Opinion
No. 1:02-cv-231, No. 1:02-cv-298, No. 1:03-cv-083
March 12, 2004
MEMORANDUM AND ORDER
Currently pending before the Court is the motion of Turner Funeral Home and the individual defendants ("the Turner defendants") for reconsideration of this Court's December 12, 2003 memorandum and order [Court File No. 69]. The Turner defendants seek reconsideration of that aspect of this Court's December 12, 2003 memorandum and order which found that Trinity had no duty to defend or indemnify the Turner defendants under the four Professional Liability Policies which Trinity Universal Insurance Company ("Trinity") issued to Turner against the plaintiffs' claims of mental anguish/emotional distress in the underlying actions. [Court File No. 70]. Trinity has responded to the Turner defendants' motion to reconsider [Court File No. 71]. Consequently, the motion of the Turner defendants for reconsideration of this Court's December 12, 2003 memorandum and order is now ripe for review.
At the outset, it should be noted that the Turner defendants have not specified in their motion to reconsider whether their motion seeks reconsideration under Fed.R.Civ.P. 59(e) or Fed.R.Civ.P. 60(b). However, in this instance because the motion to reconsider was filed on March 3, 2004 [Court File No. 69], more than ten days after this Court's memorandum and order of December 12, 2003, the Turner defendants' motion to reconsider must be construed as a Rule 60(b) motion. White-Bey v. McMeekin, 198 F.3d 248, 1999 WL 1045106 at * 1 (6th Cir. Nov. 10, 1999)(unpub.) (citing Peake v. First Nat'l Bank and Trust Co., 717 F.2d 1016, 1019-20 (6th Cir. 1983). "Any post-judgment motion that asks for relief other than correction of a purely clerical error and which is filed more than ten days after entry of judgment is construed as a Rule 60(b) motion." Bragg v. Perez, 42 Fed. Appx. 678, 680 (6th Cir. May 7, 2002), cert. denied, 537 U.S. 1216, 123 S.Ct. 1316(2003).
A Rule "60(b) motion, which allege[s] legal error, must be based on Rule 60(b)(1), mistake, inadvertence, surprise, or excusable neglect, or on Rule 60(b)(6), for `any other reason justifying relief.'" Phipps v. Com. of Ky. Natural Resources and Environmental Protection Cabinet, 980 F.2d 730, 1992 WL 358480 at ** 2 (6th Cir. 1992)(unpub.). A Rule 60(b)(1) motion for reconsideration which is based on legal error must be brought within the normal time for the taking of any appeal. Braggs, 42 Fed. Appx. at 680 (citing Fed.R.App.P. 4(a)(1)). Under Fed.R.App.P. 4(a)(1)(A) in a civil action, a notice of appeal must be filed within 30 days of the judgment or order from which an appeal is sought to be taken. The Turner defendants' motion to reconsider was not filed within this time frame. Furthermore, Rule 60(b)(6) permits a court to grant relief from a judgment or order "only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule." Id. (citing Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989)).
Regardless of the timeliness of the Turner defendants' motion to reconsider for purposes of Fed.R.Civ.P. 60(b)(1), the Court finds, after considering the pleadings of the parties, that the Turner defendants have established neither an error of law nor exceptional or extraordinary circumstances which would warrant the relief they seek in their motion to reconsider under either Fed.R.Civ.P. Rule 60(b)(1) or Rule 60(b)(6).
The principal Tennessee case relied on by the Tennessee defendants in their Rule 60(b) motion for reconsideration is Hill v. Travelers' Ins. Co., 294 S.W. 1097, 154 Tenn. 295 (1927). In Hill, the plaintiff sued the defendant for damages for mental anguish stemming from the "unauthorized mutilation of the body of her deceased husband." Id. at 1097. The plaintiff's deceased husband had been insured by Travelers' under a policy of accident insurance; and, she consented to Travelers' request for an autopsy on the body of her deceased husband "with the express stipulation that same must be done in a proper and decent way, that it must not be made in an open or public place, and that it must not involve the mutilation of the body." Id. Subsequently, the autopsy "was performed in an open space in the cemetery, in plain view of the nearby residences, and where the public might and did look upon the autopsy; and . . . parts of the vital organs, including the heart, were removed from the body and retained . . ." Id. The Supreme Court of Tennessee found that plaintiff had stated an action for mental anguish stemming from the manner in which the autopsy of her husband's body was performed. Id. 1098-99.
In its response to the Turner defendants motion to reconsider, Trinity states in pertinent part:
The Defendants misconstrue Trinity's position and the Court's holding with respect to coverage of the underlying plaintiffs' mental anguish claims. The Defendants argue that the claims for mental anguish are covered by Trinity's professional liability policies. Trinity has never disputed that its professional liability policies provide coverage for claims of mental anguish, but moved for summary judgment on the basis that those policies do not cover the mental anguish claims involved in the underlying cases because the underlying plaintiffs' mental anguish claims did not occur until after the policies were cancelled and during the pendency of another insurer's policies. The Court correctly held that the underlying plaintiffs' mental anguish claims fall outside the coverage period of Trinity's professional liability policies, and are therefore not covered . . .
[Court File No. 71].
Here, the Court agrees that Trinity has correctly stated this Court's findings of fact and conclusions of law in its December 12, 2003 memorandum and order and Trinity is also correct that the legal precedents cited by the Turner defendants in their motion to reconsider do not establish any legal error on the part of this Court in the December 12, 2003 memorandum and order.
In this Court's memorandum of December 12, 2003, the Court found that Trinity issued four Professional Liability Policies to Turner Funeral Home. [Court File No. 60, p. 2]. These policies were in effect during four different policy periods from September 15, 1997 to March 1, 2001. Id. The Court further noted that the first reports of the discovery of several hundred uncremated corpses on the grounds of the Tri-State Crematory in Noble, Georgia, began circulating in February 2003. Id. at p. 3. These corpses had been sent to Tri-State for cremation by various funeral homes, including Turner Funeral Home. Id.
Also in its December 12, 2003 memorandum the Court engaged in an extensive discussion in which it found that under Tennessee law "a quasi-property right in dead bodies vests in the nearest relatives, and arises from their duty to bury their dead." [Court File No. 60], p. 17 (citing Tinsley v. Dudley, 915 S.W.2d 806, 807 (Tenn.Ct.App. 1995)]. The Court further stated that under the law of Tennessee:
Interference with this "quasi-property right" of possession of a dead body for disposition is "an actionable wrong and a subject for compensation." Such an action is not "for the injury done to the dead body, but [is] for the wrong or trespass on the plaintiff's right to the undisturbed possession and control of the body, measured by the mental anguish and suffering of the plaintiff occasioned thereby."
[Court File No. 60, p. 17 (internal citations omitted) (citing Hill v. Travelers' Ins. Co., 154 Tenn. 295, 294 S.W. 1097, 1098 (1927)).
Furthermore, in its December 12, 2003 memorandum this Court found that the plaintiffs' claims for mental anguish/emotional distress stemming from the mishandling of their decedent's remains could not have accrued until they became aware of the mishandling of their decedent's remains. [Court File No. 60, p. 17-20]. The four professional liability policies issued by Trinity to Turner were cancelled effective March 1, 2001. The media reports about the discovery of uncremated remains at Tri-State began circulating in early 2002, some ten months after the cancellation of the Trinity policies. Because plaintiffs' claims for mental anguish/emotional distress did not accrue until after the cancellation of the professional liability policies, there was no coverage under the Professional Liability Policies for the claims of mental anguish/emotional distress brought in the underlying actions.
Likewise, there was no coverage under the businessowner's policies issued by Trinity to Turner for the plaintiffs' claims of mental anguish/emotional distress because those policies were also cancelled effective March 1, 2001. However, the Trinity businessowner's policies were replaced by a policy issued by National Grange Mutual Insurance Company ("NGMIC") for the policy period from March 1, 2001 to March 1, 2002. Id. at 23. Because the NGMIC policy was in effect in early 2002, when the plaintiffs' claims for mental anguish/emotional distress for the failure to properly cremate their decedent's remains began to accrue, coverage for those claims was provided by the NGMIC policy.
The cases cited by the Turner defendants in support of their motion for reconsideration [Court File No. 69, 70] focus on the issue of whether there can be insurance coverage for claims of mental anguish. However, the Court did not find in its December 12, 2003 memorandum that there could not be coverage under the Trinity Professional Liability Policies for mental anguish/emotional distress. Rather, the Court found there was no coverage under the Professional Liability Policies for mental anguish/emotional distress because those claims did not begin to accrue until approximately ten months, at the earliest, after those policies had ceased to be in effect. Thus, the cases cited in the Turner defendants' memorandum in support of their Fed.R.Civ.P. 60(b) motion to reconsider do not convince the Court that in its December 12, 2003 memorandum and order there was either legal error or exceptional or extraordinary circumstances which would warrant the relief they seek under either Fed.R.Civ.P. 60(b)(1) or 60(b)(b).
Accordingly, the Turner defendants' Fed.R.Civ.P. 60(b) motion to reconsider this Court's December 12, 2003 memorandum and order [Court File No. 69] is DENIED.
SO ORDERED.