Kurchner v. State Farm Fire And Casualty Co.

858 So. 2d 1220 (2003)

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Nature of the Case

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Facts

P is a recipient of cancer chemotherapy treatment. P and his wife, Suzanne Kurchner, decided to cryopreserve P's sperm with SFIRM. P deposited five sperm samples with SFIRM. SFIRM was to store the sperm samples separately in tanks maintained with alarms which were to set off when the cooling apparatuses of the tanks failed. SFIRM stored all of the samples in one tank, and the samples were destroyed when the tank's cooling apparatus failed. P became sterile as a result of his chemotherapy treatment. P sued SFIRM seeking damages. D provided SFIRM with Comprehensive Business Liability insurance. D denied coverage and refused to defend it. SFIRM filed a declaratory relief action contending that D had a duty to defend and indemnify SFIRM. P settled with SFIRM and assumed SFIRM's rights. The policy defines 'bodily injury' as 'bodily injury, sickness or disease sustained by a person, including death resulting from the bodily injury, sickness or disease at any time.' Coverage would otherwise be excluded, under section II(d) - Comprehensive Business Liability - for property damage that is 'personal property in the care, custody or control of any insured.' Everyone moved for summary judgment. The court found that 'sperm outside of the body is property and is not a part of the body' and concluding that there was no 'bodily injury' under D's policy. P appealed.