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Washington Report
March - April 2005
Court rules on grave opening/closing rights
by ICFA General Counsel Robert M. Fells, Esq.
A recurring question in cemetery law involves the issue of whether a cemetery may reserve to its own staff the exclusive right to perform all grave openings and closings within its grounds.
A number of states have enacted statutes specifically granting cemeteries such rights, but none of these laws, to our knowledge, has been tested by the courts until now.
In January, the Indiana Court of Appeals published its decision in SCI Indiana Funeral Services Inc. v. D.O. McComb & Sons Inc., which held that a 1997 state statute establishing that cemeteries may exclusively open and close graves is reasonably necessary to protect public health, safety and welfare.
The case involved the issue of whether a settlement agreement entered into by a cemetery's previous owner with a third party also bound the new owner to the terms of the agreement with that third party.
The settlement ended litigation in 1993 wherein the third party, D.O. McComb & Sons Inc., had challenged Highland Park Cemetery's policy of exclusive grave openings and closings.
The agreement provided, among other things, that McComb's employees could sell and open/close graves at the cemetery. According to the court, subsequent to the agreement McComb took no steps to file any documentation with the county recorder to make the agreement a matter of public record, nor did McComb actually open or close any graves at Highland Park.
In 1997 two events occurred that resulted in the current litigation. First, McComb was notified that the cemetery was being sold to SCI and that the new owner would no longer comply with the agreement. Second, the Indiana legislature enacted the Exclusive Rights Act that provided in part: "Because the owner of a cemetery is responsible for the performance of the care and maintenance of the cemetery, a cemetery owner has the exclusive right to [among other things] open and close a grave or grave space, burial space, crypt, or niche in the cemetery." Violations of the act would result in criminal prosecution under the Indiana code.
In 2000, McComb filed a complaint against SCI alleging breach of the agreement, intentional interference with a contractual relationship, damages and injunctive relief to compel compliance with the terms of the agreement.
The trial court ruled in McComb's favor by interpreting the Exclusive Rights Act as protecting only a limited group of citizens who have deceased relatives buried at Highland Park, and not the general public.
SCI appealed on the basis that the settlement agreement violated the Exclusive Rights Act, which did reasonably protect the public interest. Therefore, SCI's appeal said, complying with the agreement would subject the company "to the neverending possibility of criminal prosecution."
The appeals court reversed the trial court by stating that the lower court erroneously interpreted the Exclusive Rights Act.
According to the appeals court, "In our view, the Exclusive Rights Act seeks to limit potential problems, such as damage to existing gravesites, by limiting the right to open and close graves to the cemetery owner...The trial court did not recognize that the number of people affected by the decision will continually expand so long as Highland Park remains in operation. Hence, the Exclusive Rights Act is, indeed, reasonably necessary for the protection of the health, safety and welfare of the general public, and the trial court erred in finding to the contrary."
The case was remanded back to the trial court with instructions that summary judgment should be granted to SCI.
Copyright ICFA 2005
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