                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 19-1043
                                      _____________

                                 GIANFRANCO ARENA,
                                           Appellant

                                              v.

                        RIVERSOURCE LIFE INSURANCE CO.
                                _______________

                     On Appeal from the United States District Court
                            for the District of New Jersey
                               (D.C. No. 2-16-cv-05063)
                         District Judge: Hon. Jose L. Linares
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 10, 2019

           Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges.

                                (Filed: September 18, 2019)
                                     _______________

                                        OPINION ∗
                                     _______________




       ∗
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Gianfranco Arena (“Arena”) brought an action for breach of contract against

RiverSource Life Insurance Co. (“RiverSource”) after it denied his claim for the benefits

from the life insurance policies on his wife, Christine Arena (“Christine”). The United

States District Court for the District of New Jersey concluded RiverSource was entitled to

deny Arena’s claim because his wife’s death was subject to the suicide exclusion clauses

in her insurance policies. We will affirm.

I.     BACKGROUND

       In 2014, Christine purchased two life insurance policies issued by RiverSource;

one was a term policy and the other a “Flexible Premium Adjustable” policy. (App. at

176-77.) Both policies contain “[s]uicide [e]xclusion” clauses which limit RiverSource’s

liability for a death by suicide. (App. at 177.) The term policy provides that: “If the

insured, whether sane or insane, dies by suicide within 2 years from the Policy Date, Our

liability is limited to an amount equal to the total premiums paid.” (App. at 177

(emphasis removed).) The Flexible Premiums Adjustable policy says that: “Suicide by

the Insured, whether sane or insane, within two years from the Policy Date is not covered

by this policy. In this event the only amount payable by Us to the beneficiary will be the

premiums which You have paid, minus any Indebtedness and partial surrenders.” (App.

at 177 (emphasis removed).)

       By all accounts, Christine had a fulfilling and successful life. She thrived

professionally, working as an in-house attorney for Time Warner. She had a caring

husband and four healthy children. She was active in the Roman Catholic church and in

                                             2
her community, including service as the president of a charitable foundation. But, by

2015, the Arenas faced some financial stress. The IRS determined they owed $60,000 in

back taxes, and, the sale of their existing home fell through, after they had already

purchased a new one.

       Four days after that sale fell through, in the early morning of April 1, Arena found

his wife sitting at the kitchen table, talking on the phone to their parish priest. Arena

discovered she had already gone to the parish’s rectory earlier that morning to speak to

the priest in person. Christine was troubled, and the Arenas decided to promptly schedule

an appointment for her to see a psychiatrist, Dr. Lester Noah Shaw.

       At that appointment, Dr. Shaw found that Christine did not fit the criteria for

clinical depression because she only had experienced symptoms of anxiety and

depression for four to five days. Dr. Shaw also determined that Christine had a low risk

of suicide, as “there were a lot of protective factors and almost no risk factors.” (App. at

432.) Nonetheless, he prescribed for her Clonazepam and Sertraline, the generic versions

of Klonopin and Zoloft. 1 Christine began taking the medications immediately, but her

condition continued to deteriorate. On April 4, Dr. Shaw increased her dose of

Clonazepam, and two days after seeing her again, he again increased her dose. Following



       1
          Those medications have the potential for serious side effects, including
depression and suicidal thoughts and behaviors. The FDA warns that patients taking
Klonopin should be monitored for “the emergence of new or worsening depression,
suicidal thoughts or behavior, and/or any unusual changes in behavior.” (App. at 433.)
There are also concerns that Zoloft may lead to symptoms including anxiety and
impulsivity, and “that such symptoms may represent precursors to emerging suicidality.”
(App. at 433 (citation omitted).)
                                              3
two more appointments, Dr. Shaw increased Christine’s dose of both medications. On

April 13, Christine returned to Dr. Shaw and he added a prescription for Trazodone,

another antidepressant.

       On April 21, tragedy struck. The day started off normally. Christine worked from

home. At 2:00 p.m., she emailed the other board members of the charitable foundation

she led. At 2:06 p.m., she called her office and spoke to her boss. At approximately 2:30

p.m., Christine’s mother went to pick up the children from school. During the time

Christine’s mother was out, Arena and Christine had two brief telephone conversations,

at 2:48 p.m. and 2:52 p.m., and Christine called him again at 3:07 p.m. At some point

before her mother returned home, Christine took two of her husband’s leather belts,

moved a chair from another bedroom into a bathroom, fastened the belts together and

arranged them so that, having wrapped one around her neck, she was able to step off the

chair and hang herself.

       When her children arrived home from school, Christine’s eleven-year-old daughter

discovered her mother, who was still alive. Christine’s mother called 911 at 3:11 p.m.,

and Christine was rushed to the hospital. Christine passed away nine days later. The

police report listed the incident as a “suicide attempt[,]” and the medical examiner listed

Christine’s manner of death as a “suicide[,]” though neither made an inquiry into

Christine’s state of mind. (App. at 440.)

       Arena filed a claim for life insurance benefits with RiverSource. The insurance

company denied coverage, citing Christine’s death certificate and the suicide exclusion

clauses in her policies. Arena asked RiverSource to reconsider its decision, on the basis

                                             4
that Christine’s death was a result of the medications she had been prescribed, but

RiverSource reaffirmed its decision to deny coverage. He then filed a breach of contract

action in the Superior Court of New Jersey, which RiverSource removed to the District

Court.

         RiverSource eventually moved for summary judgment. That motion was granted,

despite a report by a forensic expert, Dr. Glenmullen, who opined that Christine could

have suffered a medication-induced disorder that altered her state of consciousness to the

point that she was unable to understand the consequences of her actions or form suicidal

intent. The District Court reasoned that “the Suicide Exclusions would apply to this case

even if Mrs. Arena would not have committed suicide but for the effect that the

medications had on her state of mind.” (App. at 9.) It acknowledged that our precedent,

Johnson v. Metropolitan Life Insurance Co., 404 F.2d 1202 (3d Cir. 1968), established

that killing oneself does not always qualify as suicide and that intent is required. But, the

Court concluded that the inquiry is into whether the decedent lacked “awareness that his

or her actions would result in death” and that Christine had such awareness. (App. at 10-

11.) It determined that Arena “ha[d] not offered any contentions or allegations ‘which

could support a reasonable conclusion that the decedent was unaware of the fatal

consequences of [her] acts[]’” and that Dr. Glenmullen’s opinion was insufficient to

create a genuine dispute of fact. (App. at 11 (second alteration in original).) The Court

further reasoned that, even if such evidence existed, the fact that Christine was “suffering

from an irresistible impulse to commit self-harm ‘would affirmatively establish that self



                                              5
destruction was the very result intended, albeit by a deranged mind.’” (App. at 11

(quoting Johnson, 404 F.2d at 1204).)

       Arena timely appealed.

II.    DISCUSSION 2

       On appeal, Arena argues the District Court erred in two ways. 3 First, he says that

a suicide exclusion clause requires the deceased to intend to take her life and that

Christine did not have that intent, and, second, that the Court improperly shifted the

burden from RiverSource to prove Christine had such intent to Arena to prove that she

did not.

       The parties’ dispute thus centers primarily on what intent on a decedent’s part is

required for a death to be a suicide under Johnson and New Jersey law. Arena contends

that “suicide requires intent to end one’s life[]” and that intentional actions and even

“‘awareness’ that one’s actions will result in death[]” are insufficient. (Opening Br. at 2.)

RiverSource disagrees and contends that awareness that one’s acts will result in death is

enough.

       It is true, as Arena argues, that it is longstanding precedent that a suicide clause,

excluding coverage for sane or insane actions, will only apply if the decedent intended to


       2
          The District Court had jurisdiction under 28 U.S.C. §§ 1332 and 1441. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the grant of summary
judgment. Dwyer v. Cappell, 762 F.3d 275, 279 (3d Cir. 2014).
       3
         Because we agree with Arena and conclude that intent is a required element for
suicide under New Jersey law, we do not address Arena’s argument that if a lower
standard of awareness fulfills that requirement, a genuine material dispute of fact still
exists.
                                              6
cause her death. See Bigelow v. Berkshire Life Ins. Co., 93 U.S. 284, 287 (1876)

(concluding that such a clause will apply “if the insured was conscious of the physical

nature of his act, and intended by it to cause his death, although, at the time, he was

incapable of judging between right and wrong, and of understanding the moral

consequences of what he was doing”). Our decision in Johnson comports with that

understanding and held that New Jersey law requires, at least under an interpretation most

favorable to the insured, that the “self destruction purposefully [be] accomplished in

accordance with an intention or design[.]” Johnson, 404 F.2d at 1204 (emphasis added).

In Johnson, we also specifically referred to two situations in which the deceased would

not have the required intent to commit suicide. The first is a circumstance in which a

purposeful act is undertaken but the result is not intended. See id. (“[A] deranged person

can believe that he is immortal, or that fuel oil is water, or, on some other irrational basis,

that saturating his clothes with fuel oil and applying a lighted match will not kill him.”).

The second is when a person’s “mental disorder [is] … so extreme that he has no

comprehension whatever of what he is doing.” Id. Subsequent New Jersey decisions

have since confirmed that suicide requires an intent to achieve the result of death. See,

e.g., Biro v. Prudential Ins. Co. of Am., 265 A.2d 830, 838 (N.J. Super. Ct. App. Div.

1970) (Matthews J., dissenting) (“Suicide includes both the notion of the instrumentality

of death being the decedent … and the notion that the decedent intended to take his own

life.”), adopted by Biro v. Prudential Ins. Co. of Am., 271 A.2d 1 (N.J. 1970) (per

curiam). We therefore conclude that New Jersey law requires, as an element of suicide,

that the decedent had an intent to end her life.

                                               7
       But such intent can be inferred from a decedent taking actions that will result in

death. Cf. Johnson, 404 F.2d at 1204 (noting that nothing in the record suggested that the

decedent’s “acts, obviously well adapted to self destruction, were not so intended”).

Circumstantial evidence is often the only evidence for suicide and is frequently used to

establish intent. See, e.g., New York Life Ins. Co. v. Prejean, 149 F.2d 114, 116 (5th Cir.

1945) (concluding that circumstantial evidence is sufficient if it is “consistent with the …

theory of suicide” and “fairly and reasonably exclude[s] every other reasonable

explanation of the facts”); cf. Hudek v. St. Peter Greek Catholic Cemetery Ass’n, 138 A.

654, 655 (N.J. Ch. 1927) (concluding that “indirect or circumstantial evidence” was

insufficient because it “consists merely of a repetition of vague rumors made by the

alleged suicide, shortly before his death, or mere conjectures and conclusions of the

witnesses”), aff’d, 140 A. 920 (N.J. 1928). But “summary judgment [i]s improper … if

the record establishe[s] a disputable issue of fact whether the insured … was attempting

to take his life[.]” Johnson, 404 F.2d at 1204. Arena contends that, under that standard,

RiverSource’s “evidence is insufficient because RiverSource bears the burden of showing

that Christine died with the intent to end her own life, and merely pointing to facts

confirming that she died at her own hands does not satisfy its burden.” (Opening Br. at

38.)

       We disagree. The parties do not dispute that Christine took two of her husband’s

leather belts, moved a chair from another bedroom into a bathroom, fastened the belts

together and wrapped one around her neck, and arranged the belts in a manner to effect a

hanging. Nor do they dispute that she in fact stepped off the chair and hanged herself.

                                             8
Those actions are sufficient circumstantial evidence to establish not only that Christine

had “awareness” that those actions would end her life but also that she intended to do so.

While such intent may have arisen suddenly on an otherwise relatively normal morning,

taking those actions is strong circumstantial evidence that at the time she took her own

life, she intended that result. As RiverSource notes, “there could have been no other

outcome from Ms. Arena’s action other than death.” (Answering Br. at 30.) RiverSource

was not required to produce direct evidence in the form of a suicide note or

contemporaneous expression of her intentions. Cf. Johnson, 404 F.2d at 1204 (relying on

a decedent’s actions to establish intent).

       Thus, to avoid summary judgment, Arena had to put forward evidence to create a

genuine dispute regarding Christine’s intent to commit suicide. He contends that

Christine’s mental state falls under the second “no intent” situation in Johnson, that

Christine’s mental disorder was “so extreme that [s]he ha[d] no comprehension whatever

of what [s]he [wa]s doing.” 404 F.2d at 1204. He bases that claim on three sources of

evidence. First is “testimony from Christine’s family, friends and colleagues, all of

whom testified that she would never have intended to end her own life had she been

thinking clearly.” (Opening Br. at 3.) Second is testimony from her physicians,

including Dr. Nash, who testified that Christine “was not capable of understanding the

consequences” of hanging herself. (App. at 512.) Third is Dr. Glenmullen’s forensic

diagnosis of Christine, which concluded to “a reasonable degree of medical certainty that

Christine suffered from medication-induced suicidality—a disorder that may cause a

person to commit self-harm without intending or understanding the consequences of his

                                             9
or her actions.” (Opening Br. at 3.) The drugs Christine was prescribed are known to

lead to suicidal thoughts and behaviors, and Dr. Glenmullen “testified that ‘[d]rug-

induced impulsivity can easily include . . . methodical behavior and that’s what …

retrieving the belts was[.]’” (Opening Br. at 39 (alterations in original) (quoting App. at

438).)

         We do not discount the importance of those alleged facts for the family, but they

are not legally material. They fall into two categories. There is, first, evidence as to

Christine’s general mental state being inconsistent with suicide, as well as her moral

aversion to suicide. That evidence is not enough because it does not undermine the

undisputed facts showing deliberate acts which can only be explained as an effort to kill

herself, even if she was not thinking clearly or was insane, when she acted. Second, there

is the evidence from Dr. Glenmullen that Christine was acting impulsively under the

control of her medication and that, as a result, the medications obfuscated her ability to

form the requisite intent – in short, that the drugs compelled Christine to take the actions

she did and so the actions are not probative of her mental state. But acting on an

irresistible impulse is different than having no intent or no comprehension of the actions

one is taking. We rejected a similar irresistible impulse argument in Johnson and noted

that such an impulse “would affirmatively establish that self destruction was the very

result intended, albeit by a deranged mind.” Johnson, 404 F.2d at 1204. While in

Johnson the impulse originated from his own mind and not from an outside influence, the

result is no different because the relevant inquiry is the mental state of the person at the



                                              10
time of the actions, and not what led to that mental state. The presence of medications

does not mean such deaths cannot qualify as suicides. 4

       Arena’s second argument is also unpersuasive. He contends that “[t]he district

court impermissibly placed the burden on [him] to show that the suicide exclusions did

not apply when New Jersey law requires insurers to establish that all coverage exclusions

apply.” (Opening Br. at 2.) True enough, in actions for insurance benefits, the insurance

company bears the burden of proving that an exclusion to coverage applies. Aviation

Charters v. Avemco Ins. Co., 763 A.2d 312, 314 (N.J. Super. Ct. App. Div. 2000). But

here the District Court concluded, as do we, that RiverSource met that burden of proof.

Cf. Nat’l State Bank v. Fed. Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992) (“The

Third Circuit has stated that ‘where the movant bears the burden of proof at trial and the



       4
           We do not believe that Kahle v. Plachman, 428 A.2d 913 (N.J. 1981), supports
the proposition that the Supreme Court of New Jersey has endorsed the idea that a
decedent who was prescribed psychotropic medication was incapable of forming the
required intent for purposes of a suicide exclusion clause. In Kahle, the court held that
the actions of the decedent, who took such drugs, were “committed under circumstances
in which the decedent was devoid of normal judgment [and thus could] not [be]
considered to be willfully, purposefully or intentionally self-inflicted[.]” Id. at 916. That
case, however, arose in the context of the Worker’s Compensation Act where “[t]he issue
of the compensability of an employee suicide … turns not on the employee’s conscious
volition or knowledge of the consequences of his act, but rather on the existence of an
unbroken chain of causation from the work-connected injury to the suicide.” Id. There,
the decedent’s mental state stemmed from her injury at work, regardless of her state of
mind when she took her own life. Id. at 913-14. Moreover, claims of medication for
depression obfuscating a decedent’s intent to harm herself have in the past been rejected
as a basis for not enforcing a suicide exclusion in other Courts of Appeals. Charney v.
Ill. Mut. Life Cas. Co., 764 F.2d 1441, 1442-43 (11th Cir. 1985) (per curiam).


                                             11
motion does not establish the absence of a genuine factual issue, the district court should

deny summary judgment even if no opposing evidentiary matter is presented.’” (quoting

Resolution Tr. Corp. v. Gill, 960 F.2d 336, 340 (3d Cir. 1992))). After that, it was up to

Arena to produce evidentiary materials demonstrating the existence of a genuine issue for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); In re Bressman, 327 F.3d

229, 238 (3d Cir. 2003). He failed to do so. None of this, of course, lessens the tragedy

that he and his family have suffered. Nevertheless, the summary judgment ruling was

sound.

III.     CONCLUSION

         For the foregoing reasons, we will affirm the judgment of the District Court.




                                              12
