## Facts

- Harry Kurchner underwent cancer chemotherapy and feared resulting sterility.
- Before treatment, Harry and Suzanne Kurchner arranged for a medical facility to cryopreserve five sperm samples for potential future conception.
- The facility allegedly agreed to store samples in separate tanks with alarms but stored them together in one tank.
- The cooling apparatus failed, the storage tank warmed, and the sperm samples were destroyed.
- Harry became sterile due to chemotherapy.
- The Kurchners sued the facility for damages tied to the loss of the cryopreserved sperm.
- The facility was insured under a comprehensive business liability policy covering, among other things, “bodily injury” and “property damage”; “bodily injury” was defined as “bodily injury, sickness or disease sustained by a person.”
- The policy excluded property damage to personal property in the insured’s care, custody, or control.
- The insurer denied coverage and refused to defend; the facility sought declaratory relief on the insurer’s duties.
- The facility settled with the Kurchners, who assumed the facility’s rights against the insurer.

## Issues

1. Whether destruction of cryopreserved sperm stored outside the body constitutes “bodily injury” under a liability policy defining bodily injury as “bodily injury, sickness or disease sustained by a person.”
2. If the loss is treated as property damage, whether coverage is barred by an exclusion for personal property in the insured’s care, custody, or control.

## Decision

- The appellate court affirmed summary judgment for the insurer.
- The court held that sperm stored outside the body is personal property, not part of a person’s body, and its destruction is not “bodily injury” within the policy’s definition.
- The court further treated the claim, at most, as property damage to personal property in the insured’s care, custody, or control, which the policy excluded.
- As a result, the insurer owed no duty to defend or indemnify the insured for the underlying claim.

## Legal Principles

- Unambiguous insurance policy terms are applied according to their plain meaning; courts do not rewrite coverage.
- “Bodily injury” coverage for injury, sickness, or disease “sustained by a person” does not extend to loss of biological material voluntarily removed from the body and stored externally.
- Human cells or tissue removed from the body and held in storage are treated as personal property for purposes of standard liability coverage analysis.
- A care-custody-or-control exclusion bars coverage for property damage to personal property while it is in the insured’s possession and control.

## Conclusion

The court concluded that cryopreserved sperm destroyed while stored outside the body is personal property rather than “bodily injury” to a person under the policy, and that any resulting property-damage theory was excluded by the care-custody-or-control provision; therefore, the insurer had no duty to defend or indemnify.


Kurchner v. State Farm Fire & Cas. Co., 858 So. 2d 1220 (Fla. Dist. Ct. App. 2003)