Seals v. H F

Full title: Linda F. SEALS v. H F, INC. et al

Court: Supreme Court of Tennessee

Date published: Jan 15, 2010

301 S.W.3d 237 (Tenn. 2010)

Opinion

October 7, 2009 Session.

January 15, 2010.

Appeal from the United States District Court for the Middle District of Tennessee, William J. Haynes, Jr., J.

Robert D. MacPherson and Elizabeth Lee Luongo Youmans, Lebanon, Tennessee, for the plaintiff, Linda F. Seals.

Alisha M. Toll, Benjamin James Miller, and Dianne M. Schwartz, Nashville, Tennessee, for the defendant, H F, Inc; and James Randolph Tomkins, Nashville, Tennessee, for the defendant, Sellars Cremation Service, Inc.

GARY R. WADE, J., delivered the opinion of the court, in which JANICE M. HOLDER, C.J., CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined. WILLIAM C. KOCH, JR., J., filed an opinion concurring in part and dissenting in part.

OPINION

GARY R. WADE, C.J.,

The defendants, a funeral home and a crematory operator, arranged for and conducted a cremation at the joint request of the decedent's fiancée and his fourteen-year-old son. The decedent's mother, who claims the entitlement to have directed the disposal of his body, filed suit in the United States District Court for the Middle District of Tennessee contending wrongful cremation and seeking damages under a variety of theories in tort. Three certified questions of state law have been presented to this Court for consideration. Our responses are as follows: (1) where decedent did not make a pre-mortem election for the method of disposal of his remains, a parent has a right of control superior to that of a fiancée or minor child; (2) while a minor may be an "heir" under the safe harbor provisions for crematory operators under our statute, reliance on the instructions of a minor may qualify as so reckless as to subject the operator to liability; and (3) a funeral home that merely makes arrangements for a cremation and contracts for another party to perform the cremation is not the operator of a crematory facility for purposes of the statutory safe harbor.

Facts and Procedural History ¹

1 Because of the procedural posture of the case, we do not have the record. We have relied, therefore, upon the Certification Order entered by the federal district court for our summary of the relevant facts.

Rodney Leon Boling (the "Decedent") died on October 28, 2007. At the joint request of his fiancée² and his fourteen-year-old son, whose names are not a part of this limited record, the body was cremated by the defendants, H F, Inc. ("H F"), a funeral home operator, and Sellars Cremation Service, Inc. ("Cremation Service") (the "Defendants"). While H F made contractual arrangements with Cremation Service for the cremation, both businesses are owned by the same individual, Judd Sellars. Linda F. Seals (the "Plaintiff'), is the Decedent's mother and his sole surviving parent.

2 "Girlfriend" is the term used by the Plaintiff to describe this person, while the Defendants use the term "fiancée." We take no position as to which term is more accurate and use "fiancée" only for convenience.

The Plaintiff filed a diversity-of-citizenship suit in the United States District Court for the Middle District of Tennessee, arguing that she alone was entitled to control the disposition of the body pursuant to the order of priority established in Akers v. Buckner-Rush Enterprises, Inc., 270 S.W.3d 67, 73 (Tenn.Ct.App. 2007), perm, app. denied (Tenn. Apr. 7, 2008), reh'g denied (Tenn. May 12, 2008), and that the Defendants either negligently or intentionally failed to either ascertain or respect her right to do so. She is seeking damages under a variety of theories sounding in tort.

In response, both of the Defendants first claim that the fiancée and child led them to believe that the Plaintiff had not survived the Decedent, and that they were entitled to rely upon their representations. Secondly, the Defendants assert that the Decedent's minor son, rather than the Plaintiff, had the right to control the disposition of his father's remains. As an alternative defense, Cremation Service contends that even if the Plaintiff had the superior right to control the disposition of the body, Tennessee Code Annotated section 62-5-511 (2009), which establishes a safe harbor for the operator of a crematory facility, precludes liability for an operator following the instructions of an heir, unless the operator acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Finally, H F argues that it also qualifies as an operator of a crematory facility and is, therefore, also protected from liability by the terms of section 62-5-511.

The district court found that there were determinative questions of state law for which there was no precedent. Pursuant to Tennessee Supreme Court Rule 23, a certification order was filed on February 20, 2009, presenting three questions of law, each of which has been accepted by this Court for consideration:

1. Who has the legal control over the disposition of the remains of a decedent when there is no surviving spouse? Specifically, with respect to the facts of this case, with whom is such control vested among a sole surviving parent of the decedent, a fiancée of the decedent, and a fourteen-year-old minor child of the decedent?

2. If the answer to Question # 1 is such that the fourteen-year-old minor has no legal control or has no superior or exclusive right of control over the disposition of the remains of his deceased parent, is such a child nonetheless an "heir" of the decedent, as that term is used in section 62-5-511, Tennessee Code Annotated, such that an operator of a crematory facility acting without malicious purpose or bad faith, and not in a wanton or reckless manner, in cremating the remains of the decedent in accordance with instructions set forth by the child is not liable for damages in a civil action for such cremation, as provided by said statute?

3. Does the defendant funeral home, H F, Inc., fall under the definition of a crematory facility for purposes of section 62-5-511, Tennessee Code Annotated, given its role in the disposition of the decedent's remains?

Authority, Standard of Review, and Statutory Interpretation

Under Rule 23 of the Tennessee Supreme Court Rules, we may "accept and answer a question of state law certified . . . by the federal court to assist the federal court in deciding a question of state law." Haley v. Univ. of Tenn.-Knoxville, 188 S.W.3d 518, 521 (Tenn. 2006) (citing 17A Charles Alan Wright, Edward H. Cooper, Arthur R. Miller Vikram David Amar, Federal Practice Procedure § 4248 (2d ed. 1988)). Although "answering a certified question is not an adjudicative function" and, in consequence, "not an exercise of this Court's jurisdiction," id. at 522, we have held that we are authorized to answer certified questions as part of our inherent judicial power under Article VI, section 1 of the state's Constitution.³ Id. at 523.

3 It is within our discretion to decline to answer certified questions. Tenn. Sup.Ct. R. 23, § 1. Nevertheless, in the interests of comity, this Court frequently accepts certified questions of law. See, e.g., Allmand v. Pavletic, 292 S.W.3d 618 (Tenn. 2009); Lincoln Gen. Ins. Co. v. Detroit Diesel Corp., 293 S.W.3d 487 (Tenn. 2009); In re Hogue, 286 S.W.3d 890 (Tenn. 2009); Shorts v. Bartholomew, 278 S.W.3d 268 (Tenn. 2009). There are concerns about overuse of the certified question process. For example, Judge Bruce M. Selya of the United States Court of Appeals for the First Circuit once opined that "neither federalism nor efficiency nor fairness sufficiently justifies the . . . popularity that certification has acquired in our system." Bruce M. Selya, Certified Madness: Ask a Silly Question . . ., 29 Suffolk U. L. Rev. 677, 691 (1995). We have not shared Judge Selya's harsh assessment of the general merits of the certification process. Haley, 188 S.W.3d at 521-23 (discussing the value of certified questions). We do believe, however, that certifying a question is not always the best option. Federal courts are, of course, permitted to decide issues of state law in cases over which they have jurisdiction, as we may decide issues of federal law in cases over which we have jurisdiction. In our system, it is commonplace for a question of law to be decided first by a court other than the court empowered to resolve the question definitively:

[V]ery few of our legal institutions at any level ensure participants recourse to the highest possible authority, yet we do not consider them, in general, unjust or unfair. Nor should we deem it unfair simply because parties in the midst of federal court litigation are denied direct access to a state's highest court for resolution of a state-law issue.

Selya, 29 Suffolk U. L. Rev. at 691. Moreover, deciding not to certify a question at the trial level does not preclude certification later, because a question of law may be certified to this Court at any level of the federal appellate process. Tenn. Sup.Ct. R. 23, § 1.

Rule 23 permits consideration of questions of law only, not questions of fact or controversies as a whole. Our scope of review for questions of law is de novo. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008) (citing Perrin v. Gaylord Entm't Co., 120 S.W.3d 823, 826 (Tenn. 2003); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997)); S. Constructors, Inc. v. London County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). Issues of statutory construction are questions of law. Hayes v. Gibson County, 288 S.W.3d 334, 337 (Tenn. 2009).

When interpreting a statute, we "must first ascertain and then give full effect to the General Assembly's intent and purpose" in drafting those sections. Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176 (Tenn. 2008). Our chief concern is to carry out the legislature's intent without unduly broadening or restricting the statute. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens, v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). We presume that every word in a statute has meaning and purpose and should be given full effect if so doing does not violate the legislature's obvious intent. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When the statutory language is clear and unambiguous, we simply apply its plain meaning. Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). When a statute is ambiguous, however, we may refer to the broader statutory scheme, the history of the legislation, or other sources to discern its meaning. Colonial Pipeline, 263 S.W.3d at 836. We presume that the General Assembly was aware of its prior enactments and knew the state of the law at the time it passed the legislation. Owens, 908 S.W.2d at 926.

Question 1

The federal district court has asked us first to ascertain who has control over the disposition of remains when there is no surviving spouse. For the reasons set out below, we have determined that the decedent, as a general rule, has the primary entitlement to expressly elect the method of disposal of his or her body, or, in the alternative, to designate an individual to elect the method of disposal; if the decedent does not do so, however, the legal right to direct the disposal of remains descends to the following parties, in order of priority: (1) the spouse of the decedent; (2) adult children of the decedent; (3) parents of the decedent; (4) adult siblings of the decedent; (5) adult grandchildren of the decedent; (6) grandparents of the decedent; and (7) an adult who has exhibited special care and concern for the decedent. Thus, the right of a surviving parent (who would be third in priority), absent an election by the decedent to the contrary, will control over the wishes of a fiancée (seventh in priority) or minor child, to whom priority would never descend.

Before we consider the specific rights of survivors, we must raise a point that the certified question neglects. The question appears to assume — perhaps inadvertently — that the decision to cremate will always rest in the hands of either the surviving spouse or some other survivor. First and foremost, however, the decedent has the right to direct the method of disposal for his or her body. The policy of the General Assembly confers upon the individual the opportunity to make decisions of this nature. See Tenn. Code. Ann. § 68-30-104 to -108 (Supp. 2009) (empowering individuals to make anatomical gifts during life and placing restrictions upon those who might elect to revoke that gift); Tenn. Code Ann. § 62-5-511(a)(1) (providing a safe harbor for a crematory facility operator that follows "the instructions set forth by the decedent"). Our opinion today simply confirms the public policy of the state. It is only when the decedent does not make an election during the course of his or her life that the right and obligation fall upon a survivor.

Who has a right to decide the manner of disposal of a dead body — and, by extension, who has legal recourse in the event of wrongful acts — has presented a challenge to the courts since the early days of the common law. Our common law did not recognize property rights in human remains. In re Johnson's Estate, 169 Misc. 215, 7 N.Y.S.2d 81, 84-85 (N.Y.Surr.Ct. 1938); Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878, 879 (1904); Tanya Hernandez, The Property of Death, 60 U. Pitt. L. Rev. 971, 981-82 (1999). But see Whaley v. County of Tuscola, 58 F.3d 1111, 1116 (6th Cir. 1995) (finding constitutionally protected property interest in dead body under Michigan law); Brotherton v. Cleveland, 923 F.2d 477, 482 (6th Cir. 1991) (finding constitutionally protected property interest in dead body under Ohio law). As a result, both the legislative and judicial branches of government have often relied upon claims in tort and in "quasi-property" principles to ensure that survivors have meaningful recourse in the event of the wrongful disposal of a body. Michelle Bourianoff Bray, Note, Personalizing Personalty: Toward a Property Right in Human Bodies, 69 Tex. L. Rev. 209, 225-28 (1990).

Since the ruling of this Court in Hill v. Travelers' Insurance Co., 154 Tenn. 295, 294 S.W. 1097, 1099 (1927), this state has protected the interests of survivors by permitting claims in tort for emotional suffering. Cf. Eskin v. Bartee, 262 S.W.3d 727, 734 n. 18 (Tenn. 2008) (observing that Hill marked the Court's first instance of willingness to depart from "the requirement that [in order to be compensable] emotional distress must either have some physical manifestation or be accompanied by a physical injury"). In Hill Travelers' Insurance Company, which had written a life insurance policy on the decedent, Albert Brown, had asked his wife, Mary Brown Hill, to consent to an autopsy. She refused at first, but eventually relented on the condition that the autopsy be performed in a manner designed to avoid the mutilation and public exposure of the body. Later, Mrs. Hill filed suit for damages arising out of the "unauthorized mutilation and exposure" of the remains. 294 S.W. at 1097. When the insurance company and the physician who performed the autopsy sought dismissal for failure to state a cause of action, this Court, while acknowledging that human remains are not "property in the ordinary commercial sense," held that "the right to the possession of a dead body for the purposes of decent burial is vested in the surviving husband or wife or next of kin, and that it is a right which the law will recognize and protect." Id. at 1098 (citing Larson v. Chase, 47 Minn. 307, 50 N.W. 238 (1891)). Because the wife had the "right to refuse to permit an autopsy [and] the right to clothe her consent with any stipulations or limitations," she was entitled to sue for damages. Id. at 1099. Those damages were not, however, measured by "the injury done to the dead body, but . . . 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." Id.

Although our decision in Hill recognized the right of "the surviving husband or wife or next of kin" to control the disposition of a dead body, the Court offered no guidance how to adjudicate competing claims among family members. "The strict legal meaning of the phrase `next of kin' is `next or nearest in blood'" according to the common law "line of consanguinity." Sneed v. Henderson, 211 Tenn. 572, 366 S.W.2d 758, 760 (1963) (quoting Helms v. Elliott, 89 Tenn. 446, 14 S.W. 930, 931 (1890)). We have acknowledged, however, that sometimes the determination of the "next of kin" for a specific purpose depends not on the common law of consanguinity but on the rules governing that specific area of law. In Tudor v. Southern Trust Co., for example, we acknowledged that "next of kin" might refer to either the "next or nearest in blood relationship computed according to the law of consanguinity" or the "persons entitled to the personal estate of the intestate under the statutes of distribution." 193 Tenn. 331, 246 S.W.2d 33, 34 (1952) (citing Frank v. Frank, 180 Tenn. 114, 172 S.W.2d 804 (1943)).

While no opinion of this Court has definitively established the order of priority among the various members of a family in the disposal of a dead body, ⁴ only two years ago, our Court of Appeals considered this issue in litigation arising out of particularly egregious conduct by the operator of Tri-State Crematory in Noble, Georgia:

4 The separate opinion suggests that our holding contradicts longstanding common law embodied in the "right of sepulchre." It does not. Our research suggests that this Court has never used the term "right of sepulchre." More importantly, this Court has never considered the questions raised in this case. We disagree that Tennessee common law in this area qualifies as well settled based upon a single Court of Appeals case, Estes v. Woodlawn Memorial Park, Inc., 780 S.W.2d 759 (Tenn.Ct.App. 1989). In fact, the holding in Estes itself goes far beyond — and arguably contradicts — Hill. For example, while Hill vests the right to direct the method of disposal with "the surviving husband or wife or next of kin," Estes suggests that the "spousal right of burial may not apply when the spouses had separated and were not living together at the time of death." Moreover, the opinion in Estes relies repeatedly on holdings in other jurisdictions and statements from secondary sources — likely because Tennessee common law was silent on the principles espoused. In our view, Estes demonstrates how unsettled this area of law has been in Tennessee.

In 2002, it was discovered that the crematory was not operational and had not been operational in years. Although [owner T. Ray Brent] Marsh continued to accept bodies for cremation, he simply was burying or dumping the bodies on the Tri-State premises. Marsh would return to the family members what purported to be the ashes of a deceased, but the ashes were not the remains of their loved one. Over 300 uncremated bodies were discovered on the Tri-State premises.

Akers, 270 S.W.3d at 69; see also Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149, 150-52 (Tenn.Ct.App. 2007) (discussing facts of Tri-State case); Floyd v. Prime Succession of Tenn., No. E2006-01085-COA-R9-CV, 2007 WL 2297810, at *1-4 (Tenn.Ct.App. Aug.13, 2007) (same); Ariel Hart, Guilty Plea and Apology From Crematory Manager, N.Y. Times, Nov. 20, 2004, at A2 (discussing the "hundreds of bodies . . . found scattered, stacked and left to rot at the Tri-State Crematory"). In Akers, our Court of Appeals had to determine which family members had standing to make claims for the misconduct by the crematory. After concluding that no statute addressed who "had control over disposition of [a] loved one['s] body and, therefore, [had] standing to proceed with . . . tort claims," our intermediate court adopted a rule based on analogous provisions of the Revised Uniform Anatomical Gift Act (the "RUAGA"), Akers, 270 S.W.3d at 73, which was enacted in 2007. Act of May 29, 2007, ch. 428, 2007 Tenn. Pub. Acts 605 (codified at Tenn. Code Ann. §§ 68-30-101 to -120 (Supp. 2009)); Revised Unif. Anatomical Gift Act (2006), 8A U.L.A. 33 (Supp. 2009).⁵ Our Court of Appeals based its ruling on Tennessee Code Annotated section 68-30-109(a), which provides as follows:

5 The RUAGA replaced the Uniform Anatomical Gift Act, which had — with various revisions — governed anatomical gifts in Tennessee since 1969. Act of March 25, 1969, ch. 35, 1969 Tenn. Pub. Acts 62 (codified as amended at Tenn. Code Ann. §§ 68-30-101 to -402 (2006)); see Unif. Anatomical Gift Act (1968), 8A U.L.A. 69 n. 2 (2003) (noting that, in 2001, Tennessee adopted a version of the Uniform Anatomical Gift Act that blended its 1968 and 1987 versions).

[A]n anatomical gift of a decedent's body or part for purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:

(1) A guardian or conservator of the person of the decedent at the time of death, if the court order authorizes the guardian or conservator to make healthcare decisions;

(2) An agent; ⁶

6 An "agent" for the purposes of section 68-30-109(a)(2) is defined as either an individual "[a]uthorized to make healthcare decisions on the principal's behalf by a power of attorney for healthcare or an advance directive" or an individual "[e]xpressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal." Tenn. Code Ann. § 68-30-102(2).

(3) The spouse of the decedent;

(4) Adult children of the decedent;

(5) Parents of the decedent;

(6) Adult siblings of the decedent;

(7) Adult grandchildren of the decedent;

(8) Grandparents of the decedent;

(9) A surrogate identified pursuant to § 68-11-1806;

(10) An adult who exhibited special care and concern for the decedent; and

(11) Any other person having the authority to dispose of the decedent's body.

Our intermediate court did not, however, import the RUAGA order of priorities in its entirety, omitting several parties whose authority was of a limited, exclusively medical nature, such as surrogates and individuals with powers of attorney for healthcare. Further, the tenth category, "[a]n adult who exhibited special care and concern for the decedent," was omitted, possibly because an individual unrelated by consanguinity or marriage did not qualify as "next of kin." The order of priorities adopted in Akers was thus as follows: "(1) the spouse of the decedent; (2) adult children of the decedent; (3) parents of the decedent; (4) adult siblings of the decedent; (5) adult grandchildren of the decedent; and (6) grandparents of the decedent." 270 S.W.3d at 73.

The Defendants reject the ruling in Akers and urge us to ignore the RUAGA and adopt the system of priorities established by statute for the purposes of descent and distribution. See Tenn. Code Ann. § 31-2-104 (2007). Unlike the RUAGA, section 31-2-104 does not govern any aspect of the disposal of a decedent's body, addressing instead the distribution of property from the decedent's estate. Tenn. Code Ann. § 31-2-101 (2007). Nevertheless, the Defendants argue that we are bound by the statutory terms because they reflect the common law of consanguinity. Although the order of priorities listed in the RUAGA and the law of intestate succession are similar, an important distinction is that the RUAGA empowers only adult children of the decedent, whereas the law of intestate succession provides for minor heirs. But see 22A Am.Jur.2d Dead Bodies § 21 (Westlaw 2009) ("In the absence of a showing that normal parental and filial relations did not exist at the time of death, an adult child has the right to supply a proper burial for a widowed parent or a parent who was not married at the time of his or her death, and did not leave a testamentary directive concerning his or her burial." (emphasis added) (citations omitted)).

In our view, the RUAGA is the more appropriate source of guidance.⁷ Unlike the law of intestate succession, the RUAGA directly addresses disposal of a dead body. Although the act applies only "to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift," Tenn. Code Ann. § 68-30-103, and was not designed to govern all aspects of postmortem disposition, the concerns addressed by the legislation apply in equal measure to the disposal of a human body. In Pettigrew, the Pennsylvania Supreme Court identified competing concerns:

7 Given the separate opinion's admonition that "[w]e are not . . . empowered to parse the Tennessee Code Annotated for other statutes that might contain a workable framework for resolving a dispute," it bears emphasizing that we are not expanding the RUAGA to cover cremation disputes. Rather, as the separate opinion concedes, we are presented with a question under the common law. As that opinion further observes, some aspects of the common law right under Hill have never been addressed directly by this Court. Under these circumstances, it is permissible to consider analogous areas of law in order to ascertain the underlying policy of the state. See Robert F. Williams, Statutes as Sources of Law Beyond their Terms in Common-Law Cases, 50 Geo. Wash. L. Rev. 554, 556 (1982) ("Indeed, courts have been influenced in many cases by statutes not applicable by their terms."). Just as we consider the RUAGA, the separate opinion considers statutes governing the law of descent to support its proposed rule and cites numerous statutes governing the rights of minors in attempting to determine the state's underlying policy in that regard.

The determination [of how to dispose of a dead body] must rest . . . "upon considerations arising partly out of the domestic relations . . . partly out of the universal sentiment . . . that the dead should repose in some spot where they will be secure from profanation; partly out of what is demanded by society for the preservation of the public health, morality, and decency; and partly often out of what is required by a proper respect for and observance of the wishes of the departed themselves."

56 A. at 879 (quoting Fox v. Gordon, 16 Phila. 185 (Pa. C. 1883)). The disposal of a dead body may also implicate issues of profound religious importance. See Mitty v. Oliveira, 111 Cal.App.2d 452, 244 P.2d 921, 924-25 (1952) (describing religiously-charged controversy over method of disposal). Given the sensitive nature of this topic, we are hesitant to base our answer on an area of law crafted to govern the distribution of property from an intestate estate.

Earlier versions of Tennessee's legislation governing crematories, including Tennessee Code Annotated section 62-5-511, provide further support for the order of priorities established in Akers. Although these statutes, as now written, do not provide specific guidance as to how to resolve disputes between family members over the disposal of a human body, earlier versions did establish, for some cremation-related purposes, systems of priority similar to the system contained within the RUAGA. Tenn. Code Ann. § 62-5-503(a) (Supp. 1999); Tenn. Code Ann. § 62-5-501(b) (Supp. 1985).

Until our General Assembly provides more explicit guidance on the subject, we adopt the following order of priority as to the right to dispose of a dead body: (1) the decedent, pre-mortem, including through any party designated in writing by the decedent to make the decision post-mortem; (2) the spouse of the decedent; (3) adult children of the decedent; (4) parents of the decedent; (5) adult siblings of the decedent; (6) adult grandchildren of the decedent; (7) grandparents of the decedent; and (8) an adult who exhibited special care and concern for the decedent.⁸ As to the circumstances at issue, if the Decedent did not provide written instructions to the contrary, a surviving parent would have priority over a fiancée or minor child.

8 Although we recognize the difficulty of determining who is "an adult who exhibited special care and concern for the decedent," as well as the fact that such an individual may not fit the traditional definition of "next of kin," we believe that, as a last resort, it would be preferable to empower such an individual, who would best reflect the preferences of the decedent, the friends of the decedent, and the community.

Question 2

Having concluded that a surviving parent would have rights superior to a fiancée or minor child, we now turn to the second certified question. The district court has asked whether a minor child may be an "heir" of a decedent, as that term is used in the safe harbor provision of Tennessee Code Annotated section 62-5-511. The answer is yes.

In light of our answer to Question 1, however, the inquiry should not stop there. When appropriate, we may "exercise our discretion to reframe the Rule 23 certified question before us so as to provide the guidance actually sought." Shorts, 278 S.W.3d at 280 n. 13 (citing 17A Charles Alan Wright, Arthur R. Miller, Edward H. Cooper Vikram David Amar, Federal Practice and Procedure, Jurisdiction 3d. § 4248 n. 67 and accompanying text (Westlaw 2009)). In an effort to avoid any confusion by our response to Question 2, we will make an additional point. Although an individual's minority has no bearing on whether he or she is an "heir," minority is a critical factor in the determination of whether following the instructions of such an heir may qualify as "wanton or reckless" under section 62-5-511(a). As indicated, a minor child is not among those who will ordinarily be empowered to direct the disposal of a body; therefore, if an operator knows that a child heir is or is likely a minor, it may be reckless to follow the child heir's instructions, because the operator may not consciously disregard the rights of the individual actually empowered to make the decision. Whether the circumstances in this instance are such that reliance on a minor child's instructions would be reckless, thereby disqualifying Cremation Service from the safe harbor provision of the statute, is a question of fact for the district court.

Background

A recitation of the legislative history provides context for the analysis of this question. In 1982, the General Assembly amended the statutes governing licensing and regulation of funeral directors and embalmers to explicitly recognize an individual's right to elect to be cremated. Act of March 25, 1982, ch. 703, 1982 Tenn. Pub. Acts 273 (codified as Tenn. Code Ann. § 62-5-501 (Supp. 1985)). The legislation, since repealed, addressed both the initial authorization to cremate and the disposal of the ashes after a cremation. Section 62-5-501(a) first established that "[t]he body of any deceased human being may be disposed of by cremation if such disposition of the body has been designated by the deceased in writing during his lifetime," and further provided that "[s]uch designation of cremation may include instructions for disposition of the ashes," and "[a]ny such instructions shall be followed by the person to whom the ashes are entrusted." Tenn. Code. Ann. § 62-5-501(a) (emphasis added). Section 62-5-501(b) established the order of priority in determining who had the authority over the ashes:

Unless otherwise directed by the deceased in writing, the ashes following cremation shall be entrusted to the following in the order named:

(1) The surviving spouse;

(2) The surviving children of the deceased who have reached majority;

(3) The surviving parents of the deceased who are sui juris; and

(4) The next of kin.

(Emphasis added.) The other, more general aspects of the disposition of remains were governed by Tennessee Code Annotated, Title 53, chapter 5 (later Title 68, chapter 4).

In 1999, the General Assembly enacted a more comprehensive scheme to govern cremation, repealing the 1982 act in its entirety and adopting several new provisions. Act of May 13, 1999, ch. 215, 1999 Tenn. Pub. Acts 469. Section 11 of the 1999 act, which was codified as Tennessee Code Annotated section 62-5-511 (Supp. 1999), established a "safe harbor" provision shielding "[t]he operator of a crematory facility" from civil damages for certain acts, so long as those acts were taken in accordance with the statute. Although this act has since been substantially amended, it is instructive on the issue before us. Under the legislation, as it existed until recently, an operator could not be found liable for damages for

(1) [h]aving performed the cremation of the decedent, or having released or disposed of the cremated remains, in accordance with the instructions set forth in the cremation authorization form executed by the decedent on an antemortem basis; [or]

(2) [h]aving performed the cremation of the decedent . . . in accordance with the instructions set forth in a cremation authorization form executed in person by the person authorized to serve as the authorizing agent for the cremation of the decedent . . . named in the cremation authorization form[.]

Tenn. Code Ann. § 62-5-511(a) (emphasis added). The safe harbor was specifically contingent upon following a "cremation authorization form." Tenn. Code Ann. § 62-5-504 to -506 (Supp. 1999). Section 62-5-511(a)(1) addressed only situations where the decedent completed a cremation authorization form during his lifetime. In that respect, it was similar to the earlier, repealed regime under Tennessee Code Annotated section 62-5-501 (Supp. 1985), which authorized cremations "designated by the deceased in writing during his lifetime." Section 62-5-511(a)(2), however, went further, establishing a safe harbor for operators who cremate remains in accordance with a form completed not by the decedent, but by the decedent's "authorizing agent." "Authorizing agent" was defined as "the person or persons who are entitled to order the cremation of a decedent." Tenn. Code Ann. § 62-5-501(3) (Supp. 1999). Prior to death, an individual could, of course, be his own authorizing agent. Tenn. Code Ann. § 62-5-502(a) (Supp. 1999). An authorizing agent could also be "[a] guardian, custodian, or other personal representative who is authorized by law or contract to" execute the authorization form. Id. Tennessee Code Annotated section 62-5-503(a) (Supp. 1999) established the order of priority for determining who may serve as the authorizing agent by law. The family members had the highest priority, and priority among the family was prescribed as follows:

(1) The spouse of the decedent, at the time of the decedent's death;

(2) The decedent's surviving adult children. If the decedent is survived by more than one (1) adult child, any adult child of the decedent who states on the cremation authorization form that all of the decedent's other adult children have been notified of the decedent's death and of the plans to cremate the decedent and that none of them have expressed an objection to the cremation, may serve as the authorizing agent;

(3) The decedent's surviving parent or, if the decedent was under eighteen (18) years of age at death, a surviving parent or the guardian or custodian of the decedent. If the decedent is survived by both parents, either of them may serve as the authorizing agent by stating on the cremation authorization form that the other parent has been notified of the decedent's death and of the plans to cremate the decedent and that the other parent expressed no objection to the cremation;

(4) The person in the next degree of kinship to the decedent to inherit the estate of the decedent if the decedent had died intestate. If there is more than one (1) person of that degree of kinship, any of them may serve as the authorizing agent[.]

Id.

In 2000, the General Assembly once again made substantial changes to the laws governing cremation. Act of May 11, 2000, ch. 779, 2000 Tenn. Pub. Acts 2231. The 2000 amendment, the most recent alteration of the legislative scheme, repealed the prior year's "authorization form" and "authorizing agent" framework, while keeping some of the other language, including much of the original safe harbor terminology. The relevant sections of the section 62-5-511 safe harbor were, however, revised so as to provide as follows:

The operator of a crematory facility is not liable for damages in a civil action for any of the following actions or omissions, unless the actions or omissions were made with malicious purpose, in bad faith or in a wanton or reckless manner:

(1) Having performed the cremation of the decedent, or having released or disposed of the cremated remains, in accordance with the instructions set forth by the decedent or an heir or personal representative of the decedent[]

Tenn. Code Ann. § 62-5-511(a) (emphasis added).

Analysis

Section 62-5-511 does not empower anyone to direct the method of disposal of a body. It is purely a limitation on the liability of operators of crematory facilities. Moreover, its immunity is not absolute; for a crematory facility operator to take advantage of section 62-5-511(a)(1), the operator's conduct must conform to certain requirements. First, the crematory facility operator must rely on the instructions of "the decedent or an heir or personal representative of the decedent" (the "authorizing party" requirement). Second, the operator must actually act "in accordance" with those instructions (the "conformity" requirement). Finally, the operator cannot act "with malicious purpose, in bad faith or in a wanton or reckless manner" (the "conduct" requirement). If all the conditions of section 62-5-511(a)(1) are met, an operator cannot be held liable, even if the person whose instructions it followed did not actually possess the right to direct the method of the disposal. The second certified question by the district court focuses on one aspect of the "authorizing party" requirement — specifically, who qualifies as an "heir."

"Heir" is not explicitly defined in section 62-5-511(a)(1). For the purposes of the statutes governing descent and distribution, however, "`[h]eirs' means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent[.]" Tenn. Code Ann. § 31-1-101(5) (2007). The fact that section 62-5-511 uses not only "heir" but "personal representative" — another term from law of descent and distribution and defined in section 31-1-101 — suggests that it is this ordinary definition of "heir" that the General Assembly intended to adopt. Moreover, the definition offered in section 31-1-101 closely tracks those of authoritative dictionaries. See, e.g., Black's Law Dictionary 740 (8th ed. 2004) (defining "heir" as "[a] person who, under the laws of intestacy, is entitled to receive an intestate decedent's property").

Prior to the 2000 revision, section 62-5-503(a) explicitly stated that only an adult child could serve as an "authorizing agent" for the purposes of a cremation authorization form. In support of their position, the Defendants point out that this restriction was removed when section 62-5-503 was repealed and section 62-5-511 was amended. In response, the Plaintiff argues that the removal of that explicit restriction was inadvertent and does not signal an intent by the General Assembly to empower minor children to make decisions about cremation. A review of the legislative history of the 2000 amendment does not contradict the Plaintiff's interpretation. For example, a sponsor of the 2000 bill described the change as merely an attempt to remove a layer of bureaucracy — presumably the complex "authorizing agent"/"authorization form" framework. Statement of Sen. Tim Burchett, Senate Commerce, Labor Agriculture Committee, Feb. 29, 2000. We have found no aspect of the legislative history that suggests any conscious intent to increase or decrease the rights of a surviving minor child.

Regardless of the intention of any individual members of the General Assembly, however, the language of the 2000 amendment is unambiguous, and "`[i]f the statute is unambiguous, we need only enforce the statute as written[,]' with no recourse to the broader statutory scheme, legislative history, historical background, or other external sources of the Legislature's purpose." Calaway ex rel. Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2005) (quoting In re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn.Ct.App. 1995)). The term "heir," of course, does not exclude minors. In fact, our statutes repeatedly acknowledge that a minor qualifies as an heir. See Tenn. Code Ann. § 29-15-106(c) (2000) (referring to heirs who are infants); Tenn. Code Ann. §§ 30-2-203(a), -409(a), -411, -416 (2007) (referring to heirs who are minors). Because the statute is unambiguous, we cannot rely on legislative history to depart from its plain meaning.

The Plaintiff also suggests that construing "heir" literally would qualify as absurdity, citing the traditional rule of statutory construction that "we will not apply a particular interpretation to a statute if that interpretation would yield an absurd result."⁹ State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). The power to disregard a clear statutory text on the ground that it dictates an absurd result has been subject to criticism in recent years. See, e.g., John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387 (2003). Nevertheless, the "absurdity doctrine" remains a part of our state's law of statutory construction, albeit one that should be applied sparingly — only when a result is manifestly absurd, and not simply unpleasant or peculiar. We cannot find that it would be inherently absurd to provide a safe harbor for a crematory facility operator who, absent malicious purpose, bad faith, or wanton or reckless conduct, follows the instructions of a minor heir.

9 Justice Stephen Johnson Field famously described this rule as follows:

The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, "That whoever drew blood in the streets should be punished with the utmost severity," did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the Statute of 1 Edward II., which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire — "for he is not to be hanged because he would not stay to be burnt." And we think that a like common sense will sanction the ruling we make, that the Act of Congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder.

United States v. Kirby, 74 U.S. 482, 487, 7 Wall. 482, 19 L.Ed. 278 (1868).

Finally, under the priority of interests adopted in response to Question 1 above, there inevitably will be at least one type of instance where the "heir" empowered to elect a cremation is a minor: the death of the child of a minor parent. The RUAGA explicitly confers rights only to adult children, adult siblings, and adult grandchildren, excluding minor children, minor siblings, and minor grandchildren. Tenn. Code Ann. § 68-30-109(a)(4), (6)-(7). It contains no such exclusion for a minor parent. Tenn. Code Ann. § 68-30-109(a)(5). We have adopted those guidelines for the purposes of electing a cremation. As a result, it will sometimes be the case that a minor will, as a matter of law, be the heir empowered to make the decision about how to dispose of a dead body. If, however, we interpret "heir," as it is used in section 62-5-511, to exclude all minors, a crematory operator would not be able to use the safe harbor in that situation, despite the fact that the operator followed the instructions of the proper heir — the minor parent. That such a difficult result can be avoided by construing "heir" to include a minor further supports our reading of the statute.

We conclude that the. word "heir," as used in section 62-5-511, retains its ordinary meaning and, therefore, includes minors. In order to avoid confusion, however, we must make an additional point. Simply because "heir" does not exclude minors does not mean that section 62-5-511 has failed to address the inability of a minor child of a decedent to authorize a cremation. As the parties agree, the section 62-5-511(a)(1) safe harbor does not apply if the action or omission is "made with a malicious purpose, in bad faith or in a wanton or reckless manner." Tenn. Code Ann. § 62-5-511(a) (emphasis added). "The reckless actor `does not intentionally harm another, but he intentionally or consciously runs a very serious risk with no good reason to do so.'" Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 38 (Tenn. 2005) (quoting Dan B. Dobbs, The Law of Torts § 147, at 351 (2001)). Whether an act is reckless, wanton, in bad faith, or malicious is a question of fact. See Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 10-11 (1938) ("Whether or not one is driving a motor vehicle on the highway `carelessly and heedlessly and in wanton disregard of the rights and safety of others' is a question of fact which may fairly be submitted to and determined by a judge and jury."); Madden Phillips Constr., Inc. v. GGAT Dev. Corp., No. W2008-02350-COA-R3-CV, 2009 WL 3064898, at *24 (Tenn.Ct.App. Sept.25, 2009) ("Tennessee courts have recognized in various contexts that the presence of bad faith is a question of fact."); Residents Against Indus. Landfill Expansion, Inc. v. Diversified Sys., Inc., No. 03A01-9703-CV-00102, 1998 WL 18201, at *4 (Tenn.Ct.App. Jan.21, 1998) ("The issue of malice is a question of fact for the jury."); 57A Am.Jur.2d Negligence § 290 (2004) ("Because a determination of whether conduct in a particular case constitutes willful and wanton conduct, reckless conduct, wanton misconduct, willful negligence, or some similar type of conduct is greatly dependent upon the particular facts of each case, it is generally within the peculiar province of the jury. . . ." (footnotes omitted)). While our limited record does not include the material facts, our view is that a cremation based on instructions from an individual whom the operator knows to lack the right to direct that remains be cremated may qualify as reckless. Because we are considering only certified questions of law, this is no occasion to apply that rule to specific facts.

Question 3

Finally, the parties have asked us whether Defendant H F — which the amended certification order describes as "a funeral home operator, who subcontracted out the actual cremation to" Cremation Service — is the "operator of a crematory facility" for the purposes of section 62-5-611. Because we do not have access to the factual record of this case, we cannot answer that question definitively. Generally, however, a funeral home that does not perform cremations, but merely makes arrangements for cremations to be carried out by another company, is not itself the operator of a crematory facility and, in consequence, cannot rely on the section 62-5-511 safe harbor.

"Operator of a crematory facility" is not explicitly defined in our statutes.¹⁰ Tennessee Code Annotated section 62-5-507 (2009) nevertheless provides a detailed account of the duties of "[t]he operator of a crematory facility." A close reading of these duties indicates that the General Assembly intended "operator" to refer to the party actually performing the cremations. Section 62-5-507(a) addresses an operator's ability to "schedule the time for the cremation of a dead human body . . . at the operator's own convenience." Section 62-5-507(b) imposes requirements on an operator's storage of a body "until the cremation process commences." Section 62-5-507(c) establishes that "[n]o operator of a crematory facility shall fail to cremate, in its entirety with the body, the casket or container, if any, in which the body was delivered or accepted by the crematory facility, if the instructions for the disposition of the body so request such item to be cremated with the body." Section 62-5-507(d) forbids an operator from cremating the remains of more than one decedent simultaneously in the same cremation chamber. Section 62-5-507(e) governs whom an operator may allow "to be present in the holding facility or cremation room while any dead human bodies or body parts are being held there prior to cremation or are being cremated or while any cremated remains are being removed from the cremation chamber." Section 62-5-507(f) deals with the possibility of operators removing items — such as dental gold — "from a dead human body prior to the cremation or from the cremated remains after cremation." Section 62-5-507(g) directs what an operator "shall" do "[u]pon the completion of each cremation." Sections 62-5-507(h) and (i) concern the return of cremated remains. Section 62-5-507(j) requires that an operator maintain an adequate system for identifying bodies, and section 62-5-507(k) forbids the knowing use of one cremation chamber for both humans and animals.

10 "Crematory," however, "means the building or portion of a building that houses one (1) or more cremation chambers used for the reduction of body parts or bodies of deceased persons to cremated remains and the holding facility." Tenn. Code Ann. § 62-5-101(4) (2009).

Read together, these provisions establish that the operator of a crematory facility is the party actually responsible for the cremation. Mr. Sellars chose to maintain his funeral home business and his cremation business separately, as was his prerogative, despite their obvious complementary nature. Based on the summary of the facts available, we see no reason to treat both businesses as operators of the crematory facility. Nevertheless, we stress that our answer here is only a statement of the governing law. The district court has the duty to apply the law to the facts.

Conclusion

Pursuant to the list governing the priority of rights in directing the method of disposal a dead body, a parent would hold a superior position to either a fiancée or a minor child. An "heir," as used in section 62-5-511, includes minor heirs; however, when a decedent left no instructions as to the method of disposal, a crematory may be reckless, depending on the circumstances, by reliance on the instructions of a minor heir. Finally, the term "operator of a crematory facility" does not include a funeral home that makes the arrangements for a cremation but does not itself perform the cremation. Costs are assessed one-third to the Plaintiff, one-third to H F, and one-third to Cremation Service, for which execution may issue if necessary.

WILLIAM C. KOCH, JR., J., filed an opinion concurring in part and dissenting in part.

WILLIAM C. KOCH, JR., J., concurring in part and dissenting in part.

This Court has accepted three questions certified by the United States District Court for the Middle District of Tennessee in accordance with Tenn. S.Ct. R. 23 that require us to determine how existing Tennessee law addresses certain questions involving the cremation of human remains. I regret that I am able to concur with the Court's answers to only the second and third questions. I cannot concur with the Court's answer to the first question because it overlooks that, by virtue of the definitive actions of the Tennessee General Assembly in 2000, the common-law right of sepulchre, recognized by this Court over eighty years ago, provides the basis for answering the question.

I.

The first question certified by the United States District Court is as follows:

Who has legal control over the disposition of the remains of a decedent when there is no surviving spouse? Specifically, with respect to the facts of this case, with whom is such control vested among a sole surviving parent of the decedent, a fiancé¹ of the decedent, and a fourteen-year-old minor child of the decedent?

1 Because the decedent in this case is a male, the term "fiancée" rather than "fiancé" is the appropriate descriptor.

I would answer this question by stating that control of the disposition of the remains of a decedent who has not made arrangements for the disposition of his or her own remains prior to death is currently governed by the common-law right of sepulchre as it has been recognized by Tennessee courts. In the absence of a surviving spouse, the authority to make decisions regarding the disposition of a decedent's remains rests with the decedent's "next of kin." The term "next of kin" refers to those persons who, according to the rules of consanguinity, are next or nearest in blood to the decedent. Based on these rules, a decedent's fourteen-year-old child may authorize the disposition of a parent's remains unless a court determines that the child lacks the capacity to make his or her own independent and considered decision. If the child is capable of making an independent and considered decision, the child's decision is entitled to preference over that of the decedent's surviving parents.

A.

Death is a natural and inevitable part of life's journey. When death comes, our society, acting with compassion and respect, has long preferred to leave it to the decedent's family to make appropriate arrangements for the disposition of the decedent's remains. This respect is reflected in the common-law "right of sepulchre," which has been described as the "sacred and inherent right" of a decedent's family to the custody of a decedent's remains for disposition and undisturbed repose. In re Widening of Beekman Street, 4 Bradf. Sur. R. 503, 529 (Sur. Ct. of N.Y. County 1856).

Tennessee's courts have recognized this common-law right. Over one century ago, this Court noted that "[c]ivilized countries have always recognized and protected the sacred right to Christian burial² and to an undisturbed repose of the human body when buried." Thompson v. State, 105 Tenn. 177, 180, 58 S.W. 213, 213 (1900). In 1927, citing Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 239 (1891) with approval, ³ we stated that "the right to the possession of a dead body for the purposes of decent burial is vested in the surviving husband or wife or next of kin and that it is a right which the law will recognize and protect." Hill v. Travelers' Ins. Co., 154 Tenn. 295, 299, 294 S.W. 1097, 1098 (1927). As late as 1989, the Court of Appeals held that "[a]bsent an expressed desire of the deceased, the surviving spouse and, if no surviving spouse, the next of kin, has the right of custody and burial of the remains of the deceased." Estes v. Woodlawn Mem'l Park, Inc., 780 S.W.2d 759, 762 (Tenn.Ct. App. 1989). The operation of the common-law right of sepulchre does not depend on the nature of the disposition of the decedent's remains. Thus, the right exists notwithstanding whether the decedent is buried or cremated.

2 By citing Justice Caldwell's opinion in Thompson v. State, I do not endorse the notion that only "Christian" burials are sacred.

3 The precise holding of the Minnesota Supreme Court was that "the right to the possession of a dead body for the purposes of decent burial belongs to those most intimately and closely connected with the deceased by domestic ties, and that this is a right which the law will recognize and protect." Larson v. Chase, 50 N.W. at 239.

In 1982, the Tennessee General Assembly enacted a statute confirming the enforceability of written designations of cremation.⁴ In the absence of the decedent's direction regarding the disposition of his or her remains, the statute identified and prioritized to whom the cremated remains should be delivered. Tenn. Code Ann. § 62-5-501(b). However, the statute did not address who, other than the decedent during his or her lifetime, could authorize the cremation of a decedent's remains. Thus, it did not affect the common-law right of sepulchre. The statute was repealed in 1999.⁵

4 Act of Mar. 25, 1982, ch. 703, 1982 Tenn. Pub. Acts 273, codified at Tenn. Code Ann. § 62-5-501 (Supp. 1983).

5 Act of May 13, 1999, ch. 215, § 12, 1999 Tenn. Pub. Acts 469, 486.

In 1999, the Tennessee General Assembly enacted a detailed statutory scheme governing the disposition of a decedent's remains by cremation.⁶ One of these statutes — Tenn. Code Ann. § 62-5-503 — contained a hierarchical priority of the persons who were entitled to act as the "authorizing agent"⁷ for the cremation of a dead human body. While Tenn. Code Ann. § 62-5-503(a) identified and ranked nine classes of persons who were statutorily permitted to act as a decedent's authorizing agent, only three of these classes are relevant to the issues in this case. These classes, in order of priority, were:

6 Act of May 13, 1999, ch. 215, 1999 Tenn. Pub. Acts 469, codified at Tenn. Code Ann. §§ 62-5-501 through-511 (Supp. 1999). It is perhaps not coincidental that at the time the General Assembly enacted these statutes, the Cremation Association of America was circulating a draft Model Cremation Law containing many provisions similar to those found in Tennessee's statutes. Cremation Ass'n of N. Am. Model Cremation Law and Explanation, http://www.cremationassociation.org/docs/ model-cremation-law.pdf. This industry created model law "served as a basis for many state legislatures that wanted to enact legislation allowing constituents to designate cremation as the method of disposition." Tracie M. Kester, Note, Uniform Acts — Can the Dead Hand Control the Dead Body? The Case for a Uniform Bodily Remains Law, 29 W. New Eng. L. Rev. 571, 582 (2007).

7 Tenn. Code Ann. § 62-5-501(3) defined an "authorizing agent" as "the person or persons who are entitled to order the cremation of a decedent or body parts and to order the final disposition of the cremated remains of a decedent or body parts."

(1) The spouse of the decedent, at the time of the decedent's death;

(2) The decedent's surviving adult children. If the decedent is survived by more than one (1) adult child, any adult child of the decedent who states on the cremation authorization form that all the decedent's other adult children have been notified of the decedent's death and of the plans to cremate the decedent and that none of them have expressed an objection to the cremation, may serve as the authorizing agent;

(3) The decedent's surviving parent or, if the decedent was under eighteen (18) years of age at death, a surviving parent or the guardian or custodian of the decedent. If the decedent is survived by both parents, either of them may serve as the authorizing agent by stating on the authorization form that the other parent has been notified of the decedent's death and of the plans to cremate the decedent and that the other parent expressed no objection to the cremation.

When these new statutes became effective on July 1, 1999, they operated in conjunction with and displaced the common-law right of sepulchre only to the extent that they were inconsistent with the common law. The statutes had no effect on the common-law right of sepulchre in the context of burial. However, they governed the disposition of a decedent's remains by cremation. Thus, with regard to the priority of persons empowered to authorize cremation, Tenn. Code Ann. § 62-5-503(a)(1), like the common law, vested in the decedent's surviving spouse the prerogative to authorize cremation. In the absence of a surviving spouse, Tenn. Code Ann. § 62-5-503(a) provided additional specific priorities that differed from the common law.

The 1999 statutory priorities governing the persons permitted to authorize the cremation of human bodies lasted less than one year. In response to intense objections from the public, ⁸ the Tennessee General Assembly repealed them effective on May 22, 2000, ⁹ and left no other statute prioritizing the ability to authorize the disposition of a decedent's remains in their place.¹⁰

8 Representative Howard Kerr, the House sponsor of the 2000 legislation, reminded his colleagues during the final consideration of the bill on March 20, 2000:

Last year . . . we passed the law on cremation that did two things. It mandated a twenty-four hour delay after death of the individual before the body could be cremated, and second, it stipulated a sequence of survivors that could make decisions regarding the disposition of the body. You will recall that the public reactions against these provisions were very negative and very strong, and they asked us to do something about it.

9 Act of May 11, 2000, ch. 779, 2000 Tenn. Pub. Acts 2231.

10 The Uniform Anatomical Gift Act, which was first enacted in 1969, Act of Mar. 25, 1969, ch. 35, 1969 Tenn. Pub. Acts 62, and the revised Uniform Anatomical Gift Act, which was enacted in 2007, Act of May 29, 2007, ch. 428, 2007 Tenn. Pub. Acts 605, codified at Tenn. Code Ann. §§ 68-30-101 through -120 (Supp. 2009), are limited in their scope and, by their own terms, do not apply to the disposition of a decedent's remains. Tenn. Code Ann. § 68-30-103 states that these statutes apply only "to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift."

B.

The first issue posed by the United States District Court does not require this Court to construe any of the statutes governing the cremation of human bodies because these statutes no longer contain a hierarchical prioritization of the classes of persons who may authorize a cremation. Our only task with regard to the first issue is to ascertain the legal consequences of the General Assembly's decision in 2000 to repeal the priorities in Tenn. Code Ann. § 62-5-503(a). We are not required or empowered to parse the Tennessee Code Annotated for other statutes that might contain a workable framework for resolving this dispute.

Apart from the judiciary's prerogative to say what the Constitution of Tennessee means, decisions regarding the public policy of this state rest with the General Assembly. Schneider v. City of Jackson, 226 S.W.3d 332, 344 (Tenn. 2007); Estrin v. Moss, 221 Tenn. 657, 669, 430 S.W.2d 345, 350 (1968). This Court is not the forum where general public policy issues should be resolved, Lavin v. Jordan, 16 S.W.3d 362, 369 (Tenn. 2000), and thus this Court is "hot free to establish what its members believe to be the best policy for the State." Smith v. Gore, 728 S.W.2d 738, 746 (Tenn. 1987). When we undertake to do so, we are usurping the constitutional prerogatives of the General Assembly. Cavender v. Hewitt, 145 Tenn. 471, 476, 239 S.W. 767, 768 (1921).

The common law provides one of the most reliable backgrounds upon which an analysis of the objects and purposes of legislative action may be determined. See 2B Norman J. Singer J.D. Shambie Singer, Statutes and Statutory Construction § 50:1, at 163 (7th ed. 2008) (hereinafter " Statutes and Statutory Construction"). Accordingly, all statutes and legislative actions may be construed in light of the common law and the scheme of jurisprudence existing at the time of the legislative action. Statutes and Statutory Construction § 50:1, at 160.

The General Assembly is presumed to know the state of the existing law when it enacts legislation. Sullivan ex rel. Wrongful Death Beneficiaries of Sullivan v. Chattanooga Med. Investors, LP., 221 S.W.3d 506, 511-12 (Tenn. 2007); State v. Hawk, 170 S.W.3d 547, 552 (Tenn. 2005). This presumption includes the General Assembly's knowledge of the state of the common law when it enacts legislation. Statutes and Statutory Construction § 50:1, at 164. Thus, legislative acts are construed with reference to the common law and should not be construed to displace the common law any further than they expressly declare or necessarily imply. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 679 (Tenn. 2002); Harbison v. Briggs Bros. Paint Mfg. Co., 209 Tenn. 534, 546, 354 S.W.2d 464, 470 (1962); Nichols v. Atnip, 844 S.W.2d 655, 659 (Tenn.Ct.App. 1992). To the extent that a legislative act does not supersede the common law, the common law continues in force. Lively v. Am. Zinc Co. of Tenn., 137 Tenn. 261, 273, 191 S.W. 975, 978 (1917); State v. Cooper, 120 Tenn. 549, 553, 113 S.W. 1048, 1049 (1908).

C.

Prior to 1999, the common-law right of sepulchre provided the principles that guided the courts when they were called upon to resolve disputes regarding the disposition of a decedent's remains. Rather than being rigid, these principles were conceived in equity and were sufficiently flexible to enable courts, when called upon, to consider each case based on its unique facts and to fashion an equitable remedy. Estes v. Woodlawn Meml Park, Inc., 780 S.W.2d at 762.

In 1999, the General Assembly replaced these flexible common-law rules, at least insofar as they applied to cremation, with a more rigid set of rules and priorities. These statutes displaced the common law to the extent that they were inconsistent with the common law. However, less than one year later, the General Assembly repealed many of the statutes that it had enacted in 1999, including the statutes that dictated who had the authority to authorize the cremation of a decedent's remains. The repeal of the 1999 statutes had two legal effects. The first effect was to remove these statutes from Tennessee law and to treat them as if they had never existed, except with regard to transactions and other matters that arose and were completed while the statutes were in effect. State v. Morris, 136 Tenn. 157, 162, 189 S.W. 67, 68 (1916). The second legal effect of the repeal of the 1999 statutes was to revive the common law as it was before the enactment of the repealed 1999 statutes. Statutes and Statutory Construction § 50:1, at 165-67.

Unlike other states whose legislatures have enacted general statutory provisions governing the persons who may authorize the disposition of a decedent's remains, ¹¹ Tennessee has never enacted broad statutory priorities regarding who may authorize the disposition of a decedent's remains. Thus, from and after May 22, 2000 — the effective date of the 2000 legislation repealing the 1999 statutes — the principles for determining the persons who could authorize the cremation of a decedent's remains are derived from the common-law right of sepulchre.

11 See, e.g., Ala. Code § 34-13-11 (2007); Colo. Rev. Stat. § 15-19-106 (2008); Ind. Code § 23-14-31-26 (Supp. 2009); Me. Rev. Stat. Ann. tit. 22, § 2843-A (Supp. 2009); Minn. Stat. § 149A.80 (Supp. 2009); S.C. Code Ann. § 32-8-320 (2007).

D.

The answer to the first issue posed by the United States District Court is found in Tennessee's version of the common-law right of sepulchre. Under the common law, a decedent's surviving spouse has primary authority to decide on the disposition of the decedent's remains. In the absence of a surviving spouse, the decision falls to the decedent's "next of kin."

The term "next of kin" has a well-defined and settled meaning. It means the next or nearest in blood following the line of consanguinity, ¹² and those persons entitled to the estate of an intestate decedent under the laws distribution. Fariss v. Bry-Block Co., 208 Tenn. 482, 489, 346 S.W.2d 705, 708 (1961); Lakins v. Isley, 200 Tenn. 353, 357, 292 S.W.2d 389, 391 (1956); Black's Law Dictionary 1070 (8th ed. 2004) (defining "next of kin" as "[t]he person or persons more closely related to a decedent by blood or affinity" and as "[a]n intestate's heirs — that is, the person or persons entitled to inherit personal property from a decedent who has not left a will"). Tennessee courts have long recognized that "[t]he strict legal meaning of the phrase `next of kin' is `next or nearest in blood.' In ascertaining who the next of kin is, the law follows the line of consanguinity. Such is the general rule of the common law. It is the same in this state under our general statute of distribution." Helms v. Elliott, 89 Tenn. 446, 450, 14 S.W. 930, 931 (1890); see also, e.g., Sneed v. Henderson, 211 Tenn. 572, 576-77, 366 S.W.2d 758, 760 (1963); In re Estate of Dobbins, 987 S.W.2d 30, 36 (Tenn.Ct.App. 1998); House v. Gibson, 827 S.W.2d 310, 311-12 (Tenn.Ct.App. 1991). Tennessee's statutory laws of distribution and dissent, intestate succession, "follow the lines of consanguinity." Union Planters Nat'l Bank v. Corbitt, 63 Tenn.App. 430, 474 S.W.2d 139, 143 (1971); Black v. Washam, 57 Tenn.App. 601, 603, 421 S.W.2d 647, 648 (1967).

12 The term "consanguinity" is both a lay and technical term. Bryan A. Garner, A Dictionary of Modern Legal Usage 204 (2d ed. 1995). It connotes relationship by blood. Tudor v. S. Trust Co., 193 Tenn. 331, 334, 246 S.W.2d 33, 34 (1952).

In this regard, Tenn. Code Ann. § 31-2-104(b) (2007) states that when an intestate decedent has no surviving spouse, his or her estate passes as follows:

(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;

(2) If there is no surviving issue, to the decedent's parent or parents equally.

Even though the parents and the children of a decedent are both related to the decedent in the same degree, the children of the decedent have the preference. 2 Jack Robinson et al., Pritchard on the Law of Wills and Administration of Estates § 567, at 65 (6th ed. 2007).

Based on these principles, the decedent's fiancée does not have authority to decide on the disposition of his remains because she is neither a spouse nor related to the decedent by blood. Both the decedent's child and the decedent's mother are related to the decedent by blood and are related to the decedent in the first degree. However, between these two persons, Tenn. Code Ann. § 31-2-104(b) gives the preference to the decedent's child. Thus, applying the right of sepulchre, the decedent's child's right to decide upon the manner of the disposition of the decedent's remains is superior to that of the decedent's mother.

E.

The decedent's mother insists, however, that giving the decedent's fourteen-year-old child the responsibility to decide on the disposition of the decedent's remains would be absurd because the child is a minor. I find no basis in the common law or in the decisions of this Court to create a categorical rule that a minor child cannot under any circumstance decide on the disposition of a deceased parent's remains.

Tennessee courts have not addressed this question directly. However, this Court has recognized that "minors achieve varying degrees of maturity and responsibility (capacity)" and that "conditions in society have changed to the extent that maturity is now reached at earlier stages of growth than at the time the common law recognized the age of majority at 21 years." Cardwell v. Bechtol, 724 S.W.2d 739, 744-45 (Tenn. 1987). Based on this recognition, this Court has adopted the "mature minor exception" to the common-law rule requiring parental consent before a physician can treat a minor. Under this exception, this Court recognized a rebuttable presumption that persons between the ages of fourteen and eighteen have the capacity to make their own decisions and to authorize medical treatment without their parents' consent. Cardwell v. Bechtol, 724 S.W.2d at 749.

The same recognition that prompted this Court to recognize the "mature minor exception" has provided the Court of Appeals with the basis for concluding that minors have the capacity to consent to an abortion and to obtain birth control information and supplies without their parents' consent. Roddy v. Volunteer Med. Clinic, Inc., 926 S.W.2d 572, 576 (Tenn.Ct.App. 1996) (capacity to consent to an abortion); Decker v. Carroll Acad., No. 02A01-9709-CV-00242, 1999 WL 332705, at *14 (Tenn.Ct. App. May 26, 1999) (No Tenn. R.App. P. 11 application filed) (capacity to seek and obtain birth control information and supplies).

The General Assembly has also recognized that persons under the age of eighteen may have the capacity to make significant and important decisions and to engage in activities that were traditionally viewed as adult activities. For example, children may begin working part-time when they are fourteen years old.¹³ They may obtain a learner's permit to drive a motor vehicle when they are fifteen years old.¹⁴ They may lease a safety deposit box.¹⁵ They may marry if they are at least sixteen years old or at a younger age with judicial approval.¹⁶ Minors may also obtain contraceptive advice and supplies, ¹⁷ consent to prenatal care, ¹⁸ seek judicial consent for an abortion, ¹⁹ and surrender a child for adoption.²⁰

13 Tenn. Code Ann. § 50-5-104 (2008).

14 Tenn. Code Ann. § 55-50-311(a)(1) (2008).

15 Tenn. Code Ann. § 45-2-904 (2007).

16 Tenn. Code Ann. §§ 36-3-105(a), 107(a)(1)(A) (2005).

17 Tenn. Code Ann. § 68-34-107 (2006).

18 Tenn. Code Ann. § 63-6-223 (2004).

19 Tenn. Code Ann. § 37-10-303(b) (Supp. 2009).

20 Tenn. Code Ann. § 36-1-110(a) (2005).

There are few reported opinions addressing application of the right of sepulchre to circumstances involving the capacity of minor children to make decisions regarding the disposition of the remains of a deceased parent. However, the opinion most on point concludes that minor children have the capacity to make these decisions. The case involved the death of a divorced father who had two daughters, fourteen and fifteen years old, who were living with their mother. The decedent's parents notified the daughters and the decedent's former wife of his death and received their authorization to make arrangements for his burial. Accordingly, the decedent's parents buried their son in Worcester, Massachusetts where they resided. Stackhouse v. Todisco, 370 Mass. 860, 346 N.E.2d 920, 921 (1976).

Following the burial, the decedent's former wife filed suit on behalf of her two daughters seeking authorization to exhume the decedent's remains and bury them in Ashland, Massachusetts where she and the children resided. The trial court recognized the right of the decedent's daughters to decide on the location of their father's grave but determined that the decision to move the decedent's grave could be made only after one of the daughters reached majority. Stackhouse v. Todisco, 346 N.E.2d at 922. The decedent's former wife appealed on behalf of the daughters. The Supreme Judicial Court of Massachusetts held:

In the absence of direction from the decedent, a surviving spouse, or, failing such a spouse (as here), then the decedent's next of kin, have a "possession" of the body so that they may dispose of it for burial according to their wishes. . . . The judge below recognized the right of the daughters as next of kin . . . and the guardian's only objection is that its effectuation was postponed to the attainment of age (which we take to be eighteen). We think that this was a sound precaution to ensure that the decision as to reburial is not merely that of the mother as guardian; but the judge is at liberty to authorize the removal of the body earlier if he satisfies himself of the genuineness of the daughters' desire.

Stackhouse v. Todisco, 346 N.E.2d at 922. Accordingly, the Supreme Judicial Court of Massachusetts recognized that the decedent's two minor daughters could decide where their father would be buried as long as the trial court was satisfied that the decision was theirs and not their mother's.

I reach the same conclusion as the Supreme Judicial Court of Massachusetts. Children of the age of fourteen or older may decide on the manner of the disposition of the remains of their deceased parent as long as they appear to have the capacity to make a decision of that import and as long as the decision is their own. Based on the "mature minor exception" recognized in Cardwell v. Bechtol, 724 S.W.2d at 749, I would recognize that a child fourteen years of age and older is presumed to have the capacity to decide on the disposition of a deceased parent's remains. However, this presumption is rebuttable and thus may be challenged in court. If the capacity of a minor child to decide on the disposition of his or her parent's remains is challenged, the question must be decided by the trier of fact. See Wells v. McNutt, 136 Tenn. 274, 277, 189 S.W. 365, 366 (1916).²¹

21 By the same token, if the capacity of an adult to make a decision regarding the disposition of a decedent's remains is challenged, the decision regarding the adult's capacity is a question of fact, not a question of law.

II.

The second question certified by the United States District Court is as follows:

If the answer to Question # 1 is such that the fourteen-year-old minor child has no legal control or has no superior or exclusive right of control over the disposition of the remains of his deceased parent, is such a child nonetheless an "heir" of the decedent as that term is used in § 62-5-511, Tennessee Code Annotated, such that an operator of a crematory facility acting without malicious purpose or bad faith, and not in a wanton or reckless manner, in cremating the remains of the decedent in accordance with the instructions set forth by the child is not liable for damages in a civil action for such cremation, as provided by the said statute?

I would answer this question by stating that a fourteen-year-old child, who has the capacity to make his or her own independent decisions, may make a decision regarding the disposition of his or her deceased parent's remains. I would further answer the question by stating that a fourteen-year-old child of a decedent is an "heir" of the decedent for the purpose of Tenn. Code Ann. § 62-5-511(a)(2) (2009).

A.

This issue is separate and distinct from the first issue presented by the United States District Court. It involves the "safe harbor" provision for operators of crematory facilities that provides a defense against claims for civil damages in certain circumstances. The scope of the current safe harbor provision in Tenn. Code Ann. § 62-5-511(a)(2) can be elucidated by considering its history.

As part of the 1999 industry-backed legislation governing the disposition of a decedent's remains by cremation, the General Assembly included a provision that created a "safe harbor" for operators of crematory facilities whose conduct was not "made with malicious purpose, in bad faith, or in a wanton or reckless manner." In accordance with the original 1999 version of Tenn. Code Ann. § 62-5-511(a)(2), the operator of a crematory facility could not be held liable for damages in a civil action for

[h]aving performed the cremation of the decedent . . . or having released or disposed of the cremated remains in accordance with the instructions set forth in the cremation authorization form executed in person by the person authorized to serve as the authorizing agent for the cremation of the decedent.

Tenn. Code Ann. § 62-5-511(a)(2) (Supp. 1999). In addition, Tenn. Code Ann. § 62-5-511(b)(1) insulated an operator of a crematory facility from civil damages for refusing to accept a dead human body or to perform a cremation when the operator "has actual knowledge that there is a dispute regarding the cremation of the decedent . . . and the operator has not received an order of the court having jurisdiction ordering the cremation of the decedent."

As of result of its decision in 2000 to repeal Tenn. Code Ann. § 62-5-503 regarding the priorities for persons who could serve as authorized agents, the General Assembly was required to rewrite the "safe harbor" provision in Tenn. Code Ann. § 62-5-511(a)(2). Accordingly, it amended Tenn. Code Ann. § 62-5-511(a)(2), and the immunity from liability for civil damages now applies to crematory facility operators who have

performed the cremation of the decedent . . . or [have] released or disposed of the cremated remains in accordance with the instructions set forth by the decedent or an heir or personal representative of the decedent.

The provision in the current version of Tenn. Code Ann. § 62-5-511(a)(2) applicable to "an heir or personal representative of the decedent" is far broader than the 1999 version of Tenn. Code Ann. § 62-5-511(a)(2). As it now reads, Tenn. Code Ann. § 62-5-511(a)(2) provides a safe harbor to operators of crematory facilities who perform a cremation in accordance with the directions of any person who is an heir or the personal representative of the decedent, even if that person is not the decedent's next of kin.

When a word in a statute has a well recognized common-law meaning, that meaning will be given to the word unless a different meaning is required based on the context in which the word appears or on the purpose of the statute. Lively v. Am. Zinc Co. of Tenn., 137 Tenn. at 272-73, 191 S.W. at 978; Scholze v. Scholze, 2 Tenn. App. 80, 92, 1925 WL 1935, at *8 (1925). The technical meaning of the word "heirs" includes the class of persons appointed by law to succeed to a decedent's real estate in the case of intestacy. Alexander v. Wallace, 76 Tenn. 569, 572 (1881); see also Tenn. Code Ann. § 31-1-101(5) (2007). It has also been more broadly understood to mean the class of persons upon whom descent is cast by the statute of descent, including children and grandchildren. Patterson v. Alexander, 509 S.W.2d 834, 835 (Tenn. 1974).

Unlike the term "next of kin," the term "heirs" embodies a class of eligible persons. It does not inherently differentiate and prioritize among the class of persons who qualify as an "heir" of the decedent. Thus, a person who is an "heir" of the decedent may also be the decedent's next of kin.

When the General Assembly changes the language of a statute, judges must assume that the change was deliberate. State v. Turner, 193 S.W.3d 522, 527 (Tenn. 2006). They must also assume that the General Assembly means what it says. State v. Goodman, 90 S.W.3d 557, 564 (Tenn. 2002); Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn. 1996). I have concluded that the General Assembly deliberately chose to use the broad term "heir" rather than the narrower term "next of kin" in Tenn. Code Ann. § 62-5-511(a)(2) in order to provide operators of crematory facilities with the broadest possible safe harbor from civil damages.²²

22 During the Senate Commerce Committee's hearing on the legislation on March 20, 2000, Senator Tim Burchett, one of the sponsors, stated that "[t]he amendment assures no liability to a cremation facility or funeral establishment for their disposition of the body." He also stated that the legislation

deletes all references in the present law to any type of required cremation form, alternative container, and authorizing agent including section 62-5-503, which set up a priority of persons who could serve as an authorizing agent. That was just more of the bureaucracy that there was confusion over. So we just took that out. Remove the confusion.

The question as framed by the United States District Court presumes that the operator of the crematory facility was acting without malicious purpose or bad faith and was not acting in a wanton or reckless manner. Therefore, based on the limited facts provided by the United States District Court, I would answer the second question by stating simply that the decedent's fourteen-year-old child is both the decedent's next of kin for the purpose of the application of the common-law right of sepulchre and the decedent's heir for the purpose of Tenn. Code Ann. § 62-5-511(a)(2).

III.

The third question certified by the United States District Court is as follows:

Does the defendant funeral home, H F, Inc., fall under the definition of a crematory facility for purposes of § 62-5-511, Tennessee Code Annotated, given its role in the disposition of the decedent's remains?

Based on the limited facts provided by the United States District Court, I concur with the Court's conclusion that Sellars Cremation Service, Inc. is an operator of a crematory facility and that H F, Inc. is not.