Organ Donor’s Family Lose| at Texas Supreme Court

(CN) - The Texas Supreme Court dealt a setback to an organ donation charity, in ruling that the loss of a dead person's tissue, organs, bones and body parts and resulting mental anguish of relatives are not covered under the charity's insurance policy.

The family of a donor from San Antonio sued the charity, Legacy of Life, claiming it had lied and sold donated body parts for profit.

Evanston Insurance Co. sued the charity in San Antonio Federal Court in May 2009, after the charity demanded Evanston defend and indemnify it in a 2008 lawsuit in Hidalgo County District Court, filed by by Debra Alvarez.

Alvarez had consented to the harvesting of organs and tissue from the body of her terminally ill mother, and said Legacy represented that the donations would be distributed on a nonprofit basis. But she says Legacy sold the parts to hospitals for profit.

The Federal Court ruled against the insurer in January 2010, finding that it had a duty to defend Legacy. Five months later, the 5th Circuit certified two questions of Texas law for the Texas Supreme Court to resolve - whether the loss of a deceased's donation is covered under property damage provisions of the insurance policy, and whether the family's mental anguish, unrelated to physical damage or disease in the deceased's body, is covered by personal injury provisions.

Writing for the court, Justice Eva Guzman answered no to both questions.

Regarding mental anguish and personal injury, Guzman found that the definition of personal injury under the policy requires a "physical manifestation" for a sickness or disease to be covered, and that this was not triggered by Alvarez's claim.

"Importantly, Alvarez did not allege that she or her mother suffered a physical injury," Guzman wrote. "Instead, Alvarez alleged that her mother's estate as the legal and rightful owner of the remains was wrongfully deprived of them, causing restitution damages to the estate and mental anguish damages to Alvarez."

On the property damage question, the court reaffirmed a ruling that found that while tissues are not the property of next of kin, they are their quasi-property. The court noted that next of kin have the right to possess the body and direct the burial and may sue for damages if someone interferes with those rights.

Guzman noted that state law gives the deceased's estate fewer rights than next of kin, that it is not allowed to be compensated for the donations made.

"The individual can designate a recipient for their tissues before their death, but once they die, their estate cannot designate a recipient or receive compensation for the tissues," Guzman wrote. "The estate therefore has fewer rights in tissues than next of kin, who may designate a recipient once the individual dies."

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