Preventing nightmare claims at cemeteries & funeral homes

A funeral was planned in the Korean tradition of an open casket in New Jersey, followed by a burial in upstate New York. Instead, a mix-up at the funeral home had cemetery workers removing the casket from the grave in front of the family and loved ones. The funeral home had placed the body of another individual with the same last name in the deceased casket with the loved one’s clothes and personal items on. What should have been a beautiful traditional ceremony in honor of their beloved turned into a nightmare for her family.

This $50 million lawsuit against a New Jersey funeral home is not an isolated event. In fact, according to news reports, families in Houston; Charlotte; Waco, Tex.; Columbus, Ohio; Pontiac, Mich.; Ahoskie, N.C.; and Fresno, Calif., have experienced similar errors in the past two years.

Risks and exposures

While the process of interring a body and laying someone to rest is typically straightforward and well documented, it is still a human process and as such, accidents can happen. Individuals buried in the wrong grave or sent to the wrong cemetery are not uncommon, however potential mistakes don’t end there. The burial site might not be ready in time or might be prepared improperly. The casket could be damaged in transit, or a family could receive the wrong cremains. A pallbearer could trip and fall when carrying the casket or the remains could be stored improperly or misplaced entirely. These risks can have devastating implications for a cemetery, crematorium or funeral home.

When something goes wrong during the interment or burial process, it can leave a cemetery or crematorium open to financial, reputational and legal risk. This was exactly the case for a crematory in Maine where bodies were left unattended without refrigeration for several days, causing the families emotional distress once discovered. In this case, the crematorium was ordered to pay the plaintiff $5.5 million, was shut down and had its funeral licenses suspended until further notice.

While these incidents highlight a worst-case scenario, there are a number of other risks funeral homes, cemeteries and crematoriums face. These risks include: 

• Negligence claims: A negligence claim can be brought when the standard care of duty has fallen short. The claim against the Maine crematory is an example of a negligence claim. The crematorium had a duty to properly care for the bodies until such time they were to be cremated or interred. The negligence of not refrigerating the bodies and leaving them unattended is unacceptable and an inherent obligation of the crematory.

• Misrepresentation claims: A cemetery, crematorium or funeral home is liable for misrepresentation if it is proven they purposely distort or omit key information when selling services or presenting a contract. Such an incident might look like a cemetery claiming to be a “waterfront property,” but being several miles from water or neglecting to inform family members of other burial plots near the grave site. 

• Breach of contract claims: If a contract has explicit terms and the organization does not deliver, they are in breach of contract. This is for matters as simple as having a specific plot purchased, but the family finding it filled when it is time to bury their loved one. 

• Mental anguish claims: These fall under professional liability primarily. Unlike many other professions, this industry is inherently sensitive to mental anguish. These claims stem from sensitive situations that cause the plaintiff a relatively high degree of mental pain and suffering. Many situations discussed here can attribute to professional claims related to mental anguish. 

• Slip, trip and fall claims: These are the most common claims for most industries. It is especially important at cemeteries where there are miles of internal and external sidewalks and walkways to maintain. As part of operations holes are dug and refilled, where visitors walk. A person tripping may land on a headstone or worse. If even a pallbearer trips due to uneven sidewalks, holes, or even their own two feet, the cemetery may be found liable. 

• Right of sepulcher: The right of sepulcher protects the next of kin’s right to find peace and comfort in the act of burying. If a cemetery does not have the grave ready in time or buries a body in the wrong grave, they are infringing on the family’s right of sepulcher and are liable.

Risk mitigation

Each of these claims circumstances can leave an institution open to great reputational, legal and financial risk. Fortunately, there are steps insurers can advise their funeral home, crematorium and cemetery clients to take to ensure such incidents are less likely to take place.

One of the most direct, preventative steps that can be taking is simply staying up to date on laws, regulations, processes and industry best practices. This industry is highly regulated. Each state has a variety of rules, regulations, processes, checklists that are suggested, if not mandatory, in addition to established laws, when moving, embalming, cremating or burying the deceased. If any mandatory laws or regulations are changed and an institution is not aware, the cemetery, funeral home or crematorium could face hefty fines and even more serious implications such as having their license stripped. One of the best ways to stay informed is to join state and national associations such as The International Cemetery, Cremation and Funeral Association (ICCFA) or The Cemetery and Mortuary Association of California (CMAC).

Putting such best practices and processes into practice is another important tactic for crematoriums, cemeteries and funeral homes to employ to protect themselves against risk. The best place to start is with training. Well-trained employees are aware of and try to avoid costly errors. And while training itself is a good start, regularly revisiting that training to address any questions or changes to the process is just as important to protect against accidents. When considering your training program, three vital issues must remain front and center for employees: awareness, checklists and maintenance. 

• Awareness: All staff should be on the lookout for uneven or worn-out sidewalks, walkways, stairwells, divots or holes on the grounds, broken or dead trees or branches and other hazards. Once identified they should flag these issues immediately so that the public and staff know and are aware of the issue. Then a plan should be in place to remediate the issue.

• Form a checklist: Create a checklist of what to do when preparing and interring the body to ensure unexpected incidents are less likely to happen. Each checklist should specify any requests from the family, in addition to standard procedures such as refrigeration of the body, embalmment, and documentation. It is also important to double and triple check that all information is correct when beginning the interment process. While this may seem tedious, it will ensure the deceased is prepared as per the family’s desires and is in the right place.

• Maintenance: Regular grounds maintenance can stop slip, trip and fall incidents before they happen. Setting up a schedule for lawn mowing, trash pick-up, debris removal and other necessary maintenance can ensure families, as well as workers, remain safe. Cemetery and funeral home directors can also perform walkthroughs of the space before a funeral, wake, burial or other ceremonies to ensure the space is clear and navigable.

Finally, the last piece to complete your Risk Mitigation plan is Risk Transfer through a viable insurance policy that fits your business needs. By utilizing your insurance options through your broker, you can focus on your business operations which is what you do best.

Accidents happen. Fortunately, if crematoriums, cemeteries and funeral homes take proper steps in regard to risk mitigation they may avoid errors and potential harm to both their business as well as the families with whom they work. When such accidents are unavoidable, risk transfer is critical, to have the proper insurance coverage to ensure protection. Carriers and brokers can aid clients in finding the right coverage to fit their needs. Accidents happen, but with the proper insurance program in place you may rest easier.

Domenic Antinucci, CPCU is a program manager at the Brownyard Group, which offers cemetery and crematory insurance coverage through the Memorialpro insurance program and has been a part of the ICCFA for more than four years. He can be contacted at dantinucci@brownyard.com or 800-645-5820.

Opinions expressed here are the author’s own.

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