Evanston Insurance Co. v. Legacy of Life, Inc., No. 11-0519 DB
The Fifth Circuit has sent a certified question to the Texas Supreme Court asking it, once again, to construe an insurance policy under Texas law.
The insurance policy covered Legacy of Life, which specialized in organ donations. Here is how the Fifth Circuit’s order (PDF) describes the facts of the underlying case:
In that underlying lawsuit, plaintiff Debra Alvarez alleged that in December 2006 while her mother, Alicia Garza, was terminally ill, she consented to Legacy’s harvesting some of her mother’s organs and tissues (including corneas, skin, bone, and arterial tissue) after her mother’s death. Ms. Alvarez alleges that she consented to the harvesting because Legacy, a non-profit corporation, represented to her that the harvested tissues would be distributed on a nonprofit basis, and that, contrary to these representations, Legacy instead transferred the tissues to a for-profit company, which sold the tissues to hospitals at a profit.
The opinion notes that the plaintiff in that lawsuit, Alvarez, did not herself suffer a physical injury.
That fact becomes central to how the Fifth Circuit frames the certified questions, which ask whether the type of injury at issue in this suit falls within the policy’s definition of “personal injury” or “property damage”:
“Does the insurance policy provision for coverage of ‘personal injury,’ defined therein as ‘bodily injury, sickness, or disease including death resulting therefrom sustained by any person,’ include coverage for mental anguish, unrelated to physical damage to or disease of the plaintiff’s body?”
“Does the insurance policy provision for coverage of ‘property damage,’ defined therein as ‘physical injury to or destruction of tangible property, including consequential loss of use thereof, or loss of use of tangible property which has not been physically injured or destroyed,’ include coverage for the underlying plaintiff’s loss of use of her deceased mother’s tissues, organs, bones, and body parts?”
The next step in the process is for the Texas Supreme Court to formally accept the question (which seems likely) and to set a briefing schedule for the parties. Depending on the briefing schedule, this case might be set for oral argument around November or December.