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COA rules botched burial does not entitle relatives to award

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The Indiana Court of Appeals has ruled that relatives of a woman whose burial went awry are not entitled to damages.

On August 16, 2007, Doris Johnson’s family had left her grave site before interment. When the casket was determined to be too large to fit in the burial vault, funeral director Donald Fredrick, along with Donald Gilmore, Robert Evans, and Michael Carnahan, attempted to force the vault closed. It was interred without being completely sealed.

On August 27, Johnson’s family — the Yorks — received an anonymous call about the problems with the burial. Family members called the Duesterberg-Fredrick funeral home, requesting that the casket and vault be exhumed.

The Yorks were not responsible for the cost of the August 30 exhumation, replacement casket, and replacement vault.

Tina Baum, Johnson’s granddaughter, and two other relatives, Summer Noland and Shawn York, were present at exhumation. All three noticed some damage to either the vault or casket, but no damage to the remains. Photographs and video taken at the exhumation were played during a family reunion and viewed by the Yorks and other relatives. For Steven and Sharon York, this was their first opportunity to view the vault, casket, and remains. They did not notice any damage to the remains.

The Yorks all contend to have suffered emotional distress as a result of this incident, but none sought any medical or other professional treatment.

On July, 17, 2008, the Yorks filed an amended complaint against Fredrick; the funeral home; Edwardsport Town Cemetery Association; Sexton Wilbert Corp., twhich delivered the vault; and those who put Johnson’s remains in the vault, alleging negligence, gross negligence, negligent infliction of emotional distress, intentional infliction of emotional distress. They also alleged Fredrick and the funeral home committed a breach of fiduciary duty.

On December 29, 2008, the trial court issued an order granting the partial motion to dismiss of all the defendants as to the claims of negligent infliction of emotional distress pursuant to Indiana Trial Rule 12(B)(6). A motion for summary judgment for the remaining allegations was filed and joined by all of the Defendants.

The Yorks filed a response to this motion, and Evans and Sexton Wilbert filed a reply brief to this response and a supplement to the facts. The Yorks filed a motion to strike both filings by Evans and Sexton Wilbert, which was denied by the trial court. On July 23, 2010, the trial court issued an order granting summary judgment in favor of the defendants on all of the remaining allegations.

On appeal in Sharon S. York, et al. v. Donald Fredrick, et al., No. 42A01-1008-PL-420, the Yorks cited Indiana’s bystander rule in support of their claim for relief for negligent inflection of emotional distress. But the COA cited Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000), which states that a bystander must either witness or come upon a scene soon after the death or severe injury of a loved one caused by the defendant’s negligent conduct. The family, the COA stated, was not present at the time of the interment.

Again citing Groves, the COA said that the “scene” must be essentially as it was at the time of the incident, and the claimant must not have been informed of the incident before coming upon the scene. The family had been informed of the burial problems and had voluntarily attended the exhumation.

The appellate court also affirmed summary judgment in favor of the defendants on the remaining claims and held the Yorks wavied their claim regarding the denial of their motion to strike.
 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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