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Peace of mind restored: Cemetery trust case results in multi-million dollar settlement

Michael W. Hoskins
January 1, 2008
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It was bad enough that Cecilia Means had to watch as her grandmother's casket was pulled from a waterlogged gravesite where it had been buried for 17 years.

On that day in March 2007, the southeast Indiana woman stood covering her mouth and sobbing as workers pulled the stainless steel casket from several feet of muddy brown water and a steady stream of water leaked from where the lid joined the sides. That day seemed liked a nightmare at the 40-acre cemetery where her grandparents, two uncles, and cousins are buried.

But that wasn't the extent of the problems at Grandview Memorial Gardens, which sits just outside the small town of Madison north of the Ohio River and Kentucky state line. It gets worse.

Not only did other families witness similar situations with their loved ones, but cemetery financial woes were mounting at the same time that plunged a local community into crisis-mode and brought an Indianapolis law firm into their lives.

Wanting to be near family at Grandview when the time came, Means and her husband had two decades earlier decided to prepare for the inevitable and buy burial plots, caskets, grave markers, and opening and closing services for themselves. It was supposed to provide peace of mind, but she later learned in 2006 that the trust fund where her money was supposed to be placed was gone. Her peace of mind vanished.

As many as 3,000 people faced similar concerns and were on the losing end of a $3-$4 million shortfall, and it took an 18-month legal battle to recapture what they'd all lost. Their ordeal was a nightmare, but it's evolved into a legal victory that could be seen as a framework for others ongoing throughout the state and country.

"This has been a local community crisis," said Indianapolis attorney Richard Shevitz with Cohen & Malad, who represented Means as the sole plaintiff in the class action cemetery trust case. "They wanted peace of mind and that's why they bought these contract services, but that peace of mind was shattered when they found out there wasn't any money and they might have to buy those goods again. We're pleased to be able to give them back what was taken away."

Means volunteered at the cemetery and developed a non-profit committee to oversee its upkeep and management amid the trouble. She contacted Shevitz and Cohan & Malad associate Vess Miller to help navigate the legal waters leading up to this lawsuit, which was filed a month after she witnessed her grandmother's grave being disturbed.

The April 2007 suit alleged that four banks serving as trustees and previous Grandview owners mishandled millions from the cemetery's trust fund. The fund was established in 1992 and should have had payments accruing since then. Under Indiana law, money paid for funeral expenses can only be disbursed upon death. But the fund had dwindled to next to nothing by the time this lawsuit came, and it's since been completely wiped out.
 No one knows what happened to the money, and that's the subject of an ongoing grand jury investigation by the Jefferson County Prosecutor's Office. The fund vanished through the years as cemetery ownership changed hands - from Grandview Memorial Gardens Inc. up until 1997, to Carriage Funeral Services of Indiana and Carriage Cemetery Services until January 2001, to Madison Funeral Service through 2005, and then to current owner Grandview Memorial Gardens LLC.

The suit accused cemetery owners of failing to properly deposit money collected for burials and funerals into the trust and also of illegally withdrawing funds. The suit also accused the banks of breaching their fiduciary duty by permitting the money to be disbursed and failing to maintain accounts detailing each individual's payments as required by law.

With the trust fund nearly depleted as the lawsuit began, Shevitz says there was a growing fear that plot owners would be forced to pay for their burial services a second time. Now, with the settlement, it appears that won't happen.

"This is a win-win situation and a good thing for this community," he said. "Everyone's been in such an uproar about this, thinking they'd have to pay twice. "(Carriage Funeral Services and the banks) have in our view very much done the right thing and are going to take care of a problem that otherwise would be difficult to take care of."

Miller said the defendants didn't just roll over for this settlement, that it took tens of thousands of dollars to pay for analyzing an estimated 40,000 discovery documents. This agreement isn't an admission of guilt on behalf of Carriage Funeral Services or any the banks, attorneys said. Cohen & Malad will hold an informational meeting in Madison Nov. 2 to discuss details with the plaintiffs, including how Marion Superior Judge Robyn Moberly is expected to give final approval to the settlement in January. In the meantime, attorneys say that the current cemetery owner who inherited the mess in 2005 will likely have to pay for any prepaid burial goods since the fund is gone.

Similar suits alleging administrative and financial mismanagement are being launched nationally against cemetery owners, and attorneys say this case will provide a roadmap for navigating that ongoing and future litigation.

Another case Shevitz and Miller are handling involves Forest Lawn Memorial Gardens in the Greenwood area. The cemetery owners are accused of transferring more than $20 million in cemetery trust funds and spending some of the money on personal expenses. A Marion County classaction suit has been combined with a civil one filed by Indiana Attorney General Steve Carter, and the case is pending in Johnson Circuit Court. A motion to dismiss hearing is set for mid-November and attorneys expect a ruling by the end of the year.

"We think this (Grandview) case is good framework for these types of cases, and it can provide some guidance," Miller said.

While Grandview plaintiffs achieved a victory, defendants still remain in that suit - Madison Funeral Services and Grandview Memorial Gardens have not resolved claims about ownership. An unresolved classaction suit dealing specifically with waterlogged gravesites also remains pending in the Southern District of Indiana, New Albany Division. That case filed in August 2007 is Leathermon v. Grandview Memorial Gardens, et al., 4:07-cv-137, and was removed to federal court from Jefferson Circuit Court because damages could be more than $5 million.

Despite what's left, Means is pleased the nightmare is mostly finished. More than a year after witnessing her grandmother's grave being dug up, she stands near the headstone and points to her plot nearby. Thoughts of the settlement make her smile in the sunlight, even though she wishes it never had gotten to this point.

"We were and are very angry about all of this, about what happened to everyone, to our families, to our plots and caskets, about all the money that's missing," she said. "But this is wonderful and we're very happy with the result." •  
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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

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  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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