The Death of an Insured Diver

When Charlie Hillebrandt, a resident of Sulphur, Louisiana, died during a dive in Cozumel, he had basic and supplemental life insurance coverage through plans his employer provided from the Unum Life Insurance Company. Both policies provided for payment for losses caused by accidental bodily injury, but stated that losses "caused by, contributed by, or resulting from . . . disease of the body" are excluded from coverage. Unum has discretionary authority to make benefit determinations and under both plans, the beneficiary was required to show that a covered loss occurred. And, as Shakespeare's Hamlet said, there's the rub.

A Diver's Death

Hillebrandt, 58, was scuba diving in Cozumel on May 3, 2015, when he surfaced due to difficulty breathing. He soon passed into a coma and was airlifted to a hospital in Houston, Texas, where he died three days later.

According to his guide, he had complications within the first three minutes of diving when the group descended to 35 feet. The guide helped him to the surface, where Hillebrandt said he was having trouble breathing. On the boat, he received oxygen but soon suffered what the guide described as a heart attack. The guide provided CPR for 30 minutes until they reached the shore, where the ambulance crew took over.

The medical report from the Cozumel International Clinic stated that after his ascent, Hillebrandt's shortness of breath increased and he became unconsciousness. Upon arrival at the clinic, he was comatose, with no palpable pulse, and was diagnosed with overall neurological dysfunction, compensatory respiratory acidosis, asthma, and hypertension, and found to be overweight.

His Houston autopsy report noted his history of hypertension, dyslipidemia, and asthma, and his body showed signs of cardiovascular disease. The report noted that the death may have resulted from a cardiac event due to underlying cardiovascular disease, but that "the scuba diving equipment must be tested in deaths." However, his equipment was unavailable, so the cause of death was undetermined.

The plaintiff, Hillebrandt's wife Christi, submitted claims to Unum for both life and accidental death benefits. She said that it was "[her] belief and the consensus of [her] friends that there was an equipment failure, either mold in a line or some other defect, that was the source of the resulting death."

Unum's pathologist, Dr. Barbara Golder, said that the autopsy showed "no evidence of trauma apart [from] that incurred by resuscitation." She stated that neither cardiac disease nor equipment failure could be ruled out, so she could not determine the cause of death "to a reasonable degree of medical certainty." Unum approved Christi Hillebrandt's claims for life benefits; however, advised that it was awaiting accident reports from Mexico before deciding her claims for accidental death benefits.

When Unum received the records, Dr. Golder again found insufficient information to determine the cause of death, so Unum denied the plaintiff's claims for accidental death benefits. The plaintiff appealed, saying "there is no question that Charlie did not die of natural causes," but Unum denied the claim.

His Wife Files a Lawsuit

On May 5, 2016, the plaintiff filed suit against Unum. She presented additional materials (including a report from forensic pathologist Dr. James Caruso) to support her new theory that Charlie's death was caused by a pulmonary air embolism. The court remanded the case to the plan administrator.

Dr. Caruso believed that Charlie had died from complications of an air embolism, noting that "death due to a primary respiratory problem does not typically present with the dramatic collapse of the individual," and ruled out a fatal cardiac event.

Caruso, the plaintiff's expert, noted that the standard dictum in diving medicine is that a loss of consciousness within 10 minutes after surfacing is an air embolism until proven otherwise. He also noted that "improperly functioning equipment rarely plays a significant role in a standard open-water diving-related death."

However, Unum's expert, Dr. Craig Nelson, with training in dive medicine, noted that Charlie was being treated for hypertension, hyperlipidemia, and asthma, which he treated with inhalers. Charlie had been advised to avoid heavy exertion. Dr. Nelson suggested several possible explanations for the "initial event" that caused Charlie to surface, and it was "possible that the event initiated an ascent that led to the air embolism." He observed, however, that Charlie was able to speak afterward, and that the guide did not note an out-of-control or rapid ascent or breath-holding, and the decedent's respiratory distress on surfacing could have been caused by asthma, immersion pulmonary edema, air embolism, or a combination thereof. He determined that "[t]he initiating event, and therefore the final cause of death, cannot be determined with certainty . . . "the role of natural disease cannot be excluded."

The Decision

Unum upheld its previous denial of accidental death benefits, noting that it "has not been established, as required by the policy, that Mr. Hillebrandt's death was an accidental bodily injury resulting from an accident and independent of all other causes. . . While the cause of Hillebrandt's death remain undetermined, there is evidence that his medical conditions could have reasonably contributed to or been the cause of his death."

The plaintiff offered to settle before returning to court, and attached a rebuttal from Dr. Caruso, disputing Dr. Nelson's interpretation of some of the evidence. However, Caruso admitted that heart disease or asthma might have initiated the crisis, saying "it was most likely the air embolism from pulmonary expansion, an accidental event, which ultimately caused death."

Unum responded saying that Dr. Caruso's rebuttal actually supported its determination that it could not established that the precise cause of death and asserted it was bound by the terms of its policy, which required that the death be independent of other, non-accidental causes.

The court reviewed Unum's decision, saying the policy explicitly defines covered losses as those caused by accidental injury, and then defines "injury" as only including "bodily injury that is the direct result of an accident and not related to any other cause." It also excludes coverage for "any accidental losses caused by, contributed to by, or resulting from" several occurrences, including "disease of the body." The court said Unum's interpretation of its plan language was reasonable. To overturn the ruling, a plaintiff must demonstrate that the plan administrator's decision was not supported by substantial evidence. Moreover, "when faced with two competing medical views, a plan administrator may exercise discretion and choose one of them."

Unum pointed out, and the plaintiff did not dispute, two probable scenarios would account for an air embolism: (1) a diving equipment malfunction, or (2) underlying medical issues. According to Unum, only the first would constitute an accidental death under its interpretation of policy provisions, and only the second is supported by any evidence that the plaintiff had cardiovascular disease and asthma: he began having trouble within a few minutes of the dive; the lack of evidence of an equipment malfunction; the decedent holding his breath on ascent; too-rapid ascent; and a witnesses who had observed the decedent in the water stated that he appeared to develop a medical problem while underwater.

"The insured has the burden of proving that a benefit is covered, while the insurer has the burden of proving that an exclusion applies." Even if the cause of death remains undetermined, a claim may reasonably be denied due to plaintiff's failure to meet his burden. The plaintiff shows no basis for overturning the plan administrator's decision and judgment must be rendered in favor of Unum, and Christi Hillebrandt's claims were dismissed.

So, fellow divers, keep your health, especially your cardiac health, in mind when you consider your next dive. And keep in mind, many diving deaths are avoidable, are not accidents, and they are not covered by accident insurance.

The article is based on the lawsuit Christi Hillebrandt v. Unum Life Insurance Co of America; Civil Action No. 2:16-cv-0844; United States District Court, W.D. Louisiana, Lake Charles Division, decided February 13, 2019.