(a) presumption in favor of coverage.  At that point in time, each party was required to offer evidence in support of their contentions.

The widow’s evidence included testimony that Decedent was planning a trip home for Christmas, and that Decedent was upbeat and happy prior to his death.  The First Circuit was not convinced:

But neither suicide nor misadventure is ruled out by the fact that [Decedent] was discovered with his head in a noose but his feet on the floor, nor by the absence of a suicide note, by no means universal in suicide cases, and hardly to be expected if the cause were misadventure.  In all events, the probability of a covered cause, as against realistic probabilities plainly present in this case, depends on whether hypothetical possibilities have support in evidence in the case at hand.  So far as appeas there is no evidence of a covered cause.

The widow also offered a few “theories” that could possibly explain her husband’s death but the theories were unavailing.  And the First Circuit phrased these theories in such a way as to suggest that it was displeased, especially when there was no evidence to support the claims other than an expert who testified that the theories were “not far-fetched.”  The widow argued:

  • that her husband may have been killed by conservative Muslim vigilantes who were offended by his alleged extramarital affair or alleged cross-dressing;
  • that her husband may have learned that one of his co-workers was involved in arms smuggling ro selling military intelligence, that the co-worker may have killed [Decedent] to silence him, and that [Employer] may have been complicit in the cover-up; and
  • that her husband had been investigating ”a threat” to Americans in the area and that he had “offended the Saudis” in the course of the investigation; and that [Decedent's] death might have been related to this investigation.

While Decedent’s death was a tragedy, and the widow’s and children’s claims are sympathetic, the DBA is not life insurance.  The “zone of special danger” doctrine could not  save her claim.  “Neither suicide in the ordinary case . . . nor harm ‘resulting from recreational activities that are neither reasonable nor foreseeable,’ . . . fall within the scope of the zone-of-special-danger doctrine.”

Truczinskas v. Dir., OWCP, — F.3d —- (1st Cir. 2012).

Jon Robinson
As a Member at Mouledoux, Bland, Legrand & Brackett, Jon Robinson focuses his practice on the representation of employers and carriers in matters arising under the Longshore and Harbor Workers' Compensation Act, the Defense Base Act, and the War Hazards Compensation Act. He can be contacted at (504) 595-3000 or by e-mail at jrobinson@mblb.com.
Jon Robinson