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Harry Kurchner and his wife knew that their only hope of having children would be to have his sperm frozen and stored at a sperm bank before he underwent chemotherapy treatment that would likely leave him sterile. But the Miami couple’s chances of childbearing were ruined when a refrigerator at the South Florida Institute for Reproductive Medicine in Miami malfunctioned, destroying his sperm. In the first Florida appellate decision of its kind, the state’s 3rd District Court of Appeal unanimously ruled Wednesday that the couple cannot collect damages from the institute’s liability insurance carrier for destruction of the sperm. The court said this type of negligence isn’t covered under the bodily injury portion of the institute’s policy, because the sperm was no longer part of Kurchner’s body. In January 1998, Harry Kurchner was diagnosed with cancer and was scheduled for chemotherapy. Doctors told him the treatment likely would leave him sterile. So he and his wife, Suzanne, who were childless, decided to freeze and store five samples of his semen at the South Florida Institute for Reproductive Medicine. Kurchner survived his illness but did become sterile from the chemotherapy. In April 2001, he and his wife, then 38 and 33 respectively, sued the institute in Miami-Dade Circuit Court for negligence. In May of last year, they reached a settlement with the institute under which the institute conceded liability and assigned its right to the Kurchners to go after the institute’s insurer, Bloomington, Ill.-based State Farm Fire and Casualty Co., for the $1 million policy limit. The Kurchners agreed to seek recovery only from State Farm and not from the institute because the sperm bank didn’t have enough money to cover the damages the couple sought. “There was never any question that there was negligence,” said Paul Morris, a Miami solo practitioner who represented the couple. “The question was whether there was coverage for it.” The Kurchners then pursued their claim against State Farm, which argued that the negligence didn’t fall under its policy. In their original lawsuit, the Kurchners had alleged that the sperm bank was negligent in failing to store the sperm samples in separate coolers so that some could be saved if one of the refrigerators broke. They also alleged that the sperm bank was negligent in storing the samples in a cooler that did not have an alarm that would sound if the refrigerator’s temperature rose above the level necessary for preserving sperm. During oral arguments in Miami-Dade Circuit Court, the Kurchners alleged that they were entitled to damages under the State Farm policy because the insurer defined “bodily” as “of or pertaining to the body.” Morris argued that that since sperm is “of or pertaining to the body,” any injury to a sperm sample would be covered under the State Farm policy. But State Farm’s counsel argued that once bodily fluid or material was removed from the body, it was no longer part of the body. The insurer said the bodily injury coverage under the general liability policy only pertained to accidents such as when a client or employee slipped and fell on a wet floor. In January, Circuit Judge Michael Genden granted State Farm’s motion for summary judgment. The Kurchners appealed to the 3rd DCA. But the 3rd DCA ruled Wednesday that the definition in the institute’s insurance policy of “bodily injury” did not include injury to fluids removed from a person. “Cases from other jurisdictions, Florida Statutes and the common understanding of the relevant terms demonstrate, however, that cells removed from a body no longer constitute part of the body,” Judge Juan Ramirez Jr. wrote for the three-judge panel, which included Judges Robert Shevin and Gerald Cope. The 3rd DCA panel cited case law from California holding that preserved sperm or eggs constitute personal property. Unfortunately for the Kurchners, the State Farm policy contained a clause that excluded coverage for “personal property in the care, custody or control of any insured.” Thus, the Kurchners’ only hope for recovery was under “bodily injury” coverage provided for in the policy. And the three-judge panel found that that provision didn’t cover damage to stored sperm. The Kurchners’ attorney expressed disappointment. “It’s surprising that State Farm would insure a sperm bank for everything except damage to sperm,” Morris said. But State Farm’s attorney applauded the ruling. “Both courts held that once sperm is outside the body, it becomes property and is not part of the body,” said Richard Warren of Hardeman & Associates in Miami. The institute did not have malpractice insurance, but even if it did the Kurchners would not be able to recover from the policy, because storage of sperm is not a professional medical service that would have been covered, attorneys said.

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