Florida's recognition of tort of intentional infliction of emotional distress caused by extreme and outrageous conduct in handling of cremation
By Juan C. Antúnez on February 20, 2007
Matsumoto v. American Burial and Cremation Services, Inc., — So.2d —-, 2006 WL 3733310, 32 Fla. L. Weekly D26 (Fla. 2 DCA Dec 20, 2006)
In light of the ongoing litigation involving conflicting claims for custody of Anna Nicole Smith's body (see here), the linked-to case seems especially timely (thanks to Alachua, FL attorney Jane E. Hendricks for pointing it out to me).
The linked-to case answers two questions that can be expected to come up from time to time in a probate practice. After the publicity the Anna Nicole Smith case is bringing to litigation involving control of a decedent's body, these questions may come up with more frequency.
Question 1: Can you sue someone for causing you emotional pain and suffering over the disposition of a family member's dead body? Answer: YES. Here's how the 2d DCA described this particular tort:
Ms. Matsumoto sued the appellees in June 2003, claiming that they tortiously interfered with the body of her deceased father, Lenzo Chavis. Her pleading and her trial theme more accurately reflect a tort claim for outrageous conduct causing severe emotional distress. See, e.g., Smith v. Telophase Nat'l Cremation Soc'y, Inc., 471 So.2d 163 (Fla. 2d DCA 1985) (acknowledging Florida's recognition of tort of intentional infliction of emotional distress caused by extreme and outrageous conduct in handling of cremation); Williams v. City of Minneola, 575 So.2d 683, 690-91 (Fla. 5th DCA 1991) (holding that cause of action lies in tort for infliction of emotional distress by outrageous conduct involving dead body); Baker v. Fla. Nat'l Bank, 559 So.2d 284, 287 (Fla. 4th DCA 1990) (recognizing that claim for intentional infliction of emotional distress and "tort of outrageous conduct" are the same claim).
Question 2: Does a funeral home have an affirmative duty to find the next of kin with highest priority under Florida law when seeking authority to cremate a decedent's body? Answer: NO. According to the 2d DCA Florida Statutes section 470.002(18) [now repealed] specifies the priority of persons who may direct the disposition of the decedent's body. Under this statute, a decedent's child has priority over a brother or sister. In the linked-to case the decedent's estranged daughter claimed the funeral home should have tried to locate her prior to following the directions of the decedent's brother. The 2d DCA rejected her claim as follows:
Ms. Matsumoto . . . urges us to graft upon the statute a requirement that the funeral home undertake a diligent search for the closest next of kin if their whereabouts are unknown by those lower in priority under the statute. She suggests that the funeral home must make a good faith effort, similar to that required for constructive service of process, to locate the unavailable next of kin. See § 49.041(1), Fla. Stat. (2002). The statute does not impose a due diligence requirement on funeral homes. Nor does it require funeral homes to provide others with higher priority notice of a family member's death. We decline to impose such obligations on the funeral home.
Is there a workaround to Florida's inequitable treatment of middle-aged adults contesting paternity for the first time in probate?