insured.”). If so, the court asks whether the suppositions that underlay the insured’s expectation were reasonable, from the perspective of the insured, allowing the insured a great deal of latitude and taking into account the insured’s personal characteristics and experiences. See id. If the subjective expectation of the insured cannot be ascertained, the court asks whether a reasonable person, with background and characteristics similar to the insured, would have viewed the resulting injury or death as substantially certain to result from the insured’s conduct. See id.; Todd, 47 F.3d at 1456. Courts applying the federal common law of ERISA have used a number of slightly different verbal formulations to describe the objective portion of the inquiry. See, e.g., Todd, 47 F.3d at 1456 (<HOLDING>); Wickman, 908 F.2d at 1088-89 (stating a court
recognizing that substantive issue of liability may be litigated in the same action for wrongful death and survival actions holding that manifest intent exists when a particular result is substantially certain to follow from the employees conduct holding that a subjective expectation of survival is objec tively reasonable if death is not substantially certain to result from the insureds conduct holding that a death sentence for a conviction for the rape of a child where the crime did not result and was not intended to result in death of the victim was barred by the eighth amendment holding that plaintiff in survival action bears burden of proving that death was not instantaneous although a few seconds survival constitutes sufficient amount of time to vest accrual of cause of action