Jackson v. McKay-Davis Funeral Home, Inc.

Citations: 830 F. Supp. 2d 635; 2011 WL 5900782; 2011 U.S. Dist. LEXIS 135871Docket: Case No. 07-CV-1037

Court: District Court, E.D. Wisconsin; November 22, 2011; Federal District Court

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On November 21, 2007, Marlenea and Erica Jackson filed a lawsuit against McKay-Davis Funeral Home, Inc., Suhor Industries, Oklahoma Wilbert Vaults, and DHL Air Express, S.A., alleging breach of fiduciary duty, negligent handling of human remains, and negligent infliction of emotional distress related to the loss of Eric Jackson's cremated remains. An amended complaint on May 29, 2008, added Travelers Insurance Company and Hartford Casualty Insurance Co. as defendants and included a breach of contract claim against DHL. The case is under the jurisdiction of a United States magistrate judge due to the consent of the parties and is based on diversity jurisdiction, applying Wisconsin law. 

On December 23, 2008, the court granted partial summary judgment in favor of DHL regarding the plaintiffs' claims, and on November 23, 2010, it granted another partial summary judgment on the breach of contract claim against DHL, leaving only McKay-Davis and Travelers as defendants. On January 28, 2011, McKay-Davis filed a motion for summary judgment, arguing that Erica Jackson lacks standing and damages, asserting that only Marlenea Jackson can pursue the action as the surviving spouse. McKay-Davis also sought dismissal of the tort claims and punitive damages. The motion is fully briefed and will be addressed by the court. Additionally, the court noted that the summary judgment motion challenges the sufficiency of the amended complaint based on precedents set in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, which pertain to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

The court is addressing a motion for summary judgment filed by the defendant concerning the plaintiffs' breach of fiduciary duty claim. In this context, the court will evaluate the merits of the claim as a matter of law, rather than assessing the complaint's sufficiency. According to Federal Rule of Civil Procedure 56(c), summary judgment should be granted if the available evidence—including pleadings, depositions, and affidavits—demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Material facts are defined as those that could influence the lawsuit's outcome, while a genuine dispute exists only if a reasonable jury could favor the nonmoving party based on the evidence presented. The burden is on the movant to show that a trial is unnecessary, requiring both the absence of genuine material fact issues and entitlement to judgment. The court must view evidence in favor of the nonmoving party, meaning summary judgment is inappropriate if the court needs to make inferential choices, as such determinations are reserved for a jury. Furthermore, affidavits submitted for summary judgment must include facts admissible as evidence, and hearsay is not permissible under the Federal Rules of Evidence. Therefore, any proposed fact findings lacking admissible evidence will be excluded. 

Regarding the relevant undisputed facts, Eric Jackson died on July 8, 2006, in Oklahoma City and was survived by his wife, Marlenea Jackson, and their minor daughter, Erica. Following his death, Marlenea contracted McKay-Davis funeral home for services but opted for cremation instead of burial to fulfill her daughter's wish to bring her father home. McKay-Davis provided specific funeral-related services, including body pickup, embalming, and preparation for viewing.

McKay-Davis, which does not conduct cremations, outsourced the cremation and shipment of Eric Jackson’s remains to Suhor, a third-party crematory. Marlenea Jackson signed an Authorization for Cremation at McKay-Davis, specifying that the cremated remains should be shipped to her home. The document did not explicitly state that Suhor would handle the shipping. McKay-Davis charged Marlenea Jackson $60 for this service. Ms. Davis, a representative of McKay-Davis, communicated with Suhor regarding the shipment, and informed Marlenea that Suhor would manage the cremation and shipping, although Marlenea had no prior contact with Suhor.

On July 18, 2006, Ms. Davis sought an authorization to split the cremated remains for Eric Jackson’s mother, and she signed a Release of Cremated Remains form, assuming liability for any related damages without having read the release. The cremation occurred that same day, with McKay-Davis retaining half of the remains. Suhor arranged for DHL to ship the remaining half to the plaintiffs’ home on July 19, 2006, while Marlenea was out of town. She was not notified of the shipment and intended to be home for the delivery. By July 24, 2006, having not received any updates, she contacted Ms. Davis for information.

The defendant moved for summary judgment to dismiss plaintiff Erica Jackson for lack of standing, arguing that only Marlenea, as the surviving spouse, had the right to pursue claims and that Erica could not demonstrate damages or emotional harm from the loss of her father's ashes. The plaintiffs countered that Erica has standing due to emotional damage and being a third-party beneficiary of the contract between her mother and McKay-Davis. The legal principle of standing is described as an essential requirement of the case-or-controversy doctrine under Article III.

To establish Article III standing, a party must prove: (1) an injury in fact, which is concrete, particularized, and actual or imminent; (2) a causal link between the injury and the conduct in question; and (3) that the injury is likely to be remedied by a favorable ruling. These elements constitute the constitutional minimum for standing. Courts may also impose prudential limits on standing, such as prohibiting a party from asserting another's legal rights, barring generalized grievances, and requiring that a plaintiff’s claim falls within the interests protected by the relevant law. 

Wisconsin courts have yet to address standing in tort claims concerning the mishandling or disturbance of deceased individuals' remains. Jurisdictions differ on this issue; some courts limit standing to those with the legal right to control the body’s disposition, asserting that only they can bring claims for interference. In contrast, other courts grant standing to anyone to whom the defendant has a recognized legal duty, particularly in cases involving emotional harm, challenging the quasi-property rights perspective. The court will analyze Wisconsin case law regarding negligent handling of human remains to determine the standing issue.

The Wisconsin Supreme Court established the legal right to entomb a deceased relative's remains intact in the 1905 case of Koerber v. Patek, where the court ruled that a son could claim damages for emotional distress due to the unauthorized removal of his father's stomach, preventing proper burial. The court recognized that the custodian of a deceased's body has a legal right to possession for preservation and burial, asserting that interference with this right constitutes an actionable wrong. The court emphasized that those with the closest personal relationships to the deceased, particularly the surviving spouse, hold the primary right to custody and burial, while leaving open whether multiple family members could join in a lawsuit.

In 1980, the court reaffirmed this principle in Scarpaci v. Milwaukee County, clarifying that the family has a legally recognized right to entomb remains without mutilation and can claim against wrongful acts affecting the corpse. The ruling highlighted that the right to bury the dead is foundational to civil liberty and public decency, focusing on emotional suffering rather than physical injury to the remains. The court rejected a quasi-property rights framework, suggesting that standing to sue should extend beyond the legal custodian to any living family member who experiences emotional or physical distress due to the defendant's actions.

Adopting a duty-based approach addresses issues related to Erica Jackson's status as a minor. In the case of Christensen, the California Supreme Court ruled that the ability to recover for negligent infliction of emotional distress was not restricted to those with a statutory right to control the disposition of remains or those who contracted for such services. The court noted that legal rights do not reliably indicate who may experience the most emotional distress from the mishandling of remains. Similarly, in Boorman, the court permitted family members without legal rights of disposition to sue for emotional distress after discovering improper actions regarding a deceased relative's organs. Both cases highlighted that those not holding legal rights may suffer equal or greater emotional harm, suggesting that there is no justification for allowing recovery for one individual while denying it to another with similar interests.

While concerns exist about potentially increasing the number of claimants, courts like those in Christensen and Boorman have limited standing to a specific class of individuals—namely, close family members aware of the funeral or cremation process. The Christensen court specified that plaintiffs must be individuals to whom the defendant owed a legally recognized duty. Boorman echoed this by allowing actions for emotional distress from negligent handling of remains for family members who were aware of the death and related services. Public policy considerations further restrict recovery, as a plaintiff must also meet the other elements of negligent infliction of emotional distress under Wisconsin law, including establishing a legal cause, which may lead to a court denying recovery based on the specifics of the case.

Cases following the quasi-property theory differ from the current case, which does not involve unauthorized acts related to body disposition. Generally, such cases involve acts like unauthorized autopsies or organ harvesting, necessitating that only the person with legal disposition rights can make related decisions. Allowing broader standing could lead to conflicts among next of kin regarding body disposal methods. The court references Whaley and Aetna Life Ins. Co. v. Lindsay to support this limitation. However, unlike those cases, there is no dispute between the plaintiffs here, allowing the court to consider standing beyond the legal right of disposition holder. Under Wisconsin law, standing is granted to "living kin" who experienced emotional or physical injury, and Erica Jackson, as the minor daughter, qualifies. Whether she suffered such injury is a factual question for determination.

The defendant's motion for summary judgment to dismiss Erica for lack of standing is denied. The defendant also argues that Erica has not established a tort claim due to a lack of proof of damages, noting her medical records do not indicate emotional distress from the lost ashes, as claimed by her therapist. The plaintiffs counter with testimony from their expert, Dr. William Lamers, which the defendant challenges as inadmissible under the Daubert standard, a challenge raised only in the reply brief and thus not considered by the court. The question of whether Erica experienced emotional harm remains a factual matter, leading the court to deny the defendant's summary judgment motion regarding her tort claims.

Additionally, the defendant contends that the plaintiffs' breach of fiduciary duty claim fails because no fiduciary relationship was established, arguing that a funeral services agreement does not create such a relationship in Wisconsin or other relevant jurisdictions.

Mrs. Jackson is alleged to have maintained control over confidential decision-making, with the defendant's obligations not extending to cremation and shipping responsibilities. The plaintiffs argue that a fiduciary duty arose when Mrs. Jackson entrusted her husband’s remains to the defendant, asserting that this relationship was established as McKay-Davis accepted control and agreed to return the remains for proper burial. They contend that there was an imbalance of bargaining power and that they placed significant trust in the defendant, which the defendant acknowledged was for the plaintiffs’ benefit. Wisconsin law lacks specific cases addressing whether funeral homes or crematories owe fiduciary duties to bereaved clients, prompting both parties to reference foreign case law. The court must first evaluate Wisconsin law on fiduciary duties. To prove a breach of fiduciary duty in Wisconsin, plaintiffs must establish (1) the existence of a fiduciary duty, (2) its breach, and (3) resultant damages. A fiduciary is defined as one in a position of authority concerning another’s affairs, with fiduciary duties arising either from formal contracts or implied legal obligations based on the parties' relationships. While contractual agreements can create fiduciary duties, a contract alone is insufficient; trust and confidence must also be present, along with factors indicating inequality or dependence between the parties.

A fiduciary relationship was not established between the parties. The plaintiffs failed to provide supporting arguments or authority to substantiate their claim that such a relationship arose when McKay-Davis took control of Eric Jackson's remains for burial. They argued that there was an imbalance in bargaining power due to unequal knowledge and Mrs. Jackson's lack of business acumen, but offered no evidence to back this assertion. This claim is further undermined by an Authorization signed by Mrs. Jackson, which allowed her to decide how to receive her husband's cremains, indicating she retained control. The relationship was found to resemble a typical interaction between a bereaved spouse and a funeral home, not a fiduciary one. The court's conclusion aligns with substantial legal precedent, which consistently rules that funeral homes do not owe a fiduciary duty to their clients. Notable cases include Gakin v. City of Rapid City and In re Tri-State Crematory Litigation, both affirming that trust alone does not create a fiduciary duty. Additionally, the court noted that recognizing a fiduciary duty in every instance where one party trusts another would blur the lines between breach of contract and breach of fiduciary duty, a distinction supported by law. Therefore, the court ruled that no fiduciary duty existed, granting the defendant's motion for summary judgment on that claim and considering their requests for summary judgment on allegations of negligent handling of remains and infliction of emotional distress.

The court will address overlapping claims of negligent infliction of emotional distress and negligent handling of human remains together. The defendant argues that Wisconsin and Oklahoma law do not recognize a standalone claim for negligent handling of human remains unless emotional distress is accompanied by physical injury or involves willful misconduct. The defendant asserts that the plaintiffs cannot establish a duty of care since it did not handle the remains after they left the funeral home, claiming its duty ended upon paying for cremation and shipping. In contrast, the plaintiffs argue that under Wisconsin law, everyone has a duty to exercise ordinary care in their activities, including the shipping of cremated remains. They contend that Wisconsin law allows recovery for mental anguish in cases of disturbed burial rights and assert that negligence issues should typically be resolved by a jury, opposing the defendant's motion for summary judgment on claims they deem repetitive. The plaintiffs reference the Wisconsin Supreme Court's recognition of the right to properly entomb remains, which permits recovery for mental suffering as an independent damage element, though originally limited to willful misconduct. Wisconsin later recognized claims for negligent infliction of emotional distress linked to physical injury, indicating a legal evolution in this area.

In Scarpaci, the Wisconsin Supreme Court determined that a complaint alleging negligent interference with human remains constituted a valid claim, as it asserted that the plaintiff experienced significant emotional distress resulting in physical injury. Subsequent cases established that claims for infliction of emotional distress due to negligent handling of human remains required proof of severe emotional distress alongside physical injury. However, Wisconsin law has evolved, particularly with the Bowen case, which removed the necessity for accompanying physical injury in negligent infliction of emotional distress claims. Bowen outlines that plaintiffs must demonstrate three essential elements: (1) the defendant’s conduct was negligent, (2) the plaintiff suffered severe emotional distress, and (3) the defendant’s action was the cause-in-fact of the injury. The court emphasized that while these elements are critical, public policy considerations may also preclude a case from advancing to trial. Wisconsin law holds that every individual has a duty of ordinary care, and negligence is assessed based on foreseeable risks posed to anyone. The determination of a defendant's liability hinges on public policy rather than duty, and if public policy questions arise, courts may resolve them during summary judgment. Factors influencing the limitation of liability include the remoteness of the injury from the negligence, the proportionality of the injury to the culpability of the tortfeasor, and the potential for fraudulent claims, among others. Courts may also deny liability as a matter of law if imposing it would shock societal conscience.

Negligent infliction of emotional distress requires a contemporaneous sensory perception of a sudden, traumatic event. Claims can arise in various factual scenarios, including bystander claims, which involve emotional distress from witnessing a tortfeasor's negligent action causing harm to a third party. In the case of Bowen, the court identified three prerequisites for bystander claims: 1) the victim must be seriously injured or killed, 2) the plaintiff must be a close family member of the victim, and 3) the plaintiff must have observed the extraordinary event. However, public policy considerations can bar claims even if these elements are met.

Additionally, plaintiffs can pursue direct or participant claims if they are directly threatened by or involved in the negligent conduct. In these situations, the analysis focuses solely on the six public policy factors relevant to negligence cases. The status of negligent handling of human remains claims remains uncertain, as historical cases required proof of wanton conduct or physical manifestation of mental suffering, though the Bowen decision has since removed the latter requirement. Consequently, plaintiffs must establish negligence, causation, injury, and legal cause in such cases, aligning with the framework established in Bowen.

The determination of whether the claim for negligent infliction of emotional distress is a direct or bystander claim is crucial, as it influences the legal analysis. Plaintiffs are not required to demonstrate physical injury. The defendant asserts that the claim is a bystander claim, arguing that the plaintiffs cannot meet two of the three required elements outlined in Bowen. The defendant claims the emotional distress arose from negligent conduct related to the handling of the decedent's remains, rather than direct harm to the plaintiffs. Conversely, the plaintiffs argue that they suffered direct emotional harm due to the defendant's actions.

The court finds difficulty in categorizing the loss of ashes as a severe injury, as the deceased could not experience physical pain from this loss, leading to the conclusion that the case should be treated as a direct claim. This decision aligns with Regge v. Sunset Memory Gardens, where a similar claim was also treated as direct despite the plaintiff not witnessing the negligent act. Additional support for this approach is found in cases from other jurisdictions, which indicate that a plaintiff need not observe the negligent act to bring forth a claim related to the handling of human remains. The court expresses concern that treating the case as a bystander claim could create an unreasonable immunity for mortuaries, preventing recovery for those suffering significant emotional distress.

Having established the claim as direct, the court will apply the first part of the Bowen framework, focusing on negligence analysis, which hinges on whether the conduct foreseeably creates an unreasonable risk to others. In Wisconsin, negligence is defined by the foreseeability of resulting injury from an act or omission.

In Wisconsin, the foreseeability of a specific injury or person harmed is not a prerequisite for establishing negligence. To establish a valid negligence claim, plaintiffs must demonstrate four elements: 1) a duty of ordinary care owed by the defendant, 2) a breach of that duty, 3) causation, and 4) actual loss or damage. The Wisconsin Supreme Court has defined the duty to exercise ordinary care as acting in a manner that a reasonable person would recognize as avoiding unreasonable risks of injury or damage. Ordinary care incorporates foreseeability; a reasonable person should anticipate potential injuries resulting from their actions. The determination of whether a breach occurred depends on the reasonableness of actions taken or omitted under the specific circumstances. Courts may rule on the existence of a duty as a matter of law, especially in business contexts where contractual obligations help delineate the duty of ordinary care. In the case at hand, the defendant was contracted to perform funeral services for Mrs. Jackson, including shipping her husband's cremains to her home in Wisconsin. The signed Statement of Funeral Goods and Services Selected does not limit the defendant’s obligation regarding the shipment. The Authorization for Cremation form specifies that the funeral home should ship the cremated remains, but does not clarify if Suhor, rather than McKay-Davis, would be responsible for shipping. Additionally, requiring a signature upon delivery is intended to prevent losses, making it foreseeable that the lack of a signature could lead to loss of the cremated remains.

The foreseeability of severe emotional distress is not pivotal; rather, it suffices that some injury is foreseeable. A duty of ordinary care in shipping is established unless it can be shown that this duty ended when the defendant paid a third party, Suhor, to handle cremation and shipping. The determination of whether this duty ceased hinges on agency law, which has not been adequately addressed in the parties’ submissions. The Authorization for Cremation lacks clarity regarding signatures and agency representation, complicating the court's ability to conclude on the defendant's duty to Mrs. Jackson.

The court emphasizes the necessity of analyzing the four elements of actionable negligence prior to addressing public policy limitations on liability. Given the complexity and confusion in the presented facts, the case is not suitable for pretrial public policy analysis. Thus, the court defers the determination of legal causation until the liability issue is resolved at trial. The defendant's failure to meet the burden of proof leads to the denial of its motion for summary judgment concerning the plaintiffs’ claims of negligent handling of human remains and emotional distress.

Regarding punitive damages, the court finds that the question of whether there is sufficient evidence to warrant such damages should be considered post-trial, after the jury has been presented with the case. Consequently, the defendant's request for summary judgment on punitive damages is denied as premature.

The court orders: the denial of the defendant’s motion for summary judgment in part; the rejection of the motion to dismiss Erica Jackson as a plaintiff; the grant of the motion to dismiss the breach of fiduciary duty claim; and the denial of the motion to dismiss the claim for negligent handling of human remains.

The defendant's motions for summary judgment to dismiss the plaintiffs' claims for negligent infliction of emotional distress and punitive damages have been denied. The plaintiffs' claims stem from the allegation that they did not receive Mr. Jackson's cremains, which were left unattended on their doorstep. Both parties failed to provide facts regarding the loss of the remains in their proposed findings. The Wisconsin Court of Appeals previously declined to address the standing of individuals without legal disposition rights in Holsen v. Heritage Mut. Ins. Co. The court ruled that the plaintiffs' complaint sufficiently stated a claim for interference with the common-law right of proper burial, assuming the parents of the deceased minor child had the sole right of disposition. Notably, existing case law has not identified negligent handling of remains involving a minor child. The distinction between mortuaries and coroners is emphasized, with mortuaries having a voluntary duty to prepare remains competently, while coroners have a legal obligation to prevent negligent interment or cremation. The defendant filed the summary judgment motion on January 28, 2011, after receiving the plaintiffs' expert report from Dr. Lamers on January 13, 2011. The plaintiffs argue that the defendant's claim of lacking a report is unfounded, as they cross-examined Dr. Lamers shortly before. Furthermore, the plaintiffs claim that Okla. Stat. tit. 59. 396.2(6) creates a duty for funeral services until the body is released, but the court disagrees, indicating that the statute does not impose such a legal duty and is not applicable under Wisconsin law. Even if considered under Oklahoma law, the cited provision merely defines "funeral directing" without establishing any legal obligations for funeral homes.