Moss v. Batesville Casket Co., Inc., No. 2005-CA-00372-SCT.

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtEasley, Justice
Citation935 So.2d 393
PartiesSusan R. MOSS, Tracy M. Nichols, Kenny R. Moss and Rory A. Garcia v. BATESVILLE CASKET COMPANY, INC. and Ott & Lee Funeral Home.
Docket NumberNo. 2005-CA-00372-SCT.
Decision Date27 July 2006

T. Jackson Lyons, Jackson, Evelyn Tatum Portie, Brandon, attorneys for appellants.

George Martin Street, Jr., James D. Holland, Jackson, J. Wade Sweat, Ridgeland, Marisa Campbell Atkinson, Clarksdale, attorneys for appellees.


EASLEY, Justice, for the Court.


¶ 1. Susan R. Moss, Tracy M. Nichols, Kenny R. Moss, and Rory A. Garcia (collectively, the "Plaintiffs") originally filed suit on December 7, 2001, against Ott & Lee Funeral Home (Ott & Lee) and Batesville Casket Company, Inc., (Batesville) (collectively, the "Defendants") alleging claims of breach of implied warranty of merchantability, breach of implied warranty of fitness, strict products liability, negligence, tortious interference with a dead body, intentional infliction of emotional distress, fraud, negligent misrepresentation, and punitive damages. Both Ott & Lee and Batesville timely responded to the complaint by filing general and specific denials and asserting affirmative defenses.

¶ 2. After a period of discovery, including written requests for discovery and depositions, had occurred, both Ott & Lee and Batesville filed motions for summary judgment in November 2002, asserting that they were entitled to judgment as a matter of law based on the lack of evidence supporting the Plaintiffs' claims. The Plaintiffs filed a joint response to the Defendants' motions for summary judgment.

¶ 3. On October 4, 2004, the Plaintiffs filed their first amended complaint. Ott & Lee answered the amended complaint on October 20, 2004, and Batesville answered on October 26, 2004. Again, the Defendants responded to the complaint with general and specific denials and asserted affirmative defenses. Subsequently, the Plaintiffs on October 27, 2004, filed their supplemental response to the Defendants' motions for summary judgment.

¶ 4. On December 28, 2004, the trial court found no genuine issues of material fact existed and issued two separate orders granting each of the Defendants' motions for summary judgment as a matter of law in separate opinions. The Plaintiffs filed a motion for reconsideration; both Defendants responded to the motion for reconsideration. The trial court denied the motion for reconsideration on February 14, 2005.

¶ 5. The Plaintiffs raised confusion with the trial court regarding whether the two orders were final judgments because the orders failed to state "final judgment." The Plaintiffs continued to submit additional evidence and requested additional findings. Accordingly, the trial court designated the two orders granting summary judgment as "final judgments," and the trial court granted the Plaintiffs an extension of time in which to file their notice of appeal. The Plaintiffs now appeal to this Court.


¶ 6. On March 7, 1999, Nancy Moss Minton, the Plaintiffs' mother, died.1 The Plaintiffs engaged Ott & Lee in Morton, Mississippi, as the funeral home to handle the burial services. From the models on Ott & Lee's showroom floor, they selected a Pembroke cherry wood casket manufactured by Batesville. According to the Plaintiffs, the cherry wood casket "looked like" their mother and "suited her" because all the furniture in her home was cherry wood. Based on all the Plaintiffs' depositions in the record, the choice of a cherry casket was made for purely aesthetic reasons because it looked like their mother and their mother was very fond of that type of wood. The Plaintiffs contend that they were told by Ott & Lee that the casket was "top of the line."

¶ 7. At the time the wooden casket was selected, the employees of Ott & Lee informed the Plaintiffs that a wooden casket could not be sealed like a metal casket. The Plaintiffs testified in their depositions that Ott & Lee's employee, Ray Pardue, informed them that the wooden casket would not seal. The Plaintiffs admit Ott & Lee suggested that a concrete vault be used with a wooden casket, and they elected to use a concrete vault. According to the Plaintiffs, Ott & Lee told them the vault would keep the pressure of the dirt off the casket and prevent water from reaching the casket. Ott & Lee made no misrepresentations to the Plaintiffs about the ability of a wooden casket to preserve the remains, and the Plaintiffs admit that they did not inquire about its ability to preserve the remains. In fact, Susan Moss, one of the Plaintiffs, testified in her deposition that she was aware that a wooden casket could not seal, but she still chose a wooden casket for her mother's remains. According to the Defendants, the Plaintiffs did not request any other information regarding wooden caskets, request any particular characteristics in a casket, or discuss what they wanted from a casket regarding protection of the remains. Kenny Moss testified that he did not recall anyone asking Pardue for any recommendation as to which casket they should choose. Kenny further testified that he did not recall Pardue ever stating which casket was better or which one they should buy.

¶ 8. The wooden casket had a written warranty from Batesville that expressly disclaimed any implied warranties and limited liability as to replacement of the casket. Batesville's warranty for a hardwood casket, that it provided to the funeral director and the funeral director's client, only warranted the hardwood casket until the time of interment.

¶ 9. The full pre-interment warranty certificate for a Batesville hardwood casket stated:

That this Batesville Hardwood Casket is manufactured from solid hardwoods, and is free from defects in materials and workmanship. If, at any time prior to the interment of this casket in an initial place of interment, it is found to be defective in materials or workmanship, Batesville will, within ten days after notice to it, replace this casket with one of similar quality provided it was properly handled in the funeral director's possession and an opportunity is afforded for examination of the casket by Batesville representatives and/or impartial experts designated by them.

Batesville employees or representatives are not authorized to change this warranty in any way or grant any other warranty. Batesville shall not be responsible for any consequential damages arising out of any breach of this express warranty or any implied warranties. Some states do not allow the exclusion of limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. The purchaser's remedy shall be strictly limited to replacement of the casket as stated in the preceding paragraph.

¶ 10. The Plaintiffs' mother was buried on March 9, 1999. Later believing that a medical malpractice claim may have existed against the decedent's medical care providers, the Plaintiffs had the decedent's body exhumed for an autopsy. Accordingly, approximately two and one-half years after the burial, the Plaintiffs had their mother's body exhumed on August 10, 2001, to investigate a possible medical malpractice claim.2 However, the autopsy revealed that the Plaintiffs' mother died of natural causes, not medical malpractice. When the casket was exhumed, the Plaintiffs observed visible cracks and separation in the casket. As the casket was removed, it began to dismantle. The body remained in the casket, and none of the Plaintiffs saw the body. Only Susan Moss and Kenny Moss were present at the exhumation.

¶ 11. The record does not reveal any evidence showing any damage to the body linked to the separation and cracks in the casket at issue, and the Plaintiffs admitted that they did not have any evidence that the body was not properly preserved. Furthermore, without admitting any liability or obligation and clearly stating so in a letter to the Plaintiffs' counsel, Batesville furnished a metal casket free of charge to the Plaintiffs for the reburial.

¶ 12. The Plaintiffs did not present the trial court with any expert with any specialized knowledge related to caskets. However, Dr. Ramsay Smith's report and evaluation dated May 31, 2004, were supplied at the motion for summary judgment and considered by the trial court in its ruling. Dr. Smith, a forest products consultant with the Louisiana Forest Products Development Center at Louisiana State University, purported to be an expert in wood rot, decay, and degradation. Dr. Smith did not find any problem with the physical and/or mechanical properties of the wood. He stated that decay is a natural process in wood, but that wood is a proper material to use to manufacture a casket. He determined that the casket had separated at the glued joints based on poor adhesive bonds where the cherry wood boards had been glued together to form the casket.

¶ 13. However, Dr. Smith testified in his deposition that he did not hold himself out as an expert in the field of adhesives. Dr. Smith's report and deposition were both considered by the trial court in ruling on the motion for summary judgment. Based on Dr. Smith's testimony, the trial court gave no weight to Dr. Smith's findings as to the adhesive or glue bonds. The trial court further stated that "the heart of Dr. Smith's report laid the fault at the glue-line failures, a field which was not in the area of his expertise."

¶ 14. Dr. Moon Kim, a professor at Mississippi State University in the Department of Forest Products and Forest Products Laboratory, purported to be an expert in wood and glue. Dr. Kim's affidavit provided that the glue used in the casket was improper, and as a result, it did not provide an effective bond for the joints. However, Dr. Kim's affidavit was not offered to the trial court for consideration in rendering its decision on the motion for summary judgment. Dr. Kim's affidavit...

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