No. 94-370

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

MARIA CONTRERAZ, LISA SCOTT,

CARMEL ROMERO, ISABEL GAYLOR,

JOHN CUELLAR, JOE CUELLAR,

JESSE CUELLAR, MARIAN ESTRADA,

and JOSEY GUTIERREZ,

Plaintiffs and Appellants,

v.

MICHELOTTI-SAWYERS and

NORDQUIST MORTUARY, INC.,

and DAHL FUNERAL CHAPELS,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

Filed:

For Appellants:

W. Scott Green; West Patten Bekkedahl & Green

Billings, Montana (argued)

For Respondents:,

Guy W. Rogers; Brown, Gerbase, Cebull, Fulton,

Harman & Ross, Billings, Montana (argued for

Michelotti-Sawyers)

Rodney T. Hartman; Herndon, Hartman, Sweeney &

Halverson, Billings, Montana (argued for Dahl

Funeral Chapels)

For Amicus Curiae:

Joe Seifert; Keller, Reynolds, Drake, Johnson

& Gillespie, Helena, Montana (argued for Montana

Funeral Directors Association)

Submitted: March 9, 1995

Decided: June 1, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

Maria Contreraz (Maria) and eight family members (Appellants)

appeal from an order of the Thirteenth Judicial District,

Yellowstone county, granting Respondents' motion for summary

judgment. The District Court concluded (1) that Appellants are not

entitled to emotional distress damages resulting from Respondents'

improper embalming of Appellants' mother's body; (2) that

Appellants are not entitled to emotional distress damages for

breach of contract; and (3) that Appellants are not entitled to

recover damages for breach of contract. We reverse in part and

affirm in part.

The Parties

FACTS

Basilia Cuellar (Cuellar) died on March 10, 1993. The

Appellants are Cuellar's children, Maria Contreraz, Lisa Scott,

Carmel Romero, Isabel Gaylor, John Cuellar, Joe Cuellar, and Jesse

Cuellar, and grandchildren Marian Estrada and Josey Gutierrez.

Appellants had pooled money for three years to pay for Cuellar's

funeral expenses. Maria acted as spokesperson for Appellants, and

on March 10, 1993, Maria contacted Michelotti-Sawyers and Nordquist

Mortuary, Inc. (Michelotti-Sawyers). Michelotti-Sawyers picked up

and embalmed Cuellar's body. Maria alleges a Michelotti-Sawyers

employee offended her. On March 11, 1993, Maria called MichelottiSawyers and allegedly was treated rudely by another employee while

discussing funeral arrangements. On March 15, 1993, Michelotti2
Sawyers sent Maria a letter apologizing for any perceived rudeness.

Michelotti-Sawyers denies it treated Maria with disrespect.

Approximately thirty minutes after Maria's conversation with

Michelotti-Sawyers, Maria contacted Dahl Funeral Chapels (Dahl) to

have it pick up Cuellar's body. No contract was signed between

Maria and Michelotti-Sawyers. Maria was the only Appellant to sign

a contract with Dahl for Cuellar's funeral.

Michelotti-Sawyers was aware that many of Cuellar's children

would contribute to Cuellar's funeral expenses. Dahl employee John

Dahl was also aware that Maria signed the contract with Dahl on

behalf of other family members.

On March 11, 1993, during a family visitation with Cuellar's

body, Carmel, John, and Joe observed that clothes on the right side

of the body had a red/rust stain, approximately 2-4 inches wide by

18 inches long. Family members alerted Dahl's evening attendant

who contacted Dahl's mortician. The mortician arrived within

approximately two minutes and informed family members that he would

remedy the problem when family members left. Family members

remained with the open casket for approximately two hours. The

stain came from a surgical incision which was leaking embalming

fluid. Although the incision was covered by a four-inch square

bandage, it had gone unnoticed by both Michelotti-Sawyers and Dahl.

Dahl employees repaired the leak site, placed clean clothes on the

body, and cleaned the coffin.

The remainder of the funeral arrangements proceeded as planned

and Appellants were satisfied with the funeral. The family,

3
through Maria, paid Dahl's bill in full, including the costs

Michelotti-Sawyers charged for embalming. During a telephone

conversation between Michelotti-Sawyers employee Mike Nordquist and

and John Dahl, Nordquist conveyed that Michelotti-Sawyers would not

charge for the embalming, and Dahl refunded to Maria the amount

paid for embalming.

Appellants filed suit against Michelotti-Sawyers and Dahl

alleging negligent preparation of Cuellar's body, emotional

distress damages, and breach of contract. Appellants filed a

motion for partial summary judgment and Respondents filed a motion

for summary judgment. Appellants, Michelotti-Sawyers, and Dahl

submitted briefs and a hearing was conducted. In an order dated

June 7, 1994, the District Court denied Appellants' motion and

granted Respondents' motion. This appeal followed.

ISSUES

1 . May damages for emotional distress be recovered for negligent

conduct?

2. May emotional distress damages be recovered in a breach of

contract action?

3. May Appellants recover contract damages?

STANDARD OF REVIEW

When reviewing an order granting summary judgment, this Court

applies the same standard of review as that utilized by the trial

court. McCracken v. City of Chinook (19901, 242 Mont. 21, 24, 788

P.2d 892, 894. Summary judgment is properly granted when no

genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law. McCracken, 788 P.2d at

4
894.

I

May damages for emotional distress be recovered for negligent

conduct?

Neqliqent Conduct Causinq Emotional Distress

The District Court applied what it concluded to be the

majority view, that to recover damages for emotional distress,

funeral home conduct in handling a dead body must be willful,

wanton, or malicious. The District Court noted that it is

undisputed that the funeral homes did not act with malicious or

wanton conduct. Michelotti-Sawyers argues that in order to recover

for negligent infliction of emotional distress, the distress must

be accompanied by physical injury. We disagree.

We recently recognized the independent tort of negligent

infliction of emotional distress in Sacco v. High Country

Independent Press, Inc. (Mont. 1995), (94-304, decided May 19,

1995). In sacco, we held that "[a] cause of action for negligent

infliction of emotional distress will arise under circumstances

where serious or severe emotional distress to the plaintiff was the

reasonably foreseeable consequence of the defendant's negligent act

or omission." Sacco, Slip Op. at 30. In Sacco we adopted the

definition of severe or serious emotional distress from the

Restatement (Second) of Torts, § 46, comment j at 77-78. Sacco,

Slip Op. at 32-33. That opinion further detailed the Montana case

history regarding our establishment of the tort of negligent

infliction of emotional distress.

The question then becomes how to apply the rule established in

5
Sacco to claims based on negligent handling of dead bodies. Other

jurisdictions have considered this issue. In Washington, the

Supreme Court rejected the physical injury requirement for mental

distress injuries, in favor of measuring a defendant's liability

by:

strictures imposed by negligence theory, i.e.,

foreseeable risk, threatened danger, and unreasonable

conduct measured in light of the danger. [Citation

omitted.] Mental suffering, to be compensable, however,

must at least be manifested by objective symptoms.

[Citation omitted.]

Corrigal v. Ball & Dodd Funeral Home, Inc. (Wash. 1978), 577 P.Zd

580, 582. Michigan has recognized a particular interest in

"knowing that the deceased has been given a comfortable and

dignified resting place." Vogelaar v. United States (E.D. Mich.

1987), 665 F.Supp. 1295, 1306. We reject the conclusion adopted in

some jurisdictions that misconduct by a funeral home warrants

carving an exception to the "zone of danger" requirement (recovery

for emotional distress resulting from viewing the serious injury or

death of an immediate family member if the claimant was within the

zone of danger). Kimelman v. City of Colorado Springs (Cola. App.

1988), 775 P.2d 51, 52.

In Versland v. Caron Transport (19&33), 206 Mont. 313, 671 P.2d

583, we recognized the right to collect damages for negligent

infliction of emotional distress when a plaintiff suffered direct

emotional distress from witnessing the death or serious injury of

a spouse even though not within the zone of danger. Similarly, in

this case we recognize the right to damages for negligent

infliction of emotional distress resulting from the mishandling of

6
a corpse. Our holding here does not create a new cause of action.

Rather, we are applying our decision in Sacco to include negligent

infliction of emotional distress in situations where the emotional

distress resulted from negligent treatment of a dead body.

Negligent infliction of emotional distress claims focus on

impacts to the living which result from mistreatment of the

decedent's body. First, where the body is harmed and the

decedent's survivors are aware, they may be impacted (emotional or

physical impact) by the indignity and/or mistreatment. See, e.g.,

State v. Powell (Fla. 1986), 497 So.2d 1188 (wrongful removal of

corneas); Whitehair v. Highland Memory Gardens, Inc. (W.Va. 1985),

327 S.E.2d 438 (negligent disinterment). Secondly, when the body

is harmed, the survivor's plans for disposition of the body may be

altered or made impossible. See, e.g., Courtney v. Saint Joseph

Hospital (Ill. App. 1 Dist. 1986), 500 N.E.2d 703 (refrigerator

malfunction leaves body unfit for open casket wake and funeral);

Thompson v. Duncan Bros. Funeral Homes, Inc. (N.Y. Co. 19821, 455

N.Y.S.2d 324 (negligent embalming leaves body decomposing, leaking

fluid, and odoriferous).

Historically, courts have required that physical injury

accompany mental disturbance in order to recover under negligence

causes of action. Prosser and Keeton On the Law of Torts (W. Page

Keeton et al., (5th Ed. 1984) S, 54, page 361) (Presser). Prosser

concludes, however, that cases involving negligent mishandling of

a corpse are special and that many dead body cases, including

negligent embalming, are likely to involve "genuine and serious

7
mental distress, arising from the special circumstances, which

serves as a guarantee that the claim is not spurious." Prosser, §

54, page 362. The American Jurisprudence (2d) (Am.Jur.) provides

that:

Courts have, to a great extent, based civil liability for

wrongful acts with regard to a dead body on the

interference with the right of burial. Thus, the courts

have generally recognized that interference with the

right of a person to bury the body of his spouse or kin

is an actionable wrong . . . .

22A Am.Jur.2d Dead Bodies 5 35 (1965). The decisions cited by the

Am.Jur. involve physical manifestations or harm to the decedent's

body that directly affect the availability of an open casket

viewing or funeral. These include mud and water damage to the body

(Lamm v. Shingleton (N.C. 1949), 55 S.E.2d 810) and lack of

refrigeration causing body decay (Courtney v. Saint Joseph Hospital

(Ill. 1986), 500 N.E.2d 703). Many dead body cases fall into

categories, such as improper delivery and transport of bodies

(including loss); mutilation, dissection, and removal of body

parts; unauthorized autopsies; wrongful interment and wrongful

disinterment (and reinterment) See generally 22A Am.Jur.2d Dead

Bodies §§ 37-39.

Based on our holding in Sacco and the foregoing discussion, we

hold that one who negligently removes, withholds, mutilates,

embalms, provides funeral, burial, or crematory services, or

operates upon the body of a dead person or prevents its proper

interment or cremation is subject to liability to the deceased

person's close relatives for resulting emotional distress. This

negligent infliction of emotional distress shall be appraised based

8
on the test established in Sacco and adopted above. See Sacco,

Slip Op. at 30-34.

Standinq to Sue

In the instant case, the District Court concluded that "[a]

corpse is considered quasi-property and can not be owned by a

family member." 22 Am.Jur.2d Dead Bodies §§ 2 and 3. This quasiproperty delineation has been used in other jurisdictions to

establish standing to assert the cause of action for negligent

mishandling of a corpse. We reject the quasi-property approach and

general rule that standing is limited to the person who had the

legal right to the disposition of the body. In Carney v. Knollwood

Cemetery Assn. (Ohio App. 1986), 514 N.E.2d 430, 434-35, the Ohio

court reasoned that plaintiffs in mistreated body cases do not seek

to vindicate any "quasi property right" but rather sue because of

mental anguish caused by "the realization that disrespect and

indignities have been heaped upon the body of one who was close to

[them] in life." The Wisconsin Supreme Court has held that:

The basis for recovery of damages is found not in a

property right in a dead body but in the personal right

of the family of the deceased to bury the body. The

mutilating or disturbing of the corpse is held to be an

interference with this right and an actionable wrong.

The law is not primarily concerned with the extent

of physical injury to the bodily remains but with whether

there were any improper actions and whether such actions

caused emotional or physical suffering to the living kin.

The tort rarely involves pecuniary injury; the generally

recognized basis of damages is mental suffering.

Scarpaci v. Milwaukee County (Wis. 1980), 292 N.W.2d 816, 820-21.

The Idaho Supreme Court has held that, after cremated remains

were discovered not to be those of the decedent, the spouse was

9
able to recover but the son could not recover because he was not

the surviving spouse or next surviving kin. Brown v. Matthews

Mortuary, Inc. (Idaho 19901, 801 P.2d 37, 45. In contrast to the

Idaho court, the California Supreme Court concluded that mortuary

services are performed for the benefit of family members other than

the contracting party or person responsible for disposition of the

decedent's body. Christensen v. Superior Court (Cal. 1991), 820

P.2d 181, 191. The mortuary in Christensen "assumed a duty to the

close relatives of the decedents for whose benefit they were to

provide funeral and/or related services. They thereby created a

special relationship obligating them to perform those services in

the dignified and respectful manner the bereaved expect of [a

mortuary1 .'I Christensen, 820 P.2d at 193.

The court in Christensen stated:

The determination whether in a specific case the

defendant will be held liable to a third person not in

privity is a matter of policy and involves the balancing

of various factors, among which are the extent to which

the transaction was intended to affect the plaintiff, the

foreseeability of harm to him, the degree of certainty

that the plaintiff suffered injury, the closeness of the

connection between the defendant's conduct and the injury

suffered, the moral blame attached to the defendant's

conduct, and the policy of preventing future harm.

[Citation omitted.]

Christensen, 820 P.2d at 194. In the instant case, the children

and grandchildren of the decedent sued based on their emotional

distress. The grandchildren testified that they had been raised as

children by Cuellar. We hold that both the children and

grandchildren, as "close relatives," have standing to sue.

Michelotti-Sawyers further argues that only those parties who

10
actually saw the stain on the body should be allowed to recover.

This is an unreasonable and arbitrary limitation. Upholding such

a rule would create an immunity that could protect mortuaries from

their egregious conduct while barring recovery to those persons

possibly suffering the greatest harm. Christensen, 820 P.2d at

191. It is reasonable that a family member would become

emotionally distressed after learning of, but not seeing, a

debasing, humiliating, or disrespectful act committed to the

decedent's body. Concluding otherwise would act as a shield to

those mishandling or abusing the decedent's body as part of the

body's preparation for burial, cremation, etc. Regarding seeing

the misconduct to the body, the California Supreme Court stated:

When misconduct in the provision of funeral-related

services occurs in secret and its consequences are not

apparent to members of the decedent's family, permitting

recovery for the emotional distress suffered by all close

family members for whom mortuary services are performed

when the misconduct comes to light, regardless of which

family member held the statutory right or actually

contracted for the services, should be allowed.

Christensen, 820 P.2d at 193.' In the instant case, only three of

the Appellants actually saw the stain. We hold that a party need

not necessarily see the actual injury to the decedent's remains to

maintain standing to sue for the resulting emotional distress. We

further adopt the reasoning applied in Christensen that the

decedent's close family members, for whom the funeral services were

intended, have standing to sue.

Applying this standard to the Appellants' claims, we hold that

the District Court improperly granted Respondents' motion for

summary judgment.

11
II

May emotional distress damages be recovered in a breach of

contract action?

Appellants acknowledge that recovery for emotional distress

damages is not normally permitted in a breach of contract action

but argue that mortuary contracts are so unique as to warrant

recovery for contracting parties and the decedent's family. We

disagree.

Section 27-l-310, MCA, provides that:

Damages for emotional or mental distress prohibited in

contract actions -- exception. In an action for breach of

an obligation or duty arising from contract, recovery is

prohibited for emotional or mental distress, except in

those actions involving actual physical injury to the

plaintiff. Emotional or mental distress, as used in this

section, includes mental anguish or suffering, sorrow,

grief, fright, shame, embarrassment, humiliation, anger,

chagrin, disappointment, or worry.

This statutory language clearly prohibits the recovery Appellants

seek. We have held that in computing damages resulting from breach

of contract, "mental anguish is not, as a general rule, allowed .

. . the courts evidently believe that the mental suffering which

accompanies a breach of contract is too remote for compensation."

Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 49, 776 P.2d

488, 505; citing 22 Am.Jur.2d Damaqes 5 195 (1965). Citing 5 27-L

310, MCA, we further noted that "Montana follows the general rule

by prohibiting damages for emotional or mental distress in most

contract actions." Meech, 776 P.2d at 505. This issue is

controlled by statute: We hold that Appellants may not recover for

emotional distress in a pure contract claim.

12
III

May Appellants Recover Contract Damages?

Breach of Contract

Appellants argue that the failure to properly embalm and/or

the presenting of the body for viewing in a stained condition was

a breach of contract. In granting summary judgment against

Appellants' claim for contract damages, the District Court

concluded that Maria was refunded the embalming costs, that

Appellants were satisfied with the remainder of the funeral and

burial, and that Appellants failed to present identifiable claims

for economic damages arising from the incident. We hold that

whether or not there was a breach of contract is a question

properly decided by the finder of fact.

There is no dispute that Maria was the only family member to

have contact with Michelotti-Sawyers and the only Appellant to sign

a contract with Dahl. Respondents do not deny that Maria formed an

oral contract with Michelotti-Sawyers and a proper written contract

with Dahl. Further, Respondents refunded to Maria all embalming

costs. Appellants, however, argue that the leak and stain were a

detriment to the entire funeral and therefore the damages are not

limited to the costs of embalming.

Section 27-l-311, MCA, defines breach of contract as follows:

For the breach of an obligation arising from

contract, the measure of damages, except when otherwise

expressly provided by this code, is the amount which will

compensate the party aggrieved for all the detriment

which was proximately caused thereby or in the ordinary

course of things would be likely to result therefrom.

Damages which are not clearly ascertainable in both their

nature and origin cannot be recovered for a breach of

13
contract.

The issue becomes whether the leak and resultant stain sufficiently

"damaged" the funeral such that the contract was breached. It is

for the trier of fact to determine whether or not the leak and

stain resulted in an actual detriment compensable by damages, as

established by § 27-l-311, MCA.

Standinq for Breach of Contract Claims

Appellants argue that each Appellant established an individual

contract with Respondents and therefore, each is entitled to

recover damages for breach of contract. We disagree.

Appellants contend that Maria acted as an agent for the other

Appellants when she contracted with each Respondent. Montana

statute defines agency by the following relevant statutes:

28-10-101. Definitions of agent and agency. An

agent is one who represents another, called the

principal, in dealings with third persons. Such

representation is called agency.

. . . .

28-10-103. Actual versus ostensible agency. An

agency is either actual or ostensible. An agency is

actual when the agent is really employed by the

principal. An agency is ostensible when the principal

intentionally or by want of ordinary care causes a third

person to believe another to be his agent who is not

really employed by him.

. . .

28-10-201. How agency may be created. An agency

may be created and an authority may be conferred by a

precedent authorization or a subsequent ratification.

By the nature of their claims, Appellants assert that Maria

represented the other family members (principals) in dealing with

14
the Respondents (third persons). Appellants do not allege an

actual agency or a subsequent ratification.

"Where the undisputed evidence concerning the status of the

parties defendant to each other is reasonably susceptible of but a

single inference, the question of their legal relationship . . is

one purely of law." Estates of Milliron v. Francke (1990), 243

Mont. ZOO, 204, 793 P.2d 824, 827. Appellants failed to present

sufficient evidence to give rise to a genuine issue of material

fact regarding an agency relationship between Maria and the other

Appellants. See Estates of Milliron, 793 P.2d at 827. Appellants

cite evidence in the record that both Respondents were aware that

the Appellants had pooled their funds to pay for the funeral.

Respondents do not contest Appellants' assertion that each

Appellant contributed to the costs of funeral expenses. These

facts, however, are not sufficient to establish an agency

relationship. Because only Maria established a contract with

Respondents, we hold that only Maria may maintain a claim for

breach of contract.

THE LIABILITY OF DAHL FUNERAL CHAPELS

Dahl contends that since the allegedly negligent embalming was

conducted by Michelotti-Sawyers, Dahl cannot be held liable under

a negligence theory or breach of contract theory. Appellants,

however, contend that Dahl assumed a duty to properly prepare the

body for viewing during the funeral services and Dahl breached that

duty when it negligently failed to inspect the body and discover

the leaking surgical wound. We hold that both Dahl and Michelotti15
Sawyers assumed a duty to perform embalming and/or funeral services

in a dignified and respectful manner.

Reversed in part, affirmed in part, and remanded for further

proceedings consistent with this opinion.

’ *

A!! &h

Justice

We concur.

Justices

16
Justice Fred J. Weber specially concurs and dissents as follows:

The problem area for me is raised by the'following portion of

Issue I of the opinion:

Based on our holding in Sacco and the foregoing

discussion, we hold that one who negligently removes,

withholds, mutilates, embalms, provides funeral, burial,

or crematory services, or operates upon the body of a

dead person or prevents its proper interment or cremation

is subject to liability to the deceased person's close

relatives for resulting emotional distress.

In the beginning of the holding, the opinion states that it is

based on the foregoing discussion, which does refer to various

authorities in connection with negligent treatment of a decedent's

body. The first of such references speaks of impacts to the living

which result from mistreatment of decedent's body, such as situs of

harm to the body and the impact to the survivors who are aware of

such harm. The cases cited are those involving wrongful removal of

corneas, negligent disinterment, and also cases where the body has

been harmed by interfering with the disposition of the body--such

as refrigerator malfunction, negligent embalming, leaving body

unfit for funeral service and burial because of body decomposition.

None of such facts are present in this case.

Next reference is made to 22 Am.Jur.2d, Dead Bodies, § 37,

which emphasizes that courts have based liability on wrongful acts

with regard to a dead body on the interference with the right of

burial--again in this case there has been no actual interference

with the right of burial. The decisions cited by Am.Jur. involved

harm to the body which directly affects the availability of open

casket viewing, including mud and water damage to the body, lack of

17
refrigeration causing body to decay, loss of body, mutilation,

dissection, and removal of body parts, unauthorized autopsies, and

wrongful interment and wrongful disinterment. Again, I emphasize

that these cases involve physical manifestations or harm to the

body which interfere with the right of burial. Such facts are not

present in this case.

In the present case, there has been at most negligent

embalming and negligent display of such negligently embalmed body.

Those facts go beyond any of the authority upon which we state we

are relying. I agree with the holding of the opinion to the extent

that it does grant recovery under the specific facts of this case.

However, I do not agree with the very broad holding as above

quoted.

In substance, I believe we should hold that the party who

negligently embalmed the body by failure to close a surgical

incision and thereby prevent leaking of embalming fluid, and one

who negligently displays such negligently embalmed body, are

subject to liability to the deceased person's close relatives for

resulting emotional distress. I believe our holding should be

limited to the specific facts present in this case as we are in

fact going further than the cases upon which we rely.

I specifically dissent from the holding to the extent that it

holds that one who negligently removes, withholds, mutilates,

provides funeral, burial, or crematory services, or operates upon

the body of a dead person or prevents its proper interment or

cremation, is subject to liability. While I would agree that

18
certain of these types of conduct are subject to liability under

the foregoing authority, those facts are not presently before us

and our statements are essentially dicta. In particular, I dissent

from the key aspect of such holding which can be boiled down to a

holding that one who negligently provides funeral services is

subject to liability. At that point, all the rest of the standards

are eliminated and we have gone far beyond any of the authority

upon which we rely.

I would therefore limit the holding in this case as above

specifically set forth. I concur with the remaining parts of the

opinion.

19