Document Type

Article

Disciplines

Insurance Law

Abstract

Words often carry an intuitive meaning that defies explicit definition. While this vagueness typically poses no issue in our daily lives, it presents distinct challenges within the legal realm where words and their definitions wield the power to influence the course of justice. One abstract concept is notoriously elusive: what is an accident? Despite the apparent simplicity of identifying what is commonly understood implicitly, there are inherent challenges in “giving substance to a concept which is largely intuitive.”

The Wickman framework was crafted to navigate these challenges, recognizing that an insured’s background, experience, and skill in a particular activity may shape their perception of risk. However, with this deference comes the potential for imbalance—under Wickman, it’s not the average person’s viewpoint that matters, but rather how the insured, with their unique characteristics, interprets the danger.

When applying the framework, a focal point has emerged: the significance of prior successful practice of the ultimately fatal activity. If an insured has previously engaged in the activity and survived, subsequent death from that activity is often deemed accidental because prior survival indicates a subjective belief of continued survival. The existence of prior successful practice weighs heavily on the court’s perspective of the chain of events and, thus, its determination of accidental death. This becomes complicated when analyzing fatal first-time undertakings, i.e. intentional acts not committed by the insured before that which ultimately caused their death, leading to questions about the temporal and experiential aspects of the insured’s actions.

Download

Included in

Insurance Law Commons

Share

COinS