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Judge Says Widow Can’t Have Insurance Both Ways

March 21, 1989

LARGO, Fla. (AP) _ An appeals court has denied a widow’s claim for $100,000 in life insurance, saying it couldn’t create a ″legal purgatory″ in which her brain-dead husband could be judged dead for life insurance and alive for his medical insurance.

The judges suggested a change in Florida’s insurance laws.

Ken Kepler, 49, suffered a heart attack May 28, 1986. It left him with extensive, irreversible brain damage and he was in a vegetative state in a hospital for 11 months.

He was pronounced dead April 29, 1987, 20 days after the family obtained a court order allowing doctors to withhold food and water.

That date also was 10 days after expiration of his term life insurance policy, the only life insurance he had.

Family attorney Bruce Marger contended Kepler died when he suffered the heart attack, since paramedics revived his heart rate and breathing but he never regained consciousness or more than minimal brain function.

Marger said his position was supported by public policy set by courts in at least three other states concerning the time of death ″where the dying process is interfered with by artificial means.″

A Pinellas County judge rejected that argument, as did the 2nd District Court of Appeal last month.

″Under any acceptable definition of ‘death,’ Mr. Kepler did not die before the expiration of his life insurance policy,″ the appeals court ruled. ″We cannot rewrite the contract between the parties.

″While the plaintiff’s argument would provide a comforting solution in this case, it would create numerous problems in other cases.″

The judges said they could not invent a ″legal purgatory″ in which Kepler would have been dead for life insurance purposes but alive so medical insurance could cover the remaining time he was hospitalized.

But in the same ruling, the judges said the case suggests the Florida Legislature should pass a law to automatically extend the coverage of term life insurance policies when the insured is in a chronic vegetative state.

Term life insurance pays benefits if the insured dies during a certain period. Premiums are less than for whole life insurance, which has no expiration date, provides larger benefits and offers investment opportunities.

The judges said they could foresee people forced ″to balance their love for a family member against their needs in the future for life insurance proceeds.″

Tampa attorney Michael N. Brown, who represented Kepler’s insurer, Georgia International Life Insurance Co., said extended coverage as the court suggested would require increased premiums and negate the attraction of term life insurance.

″We sympathize with her,″ Brown said of widow Lynnette Kepler, 45, who was married to Kepler 20 years and had four children with him. ″She got a bum deal but it wasn’t the fault of the insurance company.″

Brown said the company could not voluntarily pay the $100,000 she was seeking because of the precedent it would set and the concern it would raise among stockholders.

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