Prevent nightmarish claims in cemeteries and funeral homes

Although the process of interring a body and burying a person is generally straightforward and well documented, it is still a human process and as such accidents can occur. People buried in the wrong grave or sent to the wrong cemetery are not uncommon, but the potential mistakes don’t stop there. (Credit: NKM999/Shutterstock.com)

A burial 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 led cemetery workers to remove the casket from the grave in front of family and loved ones. The funeral home had placed the body of another person with the same last name in the deceased’s casket along with the loved one’s clothing and belongings. What should have been a beautiful traditional ceremony in honor of their beloved turned into a nightmare for his family.

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

Risks and exposures

Although the process of interring a body and burying a person is generally straightforward and well documented, it is still a human process and as such accidents can occur. People buried in the wrong grave or sent to the wrong cemetery are not uncommon, but the potential mistakes don’t stop there. The burial site may not be ready on time or poorly prepared. The casket could be damaged during transport, or a family could receive the wrong ashes. A pallbearer could trip and fall while carrying the casket or the remains could be improperly stored or completely misplaced. These risks can have devastating consequences for a cemetery, crematorium or funeral home.

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

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

  • Negligence Claims: A claim for negligence can be brought when the usual care of duty has been insufficient. The claim against the Maine Crematorium is an example of a negligence claim. The crematorium had a duty to properly care for the bodies until they were cremated or buried. Failure to refrigerate bodies and leave them unattended is unacceptable and an inherent obligation of the crematorium.
  • Misrepresentation allegations: A cemetery, crematorium, or funeral home is liable for misrepresentation if it is found to have deliberately misrepresented or omitted key information when selling services or presenting a contract. Such an incident might look like a cemetery claiming to be “waterfront property” but being several miles from the water or neglecting to notify family members of other burial sites near the burial site.
  • Claims for breach of contract: If a contract has explicit terms and the organization does not deliver, they are in breach of contract. It’s for things as simple as having a specific plot purchased, but the family finding it filled when it’s time to bury their loved one.
  • Mental anguish claims: These are mainly professional liability. Unlike many other professions, this industry is inherently susceptible to mental anguish. These claims arise from delicate situations that cause the claimant a relatively high degree of mental pain and suffering. Many of the situations discussed here can be traced to occupational claims related to mental anguish.
  • Claims for slips, trips and falls: These are the most common complaints for most industries. This is especially important in cemeteries where there are miles of internal and external sidewalks and walkways to maintain. As part of the operations, holes are dug and filled in, where visitors walk around. A person who stumbles can land on a gravestone or worse. If even a porter stumbles due to uneven sidewalks, holes, or even his own two feet, the cemetery can be held responsible.
  • Right of burial: The right of burial protects the next of kin’s right to find peace and comfort in the act of burial. If a cemetery does not have the grave ready in time or buries a body in the wrong grave, it infringes the family’s right to burial and is responsible for it.

Risk mitigation

Each of these claim circumstances can expose an institution to significant reputational, legal and financial risk. Fortunately, there are measures that insurers can advise their funeral home, crematorium and cemetery customers to ensure that such incidents are less likely to occur.

One of the most direct preventative steps that can be taken is to simply stay current with 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 required, in addition to established laws, when moving, embalming, cremating, or interring the deceased. If mandatory laws or regulations are changed and an institution is unaware, the cemetery, funeral home or crematorium could face heavy fines and even more serious consequences, such as having their permit. 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 these best practices and processes into practice is another important tactic that crematoriums, cemeteries, and funeral homes should use to protect against risk. The best place to start is with training. Well-trained employees are aware of costly mistakes and try to avoid them. And while the training itself is a good start, it’s just as important to review this training regularly to answer any questions or changes to the process to protect against accidents. When reviewing your training program, three key issues should remain front and center for employees: awareness, checklists, and maintenance.

  • Sensitization: All personnel should be on the lookout for uneven or worn sidewalks, driveways, stairwells, divots or holes in the terrain, broken or dead trees or branches, and other hazards. Once identified, they should report such issues immediately so that the public and staff are informed and aware of the issue. Then, a plan must be put in place to remedy the problem.
  • Form a checklist: Create a checklist of what to do when preparing and interring the body to ensure unexpected incidents are less likely to occur. Each checklist should specify all family requests, in addition to standard procedures such as body chilling, embalming, and documentation. It is also important to double and triple check that all information is correct early in the burial process. Although this may seem tedious, it will ensure that the deceased is prepared according to the wishes of the family and is in the right place.
  • Maintenance: Regular grounds maintenance can prevent slip, trip and fall incidents before they happen. Establishing a schedule for lawn mowing, trash pick-up, debris removal, and other necessary maintenance can keep families, as well as workers, safe. Cemetery and funeral home directors may also conduct tours of the space prior to a burial, wake, interment, or other ceremonies to ensure the space is clear and navigable.

Finally, the final element to complete your risk mitigation plan is the transfer of risk through a viable insurance policy that meets your business needs. By using your insurance options through your broker, you can focus on your business operations, what you do best.

Domenic Antinucci III, CPCU, CPL, of the Brownyard group.  (Courtesy picture) Domenic Antinucci III, CPCU, CPL, of the Brownyard group. (Courtesy picture)

Accidents happen. Fortunately, if crematoriums, cemeteries and funeral homes take the proper risk mitigation measures, they can avoid mistakes and potential harm to both their business and the families they work with. When such accidents are unavoidable, the transfer of risk is essential, in order to have the appropriate insurance cover to provide protection. Insurers and brokers can help customers find the right coverage to meet their needs. Accidents happen, but with the right insurance program in place, you can rest easier.

Domenic Antinucci, CPCU is a Program Manager at Brownyard Group, which provides insurance coverage for cemeteries and crematoria through Memorialpro insurance program and has been part of ICCFA for over four years. He can be contacted at [email protected] or 800-645-5820.

The opinions expressed here are those of the author.

Related:

Comments are closed.