Articles
Revisiting Tri-State and Bayview’s Skeletons:
The Legal Lessons Learned From Two Outrageous Examples Of Crematory Misconduct
By Jon L. Farnsworth, Esq. and Randi J. Williams
An old adage states there are skeletons in everyone’s closet. Unfortunately, in the last decade, two particular incidents illustrate there are many skeletons in some crematories’ closets that don’t always properly find their way into a retort or to their proper resting place. While the vast majority of crematories are reputable businesses that operate with the highest ethical standards, the risk of continued abuse remains. This article addresses the manners in which funeral homes can mitigate their liability when contracting with third-party crematories and other contractors.
The Tri-State Incident
It’s been nearly eight years since over 300 decomposed bodies were discovered on the property of Tri-State Crematory outside LaFayette, Georgia. The bodies were sent to Tri-State for cremation, presumably from other funeral homes that did not have a cremation retort. However, Tri-State’s operator failed to cremate the bodiesas promised, left the bodies to decompose on Tri-State’s property, and provided fake ashes (concrete dust) to family members of the deceased.
In the aftermath of the gruesome discovery, family members of the deceased asserted numerous lawsuits against Tri-State and the funeral homes that contracted with Tri-State. In just one of the suits, a settlement of $18 million was apparently paid. One commentator who followed the lawsuits estimated each funeral home involved may have ultimately paid nearly $9 million to settle claims!
The Bayview Incident
Several years after Tri-State, Bayview Crematory in Seabrook, New Hampshire was shut down by authorities following the discovery of improper cremation practices. Bayview allegedly commingled cremations, had unlabeled or unidentified remains, and forged cremation permit documentation.
In addition to criminal charges brought against Bayview’s owners, numerous civil claims were asserted by family members of those affected by Bayview’s actions. Similar to the Tri-State matter, the Bayview cases targeted both Bayview and the funeral homes that contracted with Bayview. A commentator who followed the initial stages of the litigation estimated the liability stemming from the Bayview fiasco would reach upwards of $100 million.
A decision recently reviewed by New Hampshire’s Supreme Court upheld the 2007 awards to several plaintiffs of $200,000 in emotional distress damages against Bayview. Other actions were settled for undisclosed sums or eventually dismissed after lengthy (and expensive) court battles.
Legal Lessons
Although the Tri-State and Bayview incidents are extreme examples of misconduct within the cremation industry, mistakes can also happen on a smaller scale, as evidenced by a Connecticut family’s discovery in December 2009 that their 95-year-old great-grandmother was mistakenly cremated after finding a stranger’s body in her casket. All of these incidents serve as helpful reminders that all funeral homes must take preemptive steps to insulate themselves from liability resulting from the misconduct (or innocent mistakes) of third-party contractors. Some practical legal lessons from Tri-State and Bayview incidents include:
- Only contract with reputable contractors that have a positive industry reputation.
- Confirm a contractor holds all necessary licenses, certifications, and permits. Require (certified) copies of these documents.
- Check the Secretary of State’s website to ensure the contractor is registered to do business within the state.
- Contact applicable state agencies and funeral home associations (i.e., State Department of Health, State Attorney General, etc.) to confirm whether there are any disciplinary records or unresolved complaints against a contractor.
- Ensure there is a written contract with the contractor outlining the rights, responsibilities, and liabilities of the parties.
- Ensure the contractor performs sufficient employee background checks and drug testing of its employees.
- Prevent a contractor from “outsourcing” work to a subcontractor (through contract provisions).
- Include an indemnification clause in any contract.
- Inspect the contractor’s facilities. Occasional unannounced site visits may also be prudent.
- Confirm, in writing, the applicable insurance coverage and limits for the funeral home and contractor. Request (certified) copies of insurance policies. Consult with an experienced insurance agent to ensure proper coverage exists and that special exclusions will not restrict coverage.
High Standard of Care Demands Extra Precaution
Funeral homes are held to a high standard of care relating to the handling of remains, even when using an outside contractor’s services (e.g., cremation, embalming, etc.). Funeral homes must take steps to ensure remains are entrusted to reputable parties and handled in accordance with family wishes and industry standards. Among other things, proper insurance coverage and a written agreement with contractors is highly recommended for funeral homes that seek to mitigate their legal liability.
This article is for educational purposes only and does not constitute legal advice.
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Jon L. Farnsworth, Esq. is an attorney with Felhaber, Larson, Fenlon & Vogt, P.A., a full-service law firm with offices located in St. Paul and Minneapolis, Minnesota. He represents business clients in commercial litigation and risk mitigation matters. |
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| Randi J. Williams is a law clerk with Felhaber. Randi is expected to graduate from the University of Minnesota Law School with her Juris Doctor (JD) Degree in May 2010. |
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Felhaber, Larson, Fenlon & Vogt, P.A. |
Felhaber, Larson, Fenlon & Vogt, P.A. |
www.felhaber.com |
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