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Undetermined Cause of Death Insufficient to Support AD&D Claim – W.D. La.

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  • Undetermined Cause of Death Insufficient to Support AD&D Claim – W.D. La.

    Undetermined Cause of Death Insufficient to Support AD&D Claim – W.D. La.

    Attached is a case out of the Western District of Louisiana, Hillebrandt v. Unum Life Insurance Co. of America. The case involved an accidental death and dismemberment claim for plaintiff’s husband. The decedent was scuba diving in Mexico when he surfaced due to difficulty breathing. He subsequently fell into a coma and died. The cause of death was undetermined on the autopsy report because it could not be determined whether the death was caused by an underlying condition or faulty scuba diving equipment (which was not made available for inspection). Plaintiff filed an AD&D claim, and defendant denied it asserting that it could not be definitively determined that the death was “caused by an injury resulting from an accident and independently from all other causes.” The court agreed with Unum:

    Here the plan administrator’s decision on the second round of review was summarized in its May 24, 2018, letter to plaintiff:

    [I]t has not been established, as required by the policy, that Mr. Hillebrandt’s death was an accidental bodily injury resulting from accident and independently of all other causes. While the cause and manner of Mr. Hillebrandt’s death remains undetermined, there is evidence that his medical conditions could have reasonably contributed to or been the cause of his death.

    Doc. 30, att. 2, p. 214 (emphasis added). The plaintiff maintains that the record “strongly support[s] the conclusion that the air embolism . . . was the proximate and sole cause of death” and that “it is highly likely that [the decedent] suffered no medical issues except for the air embolism.” Doc. 31, p. 24. Furthermore, she insists that Unum engages in “pure[] speculation” by finding that a preexisting medical condition played any role. Id. at 26–28.

    As Unum points out, and plaintiff does not refute, there are two probable scenarios that would account for an air embolism (assuming that the decedent experienced one). These are improper breathing on ascent due to (1) a diving equipment malfunction11 or (2) underlying medical issues. Both could have prevented the decedent from breathing properly during his ascent and caused the air embolism. Doc. 34, p. 35. 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. Id. Namely, Unum points to the following:

    • The decedent’s history of cardiovascular disease and asthma;
    • Nelson’s observation that these conditions, particularly the asthma, put him at a greater risk for a “natural event” while diving, and that the asthma itself might have made the embolism more likely;
    • The fact that the decedent 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, or too-rapid ascent, and Nelson’s conclusion that none of these factors suggested the setting that would cause an air embolism;
    • The fact that the decedent’s alveolar septal rupture, a key indicator of air embolism according to Caruso, could also be caused by mechanical ventilation; and
    • Caruso’s acknowledgment that witnesses who had observed the decedent in the water stated that he appeared to develop a medical problem while underwater.

    Id. at 30–31. Dr. Caruso found, and Dr. Nelson did not refute, that the echocardiogram ruled out the occurrence of a “fatal primary cardiac event.” Doc. 11, att. 1, p. 9. He did not state whether these results would also rule out a non-fatal event that caused the decedent to surface and initiated his collapse. At the autopsy, the medical examiner was unable to rule out heart disease as a cause of death. Caruso also admitted that he could rule out the decedent’s pre-existing health conditions as a contributing factor to an embolism and that asthma created a predisposition to such an event. See doc. 30, att. 2, pp. 241–44. Instead, he only opined that “[e]ven if . . . medical conditions such as heart disease and/or asthma may have contributed to his death, the manner of death would still be classified as an accident . . . .” Id. at 243.

    “[A]s a matter of general insurance law, the insured has the burden of proving that a benefit is covered, while the insurer has the burden of proving that an exclusion applies.” Critchlow v. First Unum Life Ins. Co. of Am., 378 F.3d 246, 256 (10th Cir. 2004) (quoting Mario v. P. & C. Food Markets, Inc., 313 F.3d 758, 765 (2d Cir. 2002)). Even if the cause of death remains undetermined, a claim may reasonably be denied due to plaintiff’s failure to meet his burden. See Hancock, supra, 590 F.3d at 1156.

    The factors described above provide substantial evidence, even with the modicum less deference owed due to Unum’s conflict of interest, that an air embolism could not be “ruled in” as a cause of death. Additionally, even if the record did show sufficient support for the occurrence of an air embolism, there is substantial evidence to support Unum’s finding that an underlying medical condition at least caused the decedent’s initial breathing difficulties and therefore contributed to his death. Although the plaintiff insists that it is “purely speculation” to determine that the decedent’s accident related to any non-accidental cause, the findings of the Nelson report suggest otherwise. The likely role of the defendant’s underlying health conditions was sufficiently established in the record to warrant exclusion of the loss under the plan’s terms. The decedent’s well-documented and recent history of asthma and the unrefuted likelihood that the disease could cause a pulmonary over-expansion injury and embolism while diving provide the necessary support to show that Unum’s decision fell somewhere “on a continuum of reasonableness.” Vega, 188 F.3d at 297. Accordingly, the plaintiff shows no basis for overturning the plan administrator’s decision on second review and judgment must be rendered in favor of Unum.
    The decision has been appealed.
    Attached Files
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