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\\nPotentially Compromised Embryos not a Direct Physical Loss\\n\\nModern science allows an embryo to be created outside the body of a \\nwoman and later implanted and grown to term. The in vitro fertilization \\nprocess allows more than one viable embryos to be created and they can \\nbe stored for use later in a cryogenic tank.\\n\\nSherlene and Lawrence Wong (the Wongs) had stored some embryos at a \\nfacility that kept them in a cryogenic tank that failed to maintain the \\ntemperature necessary to store the embryos, following which the Wongs\'s \\nfertility doctor told them they should consider the embryos \\n"compromised" and "no longer viable, and lost."\\n\\nIn Sherlene Wong et al. v. Stillwater Insurance Company, A162893, \\nCalifornia Court of Appeals, First District, Second Division (June 30, \\n2023) the Wongs attempted to recover the value of the embryo\'s from a \\nhomeowners insurance policy they maintained with\\xa0 Stillwater Insurance \\n(Stillwater). The policy was a specified perils policy that only insured\\n for "direct physical loss" that was "caused by any of the following \\nperils," going on to list 16 specified perils. The Wongs made a claim \\nfor property damage, which Stillwater denied.\\n\\nThe Wongs sued, and Stillwater moved for summary judgment, on two bases:\\n the Wongs could not submit evidence of (1) "direct physical loss" or \\n(2) that "one of the sixteen specified perils occurred." The trial court\\n granted summary judgment.\\n\\nBACKGROUND\\n\\nBeginning in 2014, the Wongs pursued in vitro fertilization, working \\nwith Aimee Eyvazzadeh, M.D., as their doctor. In 2015, the Wongs \\ncompleted an in vitro fertilization (IVF) cycle, and obtained four \\nviable embryos, one of which was implanted. As to the other three, as \\nDr. Eyvazzadeh put it, after discussion with the Wongs they determined \\nto "bank the rest," which they did at Pacific Fertility Center (Pacific \\nFertility or PFC), a facility in San Francisco that included several \\ncryogenic storage tanks that used liquid nitrogen to store human embryos\\n at very low temperatures. Specifically, the embryos were stored in Tank\\n 4, which also contained embryos belonging to other people.\\n\\nOn or about March 4, 2018, Tank 4 failed to maintain the temperature \\nnecessary to store embryos, as a result at least some (and possibly all)\\n of the embryos stored in that tank partially or totally thawed.\\n\\nThe Stillwater policy provided coverage for personal property the Wongs \\n"owned or used" while "anywhere in the world," with policy limits for \\npersonal property of $502,720. The policy was a "specified perils" \\npolicy,\\n\\nThe Proceedings Below\\n\\nStillwater filed a motion for summary judgment. \\n\\nEventually, the trial court filed its order granting the motion for \\nsummary judgment concluding that Stillwater met its burden of \\ndemonstrating that the causes of action alleged in the Wongs\' complaint \\ncannot be established. Judgment was entered in favor of Stillwater, from which the Wongs filed an appeal.\\n\\nDISCUSSION\\n\\nThe burden is on the insured to prove facts establishing the claimed \\nloss falls within the coverage provided by the policy\'s insuring clause.\\n\\nNo Evidence of Any Specified Peril\\n\\nThe Stillwater policy was, as noted, a "specified perils" policy. \\n\\nZALMA OPINION\\n\\nStillwater conceded that the embryos were "personal property" that could be insured under the homeowners policy, although arguments could have been made that they were not property any more than a child born from the embryo would be property. Regardless, it effectively argued that there was no evidence that the embryos were damaged or destroyed when the temperature in the cryogenic chamber rose nor was there evidence that the embryos suffered direct physical damage only that they were "worthless" to an IVF doctor.\\n\\n