Jackson v. McKay–Davis Funeral Home, Inc., Case No. 07–CV–1037.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtPATRICIA J. GORENCE
Citation830 F.Supp.2d 635
PartiesMarlenea JACKSON, and Erica Jackson, Plaintiffs,andAnthem Blue Cross Blue Shield United; United Healthcare Insurance Company, Involuntary Plaintiffs, v. McKAY–DAVIS FUNERAL HOME, INC., Suhor Industries, Inc., Oklahoma Wilberts Vaults, DHL Air Express, S.A., Travelers Insurance Company, and Hartford Casualty Insurance Company, Defendants.
Docket NumberCase No. 07–CV–1037.
Decision Date23 November 2011

830 F.Supp.2d 635

Marlenea JACKSON, and Erica Jackson, Plaintiffs,andAnthem Blue Cross Blue Shield United; United Healthcare Insurance Company, Involuntary Plaintiffs,
v.
McKAY–DAVIS FUNERAL HOME, INC., Suhor Industries, Inc., Oklahoma Wilberts Vaults, DHL Air Express, S.A., Travelers Insurance Company, and Hartford Casualty Insurance Company, Defendants.

Case No. 07–CV–1037.

United States District Court, E.D. Wisconsin.

Nov. 23, 2011.


[830 F.Supp.2d 639]

Ian T. Matyjewicz, James J. Gende, II, Christopher P. Katers, Ian T. Matyjewicz, Gende Law Offices SC, Pewaukee, WI, for Plaintiffs.

Matthew S. Mayer, Nicole L. Kreklau, Mallery & Zimmerman SC, Wausau, WI, for Involuntary Plaintiffs.

Jeffrey T. Nichols, Daniel K. Mullin, Remzy D. Bitar, Crivello Carlson SC, Christopher P. Riordan, Von Briesen & Roper SC, Milwaukee, WI, Daniel A. Haws, Kari L. Gunderman, Murnane Brandt, St. Paul, MN, for Defendants.
DECISION AND ORDER
PATRICIA J. GORENCE, United States Magistrate Judge.

On November 21, 2007, the plaintiffs, Marlenea and Erica Jackson, filed suit against McKay–Davis Funeral Home, Inc. (McKay–Davis), Suhor Industries (Suhor), Oklahoma Wilbert Vaults (Wilbert Vaults), and DHL Air Express, S.A. (DHL). The plaintiffs alleged causes of action for breach of fiduciary duty, negligent handling of human remains, and negligent infliction of emotional distress stemming from the loss of the cremated remains of Eric Jackson, Marlenea's husband and Erica's father. On May 29, 2008, the plaintiffs filed an amended complaint adding Travelers Insurance Company (Travelers) and Hartford Casualty Insurance Co. (Hartford) as defendants and adding a breach of contract claim against defendant DHL.

The case was assigned to this court according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72(b) (E.D.Wis.). The parties consented to the exercise of full jurisdiction by a United States magistrate judge. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332, based on diversity of citizenship. Venue is proper under 28 U.S.C. § 1391.

In cases brought under diversity jurisdiction, courts apply the law of the forum state unless the parties raise a conflicts of law issue. Employers Ins. of Wausau v. Stopher, 155 F.3d 892, 895 (7th Cir.1998); Wolverine Mut. Ins. v. Vance, 325 F.3d 939, 942 (7th Cir.2003). Here, the defendant states that the relevant laws are substantially similar in Wisconsin and Oklahoma or that no relevant laws exist in either state. The plaintiff expresses no position on the issue. Because the parties do not raise a conflicts issue, the court will apply the laws of Wisconsin. Therefore, the court will apply Wisconsin law as it believes the Wisconsin Supreme Court would apply it. Wolverine, 325 F.3d at 942.

On December 23, 2008, the court granted DHL's motion for partial summary judgment on the plaintiffs' claims of breach of fiduciary duty, negligent handling of human remains, and negligent infliction of emotional distress. On November 23, 2010, 2010 WL 4877912, the court granted DHL's motion for partial summary judgment on the plaintiffs' breach of contract claim, which was the only cause of

[830 F.Supp.2d 640]

action still pending against DHL. By stipulation, Suhor and Wilbert Vaults have been dismissed from this action. Thus, only McKay–Davis and Travelers remain as defendants in this action.

On January 28, 2011, defendant McKay–Davis filed a motion for summary judgment, asserting that plaintiff Erica Jackson should be dismissed because she lacks standing and has sustained no damages. Defendant McKay–Davis contends that plaintiff Marlenea Jackson, as the surviving spouse of Eric Jackson, is the sole and exclusive party who may maintain this action. In addition, defendant McKay–Davis contends that as to both plaintiffs, the tort claims and request for punitive damages should be dismissed as a matter of law. The motion has been fully briefed and will be addressed herein.

STANDARD FOR SUMMARY JUDGMENT

At the outset, the court notes that the defendant's motion for summary judgment as to the plaintiffs' breach of fiduciary duty claim challenges the sufficiency of the amended complaint under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). These cases address motions to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. However, because the defendant is moving for summary judgment, not dismissal of the complaint, the court will decide the merits of the plaintiff's breach of fiduciary duty claim as a matter of law, rather than examine the sufficiency of the complaint.

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460–61 (E.D.Wis.1991). “Material facts” are those facts that under the applicable substantive law “might affect the outcome of the suit.” See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over “material facts” is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A genuine issue of material fact is not shown by “the mere existence of some alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, 106 S.Ct. 2505, or by “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

The burden of showing the needlessness of a trial—(1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law—is upon the movant. In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. “ ‘In the light most favorable’ simply means that summary judgment is not appropriate if the court must make ‘a choice of inferences.’ ” Smith ex rel. Smith v. Severn, 129 F.3d 419, 426 (7th Cir.1997) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 [1962] [per curiam] ); see also

[830 F.Supp.2d 641]

Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir.1996) (quoting Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041 [7th Cir.1993] ). The choice between reasonable inferences from facts is a jury function. Id.; see also Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

Rule 56 of the Federal Rules of Civil Procedure provides that affidavits in support of summary judgment must “set out facts that would be admissible in evidence....” The Federal Rules of Evidence prohibit the admission of hearsay. See Fed.R.Evid. 802. Hearsay evidence, therefore, does not meet this evidentiary requirement. See Schindler v. Seiler, 474 F.3d 1008, 1012 (7th Cir.2007). Thus, any proposed findings of fact which do not set forth facts that would be admissible in evidence have not been included in the relevant facts.

RELEVANT UNDISPUTED FACTS 1

Eric Jackson died in Oklahoma City, Oklahoma on July 8, 2006. He was survived by his wife, Marlenea Jackson, and his minor daughter, Erica.

After Eric Jackson's death, plaintiff Marlenea Jackson contracted McKay–Davis, a mortuary funeral home, to handle Eric Jackson's funeral services. However, she later decided to cremate, rather than bury, her husband's body, because her daughter, Erica Jackson, “wanted to bring her daddy home.” (PPFOF ¶ 1.) McKay–Davis only performed services related Eric Jackson's funeral, such as picking-up Eric Jackson's body, embalming it, and preparing it for dressing and viewing during funeral services. Because McKay–Davis does not do cremations, it outsourced the cremation services of Eric Jackson, including the shipment of the cremains, to Suhor, a third-party crematory that cremates as a service to funeral homes.

Marlenea Jackson executed an Authorization for Cremation at McKay–Davis, which was witnessed by McKay–Davis employee Paulette Williams. The authorization states: “I request that following cremation, the FUNERAL HOME make disposition of the cremated remains as follows:” (PPFOF ¶ 38.) Mrs. Jackson wrote in the provided space: “ship to my home after cremation.” ( Id.) The Authorization does not indicate that Suhor, as opposed to McKay–Davis as stated in the document, would ship the cremated remains. McKay–Davis charged Marlenea Jackson $60 to have the cremains shipped.

Thereafter, Ms. Davis directed Suhor to ship Eric Jackson's cremated remains to Mrs. Jackson in Wisconsin. Belinda Spoonmore was Ms. Davis' primary contact at Suhor concerning the shipment of Eric Jackson's remains.

Ms. Davis testified that she told Marlenea Jackson that Suhor, not McKay–Davis, would be handling the cremation and shipment of her husbands' remains. Prior to the loss of her husband's remains, Marlenea Jackson had no contact with Suhor. Mrs. Jackson communicated directly and only with Connie Davis and she did not instruct Ms. Davis regarding how to send the remains.

On July 18, 2006, Ms. Davis contacted Mrs. Jackson regarding an authorization to split the cremated remains of Eric Jackson, which was needed to allow Eric Jackson's mother to receive half the cremains. In addition, Ms. Davis signed a Release of...

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  • Raab v. Wendel, Case No. 16-CV-1396
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 6, 2019
    ...on the party agreeing to act for the benefit of the other, such as a trust agreement." Jackson v. McKay-Davis Funeral Home, Inc., 830 F. Supp. 2d 635, 648 (E.D. Wis. 2011) (citing Merrill Lynch, Pierce, Fenner & Smith v. Boeck, 127 Wis.2d 127, 136, 377 N.W.2d 605, 609 (1985)). "A contract, ......
  • Dana v. Heartland Mgmt. Co., No. 108,052.
    • United States
    • Court of Appeals of Kansas
    • May 24, 2013
    ...addressing the issue have held that such a relationship does not exist. See, e.g.,Jackson v. McKay–Davis Funeral Home, Inc., 830 F.Supp.2d 635, 649–50 (E.D.Wis.2011) (no fiduciary relationship formed when funeral home assumed control over decedent's remains and agreed to return remains to p......
  • Johnson v. Bankers Life & Cas. Co., No. 13–cv–144–wmc.
    • United States
    • U.S. District Court — Western District of Wisconsin
    • September 20, 2013
    ...Id. at 757, 423 N.W.2d at 548 (citing Boeck, 127 Wis.2d at 136, 377 N.W.2d at 609);see also Jackson v. McKay–Davis Funeral Home, Inc., 830 F.Supp.2d 635, 648 (E.D.Wis.2011) (“[T]rust and confidence alone do not give rise to a fiduciary relationship.”). While plaintiff nevertheless argues th......
  • Lang v. Tharpe, 18-cv-1077-pp
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • May 19, 2022
    ...Wis.2d 127, 136 (Wis. 1985). A fiduciary relationship is not inherent in every contract. See Jackson v. McKay-Davis Funeral Home, Inc., 830 F.Supp.2d 635, 648 (E.D. Wis. 2011) (citing Merrill Lynch, 127 Wis.2d at 136). The plaintiffs have alleged only the element of a fiduciary duty, rather......
  • Request a trial to view additional results
10 cases
  • Raab v. Wendel, Case No. 16-CV-1396
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 6, 2019
    ...on the party agreeing to act for the benefit of the other, such as a trust agreement." Jackson v. McKay-Davis Funeral Home, Inc., 830 F. Supp. 2d 635, 648 (E.D. Wis. 2011) (citing Merrill Lynch, Pierce, Fenner & Smith v. Boeck, 127 Wis.2d 127, 136, 377 N.W.2d 605, 609 (1985)). "A contract, ......
  • Dana v. Heartland Mgmt. Co., No. 108,052.
    • United States
    • Court of Appeals of Kansas
    • May 24, 2013
    ...addressing the issue have held that such a relationship does not exist. See, e.g.,Jackson v. McKay–Davis Funeral Home, Inc., 830 F.Supp.2d 635, 649–50 (E.D.Wis.2011) (no fiduciary relationship formed when funeral home assumed control over decedent's remains and agreed to return remains to p......
  • Johnson v. Bankers Life & Cas. Co., No. 13–cv–144–wmc.
    • United States
    • U.S. District Court — Western District of Wisconsin
    • September 20, 2013
    ...Id. at 757, 423 N.W.2d at 548 (citing Boeck, 127 Wis.2d at 136, 377 N.W.2d at 609);see also Jackson v. McKay–Davis Funeral Home, Inc., 830 F.Supp.2d 635, 648 (E.D.Wis.2011) (“[T]rust and confidence alone do not give rise to a fiduciary relationship.”). While plaintiff nevertheless argues th......
  • Lang v. Tharpe, 18-cv-1077-pp
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • May 19, 2022
    ...Wis.2d 127, 136 (Wis. 1985). A fiduciary relationship is not inherent in every contract. See Jackson v. McKay-Davis Funeral Home, Inc., 830 F.Supp.2d 635, 648 (E.D. Wis. 2011) (citing Merrill Lynch, 127 Wis.2d at 136). The plaintiffs have alleged only the element of a fiduciary duty, rather......
  • Request a trial to view additional results

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