Dana v. Heartland Mgmt. Co.

• Decision Date: 24 May 2013
• Docket Number: No. 108,052.,108,052.
• Citation: 301 P.3d 772,48 Kan.App.2d 1048
• Parties: Edwin S. DANA, Sr., and Douglas E. Dana, Appellants, v. HEARTLAND MANAGEMENT COMPANY, INC., d/b/a Shawnee County Crematory, d/b/a Dove Cremation and Funeral Services, Richard L. Rausch, Jay W. Luehring, Lary K. Dodge, Daniel J. Werner, and Warren J. Newcomer, Appellees.
• Court: Kansas Court of Appeals

48 Kan.App.2d 1048

301 P.3d 772

Edwin S. DANA, Sr., and Douglas E. Dana, Appellants,

v.HEARTLAND MANAGEMENT COMPANY, INC., d/b/a Shawnee County Crematory, d/b/a Dove Cremation and Funeral Services, Richard L. Rausch, Jay W. Luehring, Lary K. Dodge, Daniel J. Werner, and Warren J. Newcomer, Appellees.

No. 108,052.

Court of Appeals of Kansas.

May 24, 2013.

Syllabus by the Court

1. The standard of review relating to summary judgment is discussed and applied.

2. In order to establish a claim of outrage, a plaintiff must prove: (1) the defendant engaged in intentional or reckless conduct; (2) such conduct was so extreme and outrageous as to permit recovery; (3) such conduct was causally connected to plaintiff's mental distress; and (4) the plaintiff's mental distress was so severe and extreme that no reasonable person should be expected to endure it.

3. Extreme and outrageous conduct goes beyond the bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized society.

4. Fright, concern, embarrassment, worry, and nervousness do not constitute sufficient harm to warrant the award of damages for extreme and outrageous conduct.

5. Recovery on a claim of intentional interference with a dead body requires proof of intentional or malicious conduct.

6. The Kansas Consumer Protection Act (KCPA) was enacted to protect consumers from suppliers who commit deceptive and unconscionable practices. K.S.A. 50–623(b).

7. The KCPA provides that no supplier shall engage in any deceptive act or practice in connection with a consumer transaction. K.S.A. 2012 Supp. 50–626(a). Deceptive acts and practices under the KCPA include the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo, or ambiguity as to a material fact; the willful failure to state a material fact; or the willful concealment, suppression, or omission of a material fact. K.S.A. 2012 Supp. 50–626(b)(2), (b)(3). A willful act under the KCPA is one performedwith a designed purpose or intent on the part of a person to do wrong or to cause injury to another.

8. The KCPA provides that no supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. K.S.A. 50–627(a). In determining whether an act or practice is unconscionable under K.S.A. 50–627(b), which is a question of law, the court shall consider the circumstances of which the supplier knew or had reason to know, such as whether the supplier made a misleading statement of opinion on which the consumer was likely to rely to the customer's detriment and whether the parties had unequal bargaining power or knowledge.

9. A fiduciary relationship exists where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence. Whether a fiduciary relationship exists depends on the facts and circumstances of each case. In reviewing a district court's determination of the existence or nonexistence of a fiduciary relationship, an appellate court is required to consider the evidence in the light most favorable to the party who prevailed below.

10. Two types of fiduciary relationships exist: (1) those specifically created by contract such as principal and agent and (2) those implied in law due to the factual situation surrounding the involved transactions and the relationship of the parties to each other and to the questioned transactions. A confidential relationship is not presumed, and the burden of proving such a relationship exists rests upon the party asserting its existence. A party may not unilaterally impose a fiduciary relationship on another without a conscious assumption of such duties by the one sought to be held liable as a fiduciary.

11. The mere fact that a customer places great trust and confidence in a funeral home for services rendered pursuant to a contract does not—in and of itself—serve to create a fiduciary relationship between the customer and the funeral home.

Karen S. Rosenberg and Paul K. Hentzen, of Krigel & Krigel, P.C., of Kansas City, Missouri, for appellants.

David R. Cooper and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, for appellees.

Before McANANY, P.J., BUSER and STANDRIDGE, JJ.

STANDRIDGE, J.

Edwin S. Dana, Sr., and Douglas E. Dana (plaintiffs) appeal from the decision of the district court to grant summary judgment in favor of the defendants—a funeral and cremation company and staff—on plaintiffs' claims related to the temporary loss of the cremated remains of plaintiffs' son and twin brother, respectively, Edwin Dana, Jr. Plaintiffs contend the district court erred in granting summary judgment in favor of the defendants on their claims of outrage, willful interference with Edwin Jr.'s cremated remains, violations of the Kansas Consumer Protection Act (KCPA), and breach of fiduciary duty. Plaintiffs also claim the district court erred in dismissing as moot their motion to amend petition to add a claim of punitive damages.

Facts

On August 12, 2010, the deceased body of Edwin Jr. was discovered in his Topeka home. Edwin Jr. was a Native American member of the Passamaquoddy Indian Tribe and a military veteran. On August 13, 2010, Douglas went to Dove Cremation and Funeral Service and met with Richard Rausch, a funeral director and manager, to make arrangements for Edwin Jr.'s cremation. Rausch also spoke to Edwin Sr. by phone and informed him that as the next of kin he was required to sign an authorization for cremation. Rausch prepared a document titled “Authority to Cremate and Order for Disposition” and faxed it to Edwin Sr., who signed the document and sent it back to Dove. The document included directions that Edwin Jr.'s cremated remains should be shipped via registered mail to Edwin Sr. at his home address in Maine. There was no shipment date indicated on the authorization form, but according to Edwin Sr.'s testimony, Rausch told him that the ashes would be shipped “as soon as possible; more than likely [August] 17th.” Conversely, Rausch claimed that he made no promises to Edwin Sr. or Douglas about when the remains would be sent. In alleged reliance on Rausch's promise to send Edwin Jr.'s remains by August 17, Edwin Sr. planned to have a wake, funeral, and burial on the Passamaquoddy Reservation in Maine on August 24–26, 2010.

On August 14, 2010, Douglas viewed Edwin Jr.'s body in the garage of the Penwell–Gabel Mid–Town Chapel. When a body is decomposed, as Edwin Jr.'s was, viewings generally occur in the chapel garage. Before viewing the body, Rausch had Douglas sign a waiver of liability acknowledging that the body was in an advanced state of decomposition. Upon viewing the body, Douglas performed a smudge, a ceremonial release of the spirit which involved putting a substance on Edwin Jr.'s body and waving an eagle's wing. Douglas placed some items, including a fan, beads, and an eagle's wing in the body bag with Edwin Jr. Douglas returned to the funeral home on August 15, 2010, and observed Edwin Jr.'s body as it was placed into the crematory retort.The cremation process

Newcomer Funeral Service Group owns the stock of Heartland Management Company, Inc., which does business as Dove Cremation and Funeral Services and Penwell–Gabel Funeral Homes. Shared Mortuary Services (SMS) is part of the Penwell–Gabel Funeral Homes and is an in-house centralized preparation center that performs cremation services at the Shawnee County Crematory. When a body is cremated there, the body is placed in a cooler until the time the cremation is to take place. Each body is accompanied throughout the process by a metal disk with a cremation ID number and a case record. The ID number is recorded on the case record, along with the following information: the date, the primary authorizing agent, the coroner's permit, the county, the container in which the body was brought to the crematory, and a description of the urn in which the cremated remains are to be placed. SMS also has a daily cremation log where the ID number is recorded along with the date and time the remains are placed inside and removed from the crematory retort.

At the time of Edwin Jr.'s cremation, when the body was placed into the retort, the metal ID disk was attached to a magnetic clip that hung on the outside. After processing, the remains were placed in a plastic bag and, along with the metal ID disk and case record, were taken to the SMS office where the ID number, name, location of death, date of cremation, and the responsible funeral home were entered in a log. The remains were placed in an urn and then put into a locked storage locker. When the remains were placed into an urn, the person who removed the remains from the crematory created three identical labels containing the deceased's name, the cremation ID number, the date of cremation, place of death, and the responsible funeral home. One label was affixed on the outside of the urn; one label was placed on a note card and placed outside of the locker; and one label was laminated, affixed to the metal ID disk, and placed inside the urn.

Edwin Jr.'s cremation and the search for his remains

At 9:46 a.m. on August 15, 2010, Jay Luehring, an embalmer and funeral director at Shawnee County Crematory, placed Edwin Jr.'s body into the retort to be cremated. At 6:30 p.m., Luehring removed Edwin Jr.'s ashes, placed them in a temporary urn, and created three labels for the remains. In creating the labels, Luehring did not look at or read the labels before affixing them to the urn, the note card, and the ID disk and did not compare the ID number on the metal disk to the number on the label.

Late in the afternoon of August 18, Lary Dodge, the manager of SMS, received Edwin Jr.'s death certificate via fax. Dodge unsuccessfully attempted to locate a locker or urn labeled with Edwin Jr.'s name in order to place the death certificate...