Kennedy v. Carriage Cemetery Serv., Inc., Case No.: 2:08-cv-01102-GMN-RJJ

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
• Writing for the Court: GLORIA M. NAVARRO
• Citation: 727 F.Supp.2d 925
• Parties: Theodore KENNEDY, Jr. et al., Plaintiffs, v. CARRIAGE CEMETERY SERVICES, INC. et al., Defendants.
• Docket Number: Case No.: 2:08-cv-01102-GMN-RJJ
• Decision Date: 19 July 2010

727 F.Supp.2d 925

Theodore KENNEDY, Jr. et al., Plaintiffs,
v.
CARRIAGE CEMETERY SERVICES, INC. et al., Defendants.

Case No.: 2:08-cv-01102-GMN-RJJ.

United States District Court,
D. Nevada.

July 19, 2010.

727 F.Supp.2d 927

Natricia C. Tricano, The Tricano Law Office, Las Vegas, NV, for Plaintiffs.

Kelly A. Evans, Chad R. Fears, Jay Joseph Schuttert, Snell & Wilmer LLP, Las Vegas, NV, for Defendants.

ORDER

GLORIA M. NAVARRO, District Judge.

This case arises out of the accidental cremation of Theodore Kennedy, contrary to the wishes of his family that he be buried. Defendant Palm Mortuary has settled with Plaintiffs, leaving Carriage Cemetery Services, Inc. ("Carriage") as the only remaining Defendant. Pending before the Court is Carriage's Motion for Partial Summary Judgment (# 98). Plaintiffs filed a response two days late.¹ For

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the reasons given herein, the Court grants the motion in part and denies it in part.

I. FACTS AND PROCEDURAL HISTORY

On December 7, 2007, Theodore Kennedy ("Kennedy") passed away from cancer. (# 56 ¶ 15). Kennedy was survived by his son, Plaintiff Theodore Kennedy, Jr.; his brothers, Plaintiffs James Kennedy, Willie Wade, and Carnell Washington ("Washington"); his sister, Plaintiff Viola Washington; and two sisters who are not parties to this action. Wade and Washington contracted with Carriage to provide burial and funeral services for Kennedy. ( Id. ¶ 17). Plaintiffs had previously made known to Carriage's representatives Shannon Nordyke and Daniel Lang their distaste for the practice of cremation, and Carriage's representatives assured them that Kennedy could not be cremated without obtaining the family's consent. ( Id. ¶ 14). On December 12, 2007, Nordyke asked Wade to come to her office alone where she informed Wade that Palm Mortuary had cremated Kennedy's remains after Carriage transferred his remains there. ( Id. ¶¶ 19-20).

On July 28, 2008, the Estate of Theodore Kennedy, Willie Wade, Carnell Washington, Viola Washington, James Kennedy, and Theodore Kennedy, Jr. sued Carriage in the Clark County District Court on nine causes of action: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) breach of fiduciary duty; (4) negligent misrepresentation; (5) negligence; (6) negligent interference with remains and intentional mishandling of a corpse; (7) intentional infliction of emotional distress ("IIED"); (8) negligent infliction of emotional distress ("NIED"); and (9) unjust enrichment. (# 1, Ex. A). Defendants removed.

On September 18, 2009, the Court granted Plaintiffs leave to amend the Complaint, with the caveat that no claims could lie by the Estate for emotional distress or by the Estate, James Kennedy, or Viola Washington for breach of fiduciary duty. ( See # 64 at 6:4-8). The First Amended Complaint ("FAC") (# 56) added Palm Mortuary as a Defendant ² and listed ten causes of action: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) breach of fiduciary duty; (4) negligent misrepresentation; (5) negligence; (6) negligent interference with remains and intentional mishandling of a corpse; (7) IIED; (8) NIED; (9) unjust enrichment; and (10) declaratory relief.

Carriage, the only remaining Defendant, has moved for partial summary judgment on the causes of action for breach of the covenant of good faith and fair dealing, breach of fiduciary duty, negligent misrepresentation, unjust enrichment, IIED, and NIED. Carriage also requests summary judgment on the issue of punitive damages.

II. SUMMARY JUDGMENT STANDARDS

The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. "Summary

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judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir.2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir.1999)). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining summary judgment, a court applies a burden-shifting analysis:

When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.

C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50, 106 S.Ct. 2505.

III. ANALYSIS

A. Breach of the Covenant of Good Faith and Fair Dealing

Every contract gives rise to a duty not to act arbitrarily or unfairly to the detriment of the other party.

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Nelson v. Heer, 123 Nev. 217, 163 P.3d 420, 427 (2007). Breach of this duty is a tort different in nature from a claim for the underlying breach of contract. See Ins. Co. of the West v. Gibson Tile Co., Inc., 122 Nev. 455, 134 P.3d 698, 702 (2006). A bad faith claim is predicated on the abuse of a fiduciary relationship existing between parties to certain kinds of contracts; it does not arise simply from a particularly egregious or willful breach of a contract, as litigants often imply by reflexively pleading bad faith along with nearly every breach of contract claim:

Although every contract contains an implied covenant of good faith and fair dealing, an action in tort for breach of the covenant arises only "in rare and exceptional cases" when there is a special relationship between the victim and tortfeasor. A special relationship is "characterized by elements of public interest, adhesion, and fiduciary responsibility." Examples of special relationships include those between insurers and insureds, partners of partnerships, and franchisees and franchisers. Each of these relationships shares "a special element of reliance" common to partnership, insurance, and franchise agreements. We have recognized that in these situations involving an element of reliance, there is a need to "protect the weak from the insults of the stronger" that is not adequately met by ordinary contract damages. In addition, we have extended the tort remedy to certain situations in which one party holds "vastly superior bargaining power."

Id. (footnotes omitted). The Washington Supreme Court has similarly described the bad faith tort as "the intentional abuse of a fiduciary relationship." Kirk v. Mt. Airy Ins. Co., 134 Wash.2d 558, 951 P.2d 1124, 1126 (1998). Accordingly, the most common and appropriate targets of bad faith claims are insurers. See, e.g., Allstate Ins. Co. v. Miller, 212 P.3d 318, 324 (Nev.2009).

The threshold inquiry, therefore, is whether a funeral home, cemetery, or mortuary owes a fiduciary duty to its bereaved customers. The Nevada Supreme Court does not appear to have addressed the issue, but the...