Except for certain unusual situations, I do not do auto coverage work. And I know that many CO readers can say the same. But I included Thompson v. State Farm Mutual Auto Ins. Co., No. 18-1422 (10th Cir. Nov. 29, 2019) here because it’s interesting, causation of injuries is an issue that can arise under various policy types and it involves the prevalent issue of opioids.
At issue was underinsured motorist coverage for Cynthia Thompson. In August 2013, Ms. Thompson suffered a broken neck when her vehicle, in which she was a passenger, was hit by an underinsured vehicle. Here doctors prescribed oxycodone and diazepam to alleviate her pain. Ms. Thompson died six months later.
The autopsy detected no oxycodone in Ms. Thompson’s blood. Instead, fentanyl and diazepam was found. The cause of death was an accidental overdose of this combination of medications.
It turns out that, years before the accident, Ms. Thompson’s doctors prescribed her fentanyl to treat neck pain. She last received a prescription for fentanyl three years before the accident.
It was figured out that “Ms. Thompson used a leftover fentanyl prescription as a substitute for the oxycodone because the oxycodone caused extreme nausea. But because she was no longer a regular fentanyl user, she lost her tolerance to it, and the combination of fentanyl and diazepam proved deadly.”
Ms. Thompson’s son sought UIM benefits from State Farm. But the insurer refused on the basis that the car accident did not cause his mother’s overdose and resulting death. He sued State Farm. State Farm argued that “Ms. Thompson’s self-medication, not the car crash, proximately caused her death. In other words, State Farm argued that her self-medication intervened to break the chain of causation. State Farm claimed it could not foresee that a car accident might cause Ms. Thompson to overdose on a medication that doctors last prescribed in 2010—some three years before the accident.” (emphasis added).
The district court agreed with State Farm. But the Tenth Circuit reversed, concluding that Ms. Thompson’s death could have been caused by the motor vehicle accident:
“As we see it, reasonable minds could disagree as to whether Ms. Thompson’s overdose on pain medication was foreseeable. Plaintiff’s expert opined that ‘Ms. Thompson’s manner of death is consistent with that of an accident via what appears a self-directed attempt to control her pain to prolonged healing of traumatic cervical spine injury.’ Plaintiff also presented evidence that Ms. Thompson had a prior prescription for fentanyl and that she used fentanyl patches to treat neck pain for many years before the car accident. Plaintiff explained that Ms. Thompson replaced the oxycodone with a leftover fentanyl patch because the oxycodone caused her to experience extreme nausea. The district court accepted Plaintiff’s evidence but concluded that Ms. Thompson’s use of a dangerous narcotic was unforeseeable as a matter of law. In reaching this conclusion, the district court failed to adequately consider the context of the situation and draw all inferences in Plaintiff’s favor. As the record demonstrates, Ms. Thompson successfully used fentanyl patches in the past to alleviate her neck pain. Then, after suffering a broken neck in the car crash, her neck pain returned. Plaintiff presented evidence that Ms. Thompson stopped using the prescribed oxycodone because it made her sick and instead used a leftover fentanyl patch—a medication she used (with a prescription) in the past to treat a similar, if not identical, type of pain. A reasonable jury could conclude that based on her medical history and prior use of fentanyl patches, it was reasonably foreseeable that she would use a leftover patch to treat her resurfaced neck pain after the accident. The district court’s conclusion creates a bright-line rule that automatically cuts off causation whenever a person overdoses on non-prescribed or leftover medication. Under Colorado law, however, the fact-intensive nature of proximate causation and foreseeability cautions against such a bright-line rule.”
