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Vol. 10 - Issue 1
January 11, 2021


Encore: Randy Spencer’s Open Mic

Insurance Coverage For Lost Memory

This "Open Mic " column originally appeared in the December 19, 2018 issue of Coverage Opinions.

I’ve seen a lot of cases addressing whether certain damage qualifies as “property damage” to trigger a Liability or Property policy.  But man I’ve never see this before.     

Marvin Mendelson tripped while walking down the street in Roswell, New Mexico.  He has no one to blame but himself.  Mendelson was staring at his phone, playing on-line Dungeons and Dragons, when he failed to see a set of steps leading into a coffee shop.  Mendelson went down hard and lost consciousness.  He spent six days in a coma.  When he awoke doctors determined that he suffered no serious physical injuries.  However, he lost certain parts of his memory.  The hope was that it would return over time.

But two months after the incident very little of Mendelson’s memory had been restored.  He sought help and learned that hypnosis might be the answer.  Unfortunately, Mendelson’s health insurance would not cover the treatment and he could not afford to pay for it out of pocket.

Mendelson turned to his homeowner’s policy, which provides coverage, in part, as follows:  Coverage C. – Personal Property: “We cover personal property owned or used by an ‘insured’ while it is anywhere in the world.” 

Mendelson’s homeowner’s insurer, Alien Property and Casualty, denied coverage.  Alien P&C advised Mendelson that, while his loss of memory was unfortunate, it is in no way lost personal property.

Mendelson, facing the need for possibly several thousand dollars of hypnosis treatment, to restore his memory, retained a lawyer.  Counsel sued Alien P&C, in Chaves County, New Mexico, seeking a declaratory judgment that Alien’s homeowner’s policy provides coverage to Mendelson, for his hypnosis treatment, on the basis that he sustained a loss of personal property.

Alien P&C filed a motion for judgment on the pleadings.  But the court was not as convinced as Alien that the claim was “outlandish,” as the insurer characterized it.  To the contrary, the New Mexico District Court, in Marvin Mendelson v. Alien Property & Casualty Ins. Co., No. 17-2165 (5th Judicial Dist. Ct. (Chaves Cty., N.M.) Nov. 20, 2018) held that Mendelson’s hypnosis treatment qualified for coverage, on the basis that his loss of memory was a loss of personal property.

Alien’s argument was that one’s memory is in no way “property.”  Specifically, memory is not tangible property, Alien argued, because it cannot be touched.  And it is not intangible property, the insurer maintained, because, even if it incorporeal and cannot be touched, and, thus, intangible, its ownership cannot be transferred and the holder of the memories has no rights in them.  Thus, memories are not intangible “property.”

The court agreed that memories are not intangible property, as they cannot be transferred and the holder of memories has no rights in them.  However, the court concluded that memories – at least some -- are personal property on the basis that they are tangible property.

The court put it this way: “Alien’s mantra, repeated over and over in its brief, is that memories cannot be touched, so, therefore, they cannot be tangible property.  However, the flaw in Alien’s argument is the memories are things in life that we hold onto.  See Taylor Swift, “New Year’s Day,” Reputation, Big Machine Records (2017) (“Hold on to the memories, they will hold on to you.”).  If memories are things we hold onto, then, by definition, they are touched.”  Mendelson v. Alien P&C at 4.  In addition, the court noted that the policy provided coverage for “personal property owned or used by an ‘insured’ while it is anywhere in the world.”  The court stated that “anywhere in the world has no limits. Thus, it can include inside one’s head.”  Id. at 5.  

However, it was not a total victory for Mendelson.  The court concluded that not all memories are things we hold onto.  The court drew a distinction between memories of experiences, which are ones that people hold onto, and memories of facts, which are not.  Thus, Alien’s policy would provide coverage for hypnosis treatment to restore Mendelson’s memory of lifetime experiences, such as family events, trips, holidays, friendships and school experiences.  But it would not provide coverage to restore Mendelson’s ability to state, verbatim, the entire dialogue of eleven episodes of Star Trek, including the classic “Trouble With Tribbles.”  Thus, it would be necessary for the hypnotist to allocate his or her time spent providing treatment to restore these two types of memories.


That’s my time. I’m Randy Spencer. Contact Randy Spencer at

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