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Gerstley v. Mayer

Superior Court of Delaware, New Castle

February 11, 2015

THOMAS J. GERSTLEY, JR., TRISHA J. COLLINGS, MARGARET D. GERSTLEY, JAMES R. WARRINGTON, and RUTH E. TAYLOR, Plaintiffs,
v.
FRANK MAYER, III, and SPICER-MULLIKIN FUNERAL HOMES, INC., Defendants.

Submitted: November 14, 2014.

Upon Consideration of Defendants' Motion for Summary Judgment GRANTED, IN PART, and DENIED, IN PART.

Upon Consideration of Defendants' Motion to Exclude the Expert Testimony of Richard Callahan - DENIED

Jonathan B. O'Neill, Esquire, Kimmel, Carter, Roman & Peltz, P.A., Newark, Delaware and Karen M. Enright, Esquire, McNabola Law Group, Chicago, Illinois, Attorneys for Plaintiffs.

Colin M. Shalk, Esquire, Casarino Christman Shalk Ransom & Doss, Wilmington, Delaware, Attorney for Defendants.

DAVIS, J.

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiffs Thomas J. Gerstley, Jr., Margaret D. Gerstley, Trisha J. Collings, James R. Warrington, and Ruth E. Taylor (collectively, the "Plaintiffs") filed a Complaint against Defendants Spicer-Mullikin Funeral Homes, Inc. (the "Funeral Home") and Frank Mayer, III based on the accidental cremation of their relative, Cora V. Foy. In the complaint, Plaintiffs assert claims for breach of express and/or implied contract, negligence, gross negligence and/or recklessness, and interference with the right to burial. Plaintiffs seek special damages, general damages, and punitive damages, including for pain and suffering, and emotional distress.

The Funeral Home and Mr. Mayer filed an Answer on January 3, 2013. Thereafter, the parties engaged in discovery. On January 27, 2014, the Funeral Home and Mr. Mayer filed Defendants' Motion for Summary Judgment (the "Summary Judgment Motion"). Plaintiffs filed an Answering Brief on March 17, 2014. On March 18, 2014, the parties entered a Partial Stipulation of Dismissal as to all claims against Mr. Mayer. As such, the Court understands that Mr. Mayer is no longer a defendant and the sixth point of the Motion will not be considered by the Court. On March 31, 2014, the Funeral Home filed a Reply Brief.

Additionally, on March 20, 2014, the Funeral Home and Mr. Mayer filed Defendants' Motion to Exclude the Expert Testimony of Richard Callahan (the "Motion to Exclude"). Plaintiffs responded on May 23, 2014.

A hearing was held on all of these motions on November 14, 2014. After the hearing, the Court took the Motion to Exclude and the Summary Judgment Motion under advisement.

For the reasons set forth below, the Summary Judgment Motion is GRANTED IN PART and DENIED IN PART, and the Motion to Exclude is DENIED.

II. FACTUAL BACKGROUND

In June 2011, the decedent, Ms. Foy, and her family contacted Mr. Mayer, and met with Mr. Mayer at Ms. Foy's residence to discuss her future funeral arrangements. Plaintiff Thomas Gerstley, Jr., Ms. Foy's grandson, and Plaintiff Margaret Gerstley, Ms. Foy's daughter-in-law and primary caregiver, were present during the meeting. When Mr. Gerstley asked Ms. Foy if she wished to be cremated, Ms. Foy responded "no." Mr. Mayer reiterated Ms. Foy's decision not to be cremated to her to ensure that he understood correctly. Ms. Foy arranged to be buried in a plot alongside her late husband.

Ms. Foy passed away from natural causes on August 7, 2011. Mr. Gerstley is Ms. Foy's sole personal representative. Ms. Foy is survived by Plaintiffs. All Plaintiffs are Ms. Foy's close relatives. Mr. Gerstley and Ms. Collings are Ms. Foy's grandchildren. Ms. Foy resided with Ms. Gerstley, who is Ms. Foy's daughter-in-law. Ms. Gerstley was also Ms. Foy's primary caregiver during the time period before her passing. Mr. Warrington and Ms. Taylor are Ms. Foy's surviving siblings.

On August 8, 2011, Ms. Gerstley, the Funeral Home and Mr. Mayer signed a contract laying out the basic services and procedures for the funeral, and for the preparation of Ms. Foy's body for burial. As was Ms. Foy's desire, the contract specifically stated that Ms. Foy would be embalmed. Cremation services were not involved. No one ever filled out the requisite form that would authorize the Funeral Home to cremate Ms. Foy.

On August 12, 2011, the date that Ms. Foy's funeral was scheduled to take place, Ms. Gerstley, Mr. Gerstley, and Ms. Collings went into a room to view Ms. Foy's body. At this time, Ms. Gerstley, Mr. Gerstley, and Ms. Collings discovered that the body lying in the coffin, wearing Ms. Foy's clothes and surrounded by Ms. Foy's pictures and jewelry was not in fact Ms. Foy. The casket contained the wrong body.

Mr. Mayer was present in the room and immediately realized that, instead of being embalmed, the Funeral Home had cremated Ms. Foy. It appears that on the day that Ms. Foy was brought to the Funeral Home, a second body was also brought to the Funeral Home. Mark Belmont, an employee of the Funeral Home, did not immediately tag the bodies of Ms. Foy and the other person as they came into the Funeral Home. Mr. Belmont then mixed up the tags, placing the wrong tag on Ms. Foy's body. As a result, the Funeral Home embalmed a person that was supposed to be cremated and cremated Ms. Foy who was supposed to be embalmed. Moreover, the Funeral Home buried the cremated remains of Ms. Foy, before her funeral, in the other person's burial plot.

Mr. Mayer presented Ms. Gerstley, Mr. Gerstley, and Ms. Collings with two options: postpone the service for one day or proceed, but with a closed casket. Ms. Gerstley, Mr. Gerstley, and Ms. Collings chose to proceed with the service that day. After the funeral, Mr. Mayer required Ms. Gerstley to execute a document stating that the cremation of Ms. Foy was approved. Ms. Gerstley did not wish to sign this document, but was told that she needed to execute it in order to have the remains exhumed. The Funeral Home then exhumed Ms. Foy's ashes, placed the ashes in an urn and prepared the ashes for another burial. On August 15, 2011, Plaintiffs attended a separate burial service where Ms. Foy's remains were buried in their proper place.

III. THE SUMMARY JUDGMENT MOTION

A. Parties' Contentions

1. The Funeral Home

The Funeral Home makes a number of arguments in support of the Summary Judgment Motion. The Funeral Home first contends that Ms. Gerstley, Ms. Collings, Mr. Warrington and Ms. Taylor, have no standing to bring claims arising from the right to burial of the decedent, including: interference with the right to burial, and negligent and/or careless mishandling of the body. Second, the Funeral Home also argues that Plaintiffs, as a whole, have failed to state a claim upon which relief can be granted.

Third, the Funeral Home claims that the breach of contract claims must be dismissed, as the Funeral Home did not charge Plaintiffs for the services, and the claims circumvent the Delaware statute providing rights for these causes of action. Fourth, the Funeral Home alternatively contends that the Court should dismiss the breach of contract claims of Ms. Collings, Mr. Warrington, Ms. Taylor and Mr. Gerstley for lack of standing because these parties were not party to the contract of burial.

Fifth, the Funeral Home contends that the gross negligence and recklessness claims for failing to follow Plaintiffs' instructions must be dismissed as they fail to state a claim ...


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