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Green v. House of Wright Mortuary, Inc.

Superior Court of Delaware, New Castle County
Nov 17, 2005
C.A. No. 02C-11-242 MMJ (Del. Super. Ct. Nov. 17, 2005)

Opinion

C.A. No. 02C-11-242 MMJ.

Submitted: August 15, 2005.

Decided: November 17, 2005.

Lois J. Dawson, Esquire, Wilmington, Delaware, Attorney for Plaintiffs.

Robert K. Pearce, Esquire, Ferry, Joseph Pearce, P.A., Wilmington, Delaware, Attorneys for House of Wright Mortuary, Inc. and Robert O. Wright.

Dennis B. Phifer, Esquire, Wilmington, Delaware, Attorney for The Independent Order of Odd Fellows Eden Lodge #34, the Independent Order of Odd Fellows Lodge #1, and The Grand Lodge of Delaware I.O.O.F., Inc. And Walter Mateja.


MEMORANDUM OPINION


This case was brought by Elena and Crystal Green when they discovered that Susie Green's body is not buried where it should have been. The deceased is the daughter of Elena and the mother of Crystal. The defendants all are affiliated in some manner with the Riverview Cemetery. Plaintiffs seek monetary damages for negligence, breach of contract, negligent infliction of emotional distress, intentional infliction of emotional distress, and abuse of a corpse.

Presently pending before the court are the following motions: Odd Fellow Defendant Walter Mateja's Motion for Summary Judgment; House of Wright Mortuary, Inc.'s and Robert O. Wright's Motion for Summary Judgment; Plaintiffs' Motion in Limine Against Defendant House of Wright and Robert O. Wright; House of Wright Mortuary, Inc.'s and Robert O. Wright's Motion in Limine, and Plaintiffs' Motion in Limine Against Walter Mateja.

PROCEDURAL AND FACTUAL CONTEXT

The Independent Order of Odd Fellows ("Order") is an international organization. It was established in Europe in 1600 A.D. The Order was established in America in 1730, and in Delaware in 1830.

The structure and governance of the Order in America is much like that of a federation. Though there is a unifying charter, constitution and code of laws, each member lodge is afforded relative autonomy in managing its own affairs.

In Delaware, each individual member lodge is subordinate to the state Grand Lodge. The Grand Lodge of the State of Delaware is, in turn, subordinate to the Sovereign Grant Lodge of the Order located in Winston-Salem, North Carolina. Both the Grand Lodge and the Delaware subordinate lodges derive their tax exempt status through membership in the Order.

At its peak, the Odd Fellows ranks numbered more than 6,000 in Delaware alone. Today, it has 443 members. The average age of an Odd Fellow in Delaware now exceeds 70 years.

In 1872, certain of the Odd Fellows lodges in Delaware, along with certain member lodges of another fraternal organization in Pennsylvania, known as the Knights of Pythias, acquired 77 acres of land in North Wilmington and formed the Riverview Cemetery Company of Wilmington, Delaware ("Cemetery"), a Delaware corporation. Initially, ownership of the Cemetery was set up as a for-profit stock company. In 1972, the Cemetery was converted to a nonprofit, tax-exempt organization. Today, stock in the Cemetery is owned by three entities: Delaware Lodge No. 1 of the Independent Order of Odd Fellows (115 shares); Eden Lodge No. 34 (5 shares); and Grand Lodge of the Knights of Pythias (80 shares).

For nearly a century, the Cemetery was run primarily with volunteer labor. By the mid-1990s, costs associated with vandalism, and road and lawn maintenance exceeded available revenues and necessitated withdrawal from the Cemetery perpetual care fund. In some instances, money was transferred from the Odd Fellow Lodges and the Knights of Pythias to the Riverview Cemetery. The day-to-day operations of the Cemetery were managed by a paid staff of two. This husband and wife team was terminated in 1999. Cemetery employees were paid in cash. If a check was written, it was made payable to cash.

Walter Mateja was a member of Delaware Lodge No. 1. In March 1997, Mateja joined the Cemetery Board of Trustees, serving as secretary and treasurer of the Board. His primary duties were to take minutes at Board meetings and to review the finances of the Cemetery.

In late summer 1997, Mateja agreed to succeed Richard Boates (a member of the Knights of Pythias) as Executive Director of the Cemetery. Whether Mr. Mateja was compensated for his services as secretary and treasurer, and later as Executive Director, is a disputed matter. Mateja claims that he served purely as an uncompensated volunteer in all positions, while the plaintiffs seek to prove that during all times relevant to this case, Mateja was compensated. In 1999, one of the lodges gave Mateja $1,000 for his work at the Cemetery. Mateja claims that amount was a donation from Delaware Lodge No. 1.

In 1999, the Board of Trustees for the Cemetery voted to seek a purchaser for the Cemetery. On June 4, 2001, Riverview Cemetery filed for bankruptcy protection under Chapter 7 of the United States Bankruptcy Code. Mateja resigned from his position as Executive Director of the Cemetery approximately two months before the Cemetery filed for bankruptcy. Mateja filed a claim as a creditor, stating that he was owed $90,000 in wages. In this action, Mateja claims that he had no expectation of obtaining relief because the Cemetery had no assets. Rather, he simply asserted the claim based on the advice of the bankruptcy counsel for the Cemetery.

The Chapter 7 Bankruptcy Trustee determined to abandon the real property of the Cemetery on the grounds that maintenance was burdensome and the asset was of inconsequential value to the estate. On January 29, 2002, the real property of the Cemetery was transferred to a newly-created nonprofit tax-exempt organization known as Riverside Gardens, Inc., affiliated with the Restoration Fellowship Church ("Church"). The Church is immediately adjacent to the Cemetery grounds. The transfer of the real property was conditioned on receipt of monetary gifts, placed in trust for the "care, maintenance and operation" of the Cemetery grounds. The donors were the Knights of Pythias, Delaware Lodge No. 1 and Eden Lodge No. 34. Those donations, and the subsequent transfer of the Cemetery real property to Riverside Gardens, also brought about a dismissal with prejudice of a civil complaint filed by the Delaware Attorney General's Office against the Cemetery, the Grand Lodge of the Independent Order of Odd Fellows, Delaware Lodge No. 1, Independent Order of Odd Fellows, and Eden Lodge No. 34, Independent Order of Odd Fellows.

On December 13, 1998, Susie C. Green, the mother of plaintiff Crystal Green and the daughter of plaintiff Elena Green, died of natural causes. Susie Green was buried on December 19, 1998. The House of Wright Mortuary, Inc., ("Mortuary") handled the arrangements to have Susie C. Green interred at the Cemetery.

Elena Green claims that she signed a contract with the Mortuary, in which the Mortuary agreed to locate the burial plot, prepare a funeral program, and provide transportation to the Cemetery, and other services. Elena Green spoke with the funeral director, Robert Wright, at his office. She requested that her daughter be buried close to her brother, Jimmy Green, and her sister, Eloise Alls. Robert Wright, Wright's son, and two workers attended the burial services at the Cemetery. Elena Green did not remain to see Susie Green lowered into the ground. Cemetery records indicate that the deceased was buried in Section 108, Lot G, Position 076.

In the course of the disinterment of another decedent at the Cemetery, it became apparent that the burial site assigned to Susie C. Green in the Cemetery interment records was occupied by another coffin. Crystal Green and Elena Green concluded that Susie C. Green's body was misplaced.

On November 16, 2001, an attempted disinterment of Susie Green's body was made. It was confirmed that Susie Green was not buried in Section 18, Lot G, Position 076. A later attempted disinterment of Eloise Alls, Elena Green's sister, revealed that Ms. Alls also was not laid to rest in the grave designated by the Cemetery. Ms. Alls in not a subject of this suit.

On December 9, 2002, plaintiffs Crystal Green and Elena Green filed suit against Delaware Lodge No. 1, Independent Order of Odd Fellows, Eden Lodge No. 34, Independent Order of Odd Fellows, the Grand Lodge of Delaware, Independent Order of Odd Fellows, Walter Mateja, Billy Cromer, the Knights of Pythias, the House of Wright Mortuary, Inc., Robert O. Wright and the Riverview Cemetery Company of Wilmington, Delaware. The complaint alleges various counts of negligence, breach of contract, negligent infliction of emotional distress, intentional infliction of emotional distress, and abuse of a corpse.

On June 21, 2005, the Court granted summary judgment in favor of the Knights of Pythias. At a hearing on August 3, 2005, the Court granted the motions for summary judgment of the Grand Lodge of Delaware, Independent Order of Odd Fellows, Delaware Lodge No. 1, Independent Order of Odd Fellows, Eden Lodge No. 34, Independent Order of Odd Fellows, and Billy Cromer. The Court reserved decision on the motions for summary judgment of Walter Mateja, House of Wright Mortuary, Inc., and Robert O. Wright.

STANDARD OF REVIEW

Summary judgment is appropriate when the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. In considering the motion, the Court must evaluate the facts in the light most favorable to the non-moving party. Summary judgment will not be granted under circumstances where the record reasonably indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances. When a motion for summary judgment is made and supported as provided in Superior Court Civil Rule 56, the opposing party may not rest on mere allegations or denials. The adverse party must set forth specific facts, by affidavit or otherwise, showing that there is a genuine issue for trial.

Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

Id.

Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).

Super. Ct. Civ. R. 56(e).

ANALYSIS Walter Mateja's Motion for Summary Judgment

The Delaware Volunteer Immunity Statute provides:

No volunteer of [a not-for-profit] organization shall be subject to suit directly, derivatively or by way of contribution for any civil damages under the laws of Delaware resulting from any negligent act or omission performed during or in connection with an activity of such organization.

The salient question is whether Walter Mateja was compensated for his services at the Cemetery and/or had any reasonable expectation of compensation at the time he provided the services. If he was neither compensated nor had any expectation of compensation, the Delaware Volunteer Immunity Statute precludes any action against him in connection with services he performed for the Cemetery. The Plaintiffs have not alleged any facts supporting a claim that Mateja's conduct was willful and wanton or grossly negligent. Such conduct would remove the Statute's protections.

Plaintiffs contend that Mateja either received some compensation or had a contingent entitlement to compensation. sIt is undisputed that certain of the Cemetery's bylaws permit officers and trustees to be paid a nominal sum for services rendered to the Cemetery. However, there is no evidence contradicting Mateja's sworn statement that he never received such compensation. The fact that the previous Executive Director may have been compensated does not raise a genuine issue of material fact refuting Mateja's testimony.

On December 20, 1999, Delaware Lodge No. 1 voted "to donate $1,000.00 to Walt Mateja in recognition and appreciation for his dedication to Odd Fellowship and recognition of his service to Riverview Cemetery." The matter was considered outside Mateja's presence. Even assuming that the one-time $1,000 payment in 1999 was compensation for purposes of the Statute, the allegations of negligence as they relate to Mateja occurred in 1998. There is no evidence that Mateja had any reasonable expectation of compensation in 1998.

The Cemetery filed for Chapter 7 bankruptcy protection on June 4, 2001. The Chapter 7 Trustee declared the matter a "no asset" case. Nevertheless, Mateja filed a claim as a creditor of the Cemetery, representing that the Cemetery was indebted to him in the amount of $90,000 in unpaid salary. The amount was determined to be two-years' annual $45,000 salary, retroactive to January 1, 1999. During a meeting on February 17, 1999, the Cemetery's Board of Trustees considered that the position of Executive Director had become a "virtual full time plus" job. Mateja stated at the meeting that "the salary would be treated as a loan to the cemetery and any taxes due paid only at such time as the salary was actually paid."

It is not disputed that Mateja did not have any realistic expectation of receiving this salary under the Cemetery's financial condition in 1999. However, Plaintiffs argue that Mateja had a contingent expectation of becoming a paid employee. Even assuming the facts in the light most favorable to Plaintiffs, there is no genuine issue of material fact that Mateja was a paid employee of the Cemetery during the relevant time period. The Statute's definition of "compensation" does not include speculative contingencies or attenuated future salary expectations. In sum, Mateja was a volunteer.

Finally, Mateja cannot be liable to Plaintiffs for breach of contract. There is no evidence that Mateja was a party to any contract with Plaintiffs.

THEREFORE, Odd Fellow Defendant Walter Mateja's Motion for Summary Judgment is hereby GRANTED. Defendant Walter Mateja is hereby DISMISSED WITH PREJUDICE.

House of Wright Mortuary, Inc.'s and Robert O. Wright's Motion for Summary Judgment

Plaintiffs allege that House of Wright Mortuary, Inc. ("Mortuary") and Robert O. Wright ("Wright") were negligent in failing to assure that the body of Susie Green was placed in the assigned burial plot, and in failing to record the location of the actual burial site. Additionally, Plaintiffs claim that these facts give rise to causes of action against Mortuary and Wright for breach of contract, negligent infliction of emotional distress, intentional infliction of emotional distress, and abuse of a corpse.

In Allen v. The Riverview Cemetery Company of Wilmington, Delaware, et al., this court was presented with virtually identical facts. A body appeared to be lost in the Cemetery and the funeral director was House of Wright Mortuary. Judge Silverman held:

Del. Super., C.A. No. 01C-06-079, Silverman, J. (Dec. 19, 2003) (ORDER).

. . . Based on the undisputed evidence in the record, the Court is satisfied that the funeral director and his business met their contractual obligations to plaintiff when they delivered plaintiff's next of kin's remains to the cemetery for burial and left them at the place called for by the cemetery. That is what the funeral director was required to do by contract.
And to the extent that the record reveals what the noncontractual duties of a funeral director are, it appears, beyond dispute, that the funeral director met the noncontractual duties, as well.
In fact, the Court cannot point to any mistake by anyone up to the point that the funeral director left the coffin at the grave provided by the cemetery.
The only question with respect to the funeral director and the funeral home is whether, after they left the cemetery, they had a duty to obtain and maintain a record as to where the body was left at the cemetery.
I'm not satisfied that plaintiff has established that, at the time in question, there was either a contractual or noncontractual duty to maintain that record.
The Court appreciates that it might have been a better business practice. The Court appreciates that perhaps other funeral homes are doing that. The Court is not satisfied that there is expert testimony. And the Court finds that expert testimony is required on this point, to the effect that the funeral director and the funeral home were required to maintain records about where its customers were buried. I'll observe that the only relevance associated with any breach of the duty would go to the question of whether but for the failure to maintain a record about the body's location, would the body have been lost.
I'm not reaching the question of proximate cause here, although it is an open question as to whether it could be said that a theoretical breach of duty was the proximate cause of the body's disappearance.
So far, it appears that better recordkeeping on the funeral director's part might have reduced the possibility that the body would disappear. But the Court might be hard-pressed to say that but for the funeral director's failure to maintain a record — assuming that he had the duty to do that, which the Court says that he did not, under the circumstances, or at least it's not established that he had the duty — it is not clear that the breach of that hypothetical duty was a proximate cause of the damages.
The Court is prepared to enter summary judgment in favor of House of Wright Mortuary, Inc. And Robert O. Wright.

* * *

. . . But in knocking out negligence and contractual liability, by implication I've knocked out the negligent infliction of emotional distress, and there is no evidence of intent on the part of the funeral director. That is perhaps the weakest claim that could be found in the case. Whatever the funeral director did was not meant to cause harm to anyone, and there's nothing in the record to suggest otherwise. At worst, the funeral director was indifferent to his contractual obligations and his noncontractual duties. And I've explained whey the Court is satisfied on this record even if that was not the case; but if it were, there's certainly no evidence that there was any intent to do any harm.
And with respect to the negligent infliction of emotional distress, as I hinted at during the argument, in a case like this one, that claim is subsumed in the negligence claim itself. But I think, as I also made clear, so there's no doubt about it, the Court is very much leaving open the possibility that in another case if a funeral director's carelessness means that a body is lost, it may be that the funeral director will have to pay damages for that carelessness even if no one is physically harmed by it.

In this action, Plaintiffs presented Daniel M. Isard as an expert on the standard of care of a funeral director in the interment process. Isard has been a funeral home and cemetery operator, appraiser, lender and owner. Isard's expert qualifications are based on that experience and on his observations of "many businesses within the funeral and cemetery industry in the state of Delaware and throughout the United States," as well as interviews with persons operating funeral and cemetery businesses in Delaware. Isard opined that retention of a burial permit by the funeral director "is a very common standard of care, and if it would have been applied in this case, would have protected the consumer."

The court has several concerns about Isard's qualifications as an expert witness in this case. As in real property and trusts and estates, the laws of each jurisdiction, as well as the standards of care, may be unique to each locality. Other than certain discussions with and observations of other funeral directors, Isard does not appear to be qualified to opine as a expert on the standard of care applicable to Delaware funeral directors. Isard is not a licensed funeral professional in Delaware.

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (5-part test for determining admissibility of expert opinions).

Additionally, Isard's opinion can be read as evaluating the funeral director's conduct under a "best practices" test, rather that the legal standard of care. For example, Isard states that even when a cemetery has the legal duty to keep track of the burial location, "it is common for the funeral director to keep a copy of the burial permit in their files, for their own protection."

Further, the portion of Isard's opinion that purports to interpret Delaware law may not be appropriate for expert testimony. Delaware law provides:

When a death or a fetal death occurs or a dead body is found, the body shall not be disposed of until the burial/transit permit is completed. Said permit is required to accompany the body and is to be:
(1) Given to the sexton of the cemetery when the body is interred.
(2) Retained by the funeral director when the cemetery has no sexton.
(3) Retained with the ashes in cases of cremation, or by the funeral director if so desired.

Thus, the dispositive question is whether the Cemetery had a "sexton." If not, Mortuary and Wright were required by law to retain a burial permit, which should contain information confirming the location of the burial plot of the deceased. Section 3151 does not define the term "sexton". The common definition of "sexton" is the "church officer or employee who takes care of the church property."

Webster's Ninth New Collegiate Dictionary 1079 (1991).

The Delaware General Assembly granted the Department of Health and Social Services the authority to adopt regulations governing the care of the bodies of the deceased. One duly promulgated regulation provides assistance in interpreting the function of a sexton in the burial of bodies.

Section 2. Burial Permit Required

No manager, superintendent, caretaker, sexton, or other person in charge of any premises in which interments, entombment, cremations or other dispositions of any dead body are made, shall permit the interment, entombment, cremation or other disposition of such body unless it is accompanied by a burial or cremation permit or a temporary certificate authorizing burial signed by a licenses funeral director. Upon receipt of the burial permit, the person in charge of the premises or by the funeral director, if there is no person in charge, shall sign the permit and retain same as a permanent record of authorization for burial.

Department of Health Social Services, Division of Public Health, Regulations Governing Care and Transportation of the Dead, § 2 (2002).

For purposes of section 3151, "sexton" is the equivalent of "the person in charge of the premises." The court finds that neither Mortuary nor Wright were in charge of the Cemetery's premises at the time Susie Green's body was buried or thereafter. Mortuary and Wright are not the functional equivalent of "sexton" under section 3151. Neither had a legal duty to retain a copy of the burial permit as a record of the location of Susie Green's burial plot.

THEREFORE, House of Wright Mortuary, Inc.'s and Robert O. Wright's Motion for Summary Judgment is hereby GRANTED. Defendants House of Wright Mortuary, Inc. and Robert O. Wright are hereby DISMISSED WITH PREJUDICE.

Motions in Limine

Plaintiffs have filed a Motion in Limine seeking to exclude any new evidence produced by Mateja after the discovery period had expired. Plaintiffs' Motion in Limine against House of Wright Mortuary, Inc. and Robert O. Wright requests that the court exclude Robert O. Wright as an expert witness. House of Wright Mortuary, Inc.'s and Robert O. Wright's Motion in Limine seeks to exclude the expert testimony of Daniel M. Isard.

The court, having ruled that Defendants Walter Mateja and House of Wright Mortuary, Inc. and Robert O. Wright are dismissed from this action, holds that the listed Motions in Limine are hereby DENIED AS MOOT.

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IT IS SO ORDERED.


Summaries of

Green v. House of Wright Mortuary, Inc.

Superior Court of Delaware, New Castle County
Nov 17, 2005
C.A. No. 02C-11-242 MMJ (Del. Super. Ct. Nov. 17, 2005)
Case details for

Green v. House of Wright Mortuary, Inc.

Case Details

Full title:CRYSTAL GREEN and ELENA GREEN, Plaintiffs, v. HOUSE OF WRIGHT MORTUARY…

Court:Superior Court of Delaware, New Castle County

Date published: Nov 17, 2005

Citations

C.A. No. 02C-11-242 MMJ (Del. Super. Ct. Nov. 17, 2005)