Several years ago the author was an expert witness in a medical malpractice case. A baby was stillborn and the doctor tried to cover up the evidence by placing the remains in a closet. The doctor then arranged for a local funeral director that worked with the hospital to quickly pick up the remains and have them interred in an unmarked baby area in a religious cemetery. The funeral director did not file anything with the state vital statistics office or obtain a burial permit. The funeral director was also sued and during a deposition his defense was he did not charge for the service so he did not have to comply with any state or local laws. His insurance company quickly settled the case.
    Recently, in an unpublished opinion in the case of Lundsford v. Cravens Funeral Home, Inc. 205 WL 3875753, the Supreme Court of Appeals of West Virginia dealt a appeal of a lower court decision granting a motion to dismiss some of the claims filed by the Defendant. The primary Plaintiff was the spouse of the deceased who had entered into a funeral contract with the Defendants. The spouse paid a down payment representing a small portion of the cost for the funeral services and other members of his family made small contributions. However, most of the cost for the funeral services was paid by the State of West Virginia in connection with its burial assistance program. The spouse and family had requested a “Christian burial” that included embalming and a casket.
    The primary issue before the court was whether other family members had standing to sue as third party beneficiaries of the contract. The Court held that in West Virginia the family did not have standing and the Court did not adopt the references to cases in other states provided by the Plaintiffs’ attorney. While this position is of interest, the primary subject of this article is the allegations made by the Plaintiffs about the bad funeral services provided and statements made by the Defendant that in the author’s opinion led to this litigation.
    According to the facts stated in the opinion, the Plaintiff alleged the Defendant treated them with disrespect and contempt. The body of the deceased smelled, her hair could not be combed and there was blood in her nose and ears. In addition, they were not allowed to conduct the full service that was planned. They also alleged that when they complained the response was the funeral home was losing money by providing services for this “welfare funeral” and the time for the services was therefore limited
    This case will continue because the spouse still has rights, though the author would not be surprised if the case is settled. The author has often stated both in presentations and articles that anyone involved in the industry should provide the same level of services in connection with any funeral or cemetery arrangements that they are obligated to provide. There is no reason to do otherwise and as this case illustrates the failure to provide quality services can lead to expensive and time-consuming litigation.
    This article is for the information of subscribers and does not constitute legal advice. All subscribers should accordingly consult with their own attorney to make sure they are in compliance with the legal requirements for their own companies in the states where they operate.