Wahl v. John Molnar Funeral Home, Inc.

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KATHERYN WAHL and ANGELA LANZI, Plaintiffs-Appellees, v. JOHN MOLNAR FUNERAL HOME, INC., doing business as MOLNAR FUNERAL HOME, Defendant-Appellant, and SHAWN PARCELLS and NATIONAL AUTOPSY AND TISSUE RECOVERY SERVICES, INC., Defendants.

No. 356581

Court of Appeals of Michigan

February 17, 2022

UNPUBLISHED

Wayne Circuit Court LC No. 2020-016442-NZ

Before: Rick, P.J., and Murray and Shapiro, JJ.

Per Curiam.

Defendant John Molnar Funeral Home, Inc., d/b/a Molnar Funeral Home (Molnar), appeals by leave granted the trial court's order denying its motion for summary disposition of plaintiffs' tort claims. For the reasons stated in this opinion, we affirm in part and reverse in part.

I. BACKGROUND

Many of the underlying facts are not in dispute. On March 4, 2019 Richard Wahl (decedent) died from a lung disease. Kathryn Wahl, decedent's wife, ^[1] contracted with Molnar to transfer the body to the funeral home and cremate the remains. Wahl met with Kelli Johnson, Molnar's funeral director, and informed Johnson that she wished to have decedent's body autopsied to determine the cause of death because she suspected the lung disease may have been caused by asbestos exposure from his work as an electrician. For an additional fee, Johnson agreed to rent Wahl a room in the funeral establishment for the autopsy, but she explained to Wahl that Molnar did not perform autopsies. Johnson recommended a local pathologist to perform an independent autopsy, but Wahl instead contracted with defendants Shawn Parcells and his company, National Autopsy and Tissue Recovery Services, Inc. (the "autopsy defendants"), whom she found in an internet search.

The autopsy defendants are based in Kansas and sent a representative to Michigan to perform an autopsy of decedent in the room Wahl rented from Molnar. On March 7, 2019, the representative presented at Molnar's funeral establishment to perform the autopsy. No Molnar employee assisted in the autopsy, and when it appeared to Johnson that the autopsy had been completed, she called Wahl that day, advised her that the autopsy was complete, and asked for permission to cremate the body. The following day, March 8, 2019, Wahl replied with a text message telling Johnson to move forward with the cremation. The body was cremated that day.

In December 2020, plaintiffs filed suit against the autopsy defendants and Molnar. Plaintiffs alleged that the autopsy defendants never provided a report or results of any testing performed on tissue samples taken during the autopsy. They further alleged that Parcells was National Autopsy's only employee and that he was not a board-certified pathologist or a doctor of any kind. As against Molnar, plaintiffs pleaded counts of negligence, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED). Plaintiffs alleged that Molnar owed and breached duties to them to determine the qualifications of the representative sent by the autopsy defendants, supervise the autopsy and ensure that the purposes of the autopsy were accomplished before proceeding with the cremation.

In lieu of filing an answer, Molnar moved for summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact). Molnar argued that it owed no duty to plaintiffs with regard to the autopsy when it was undisputed that none of Molnar's employees were involved in the autopsy and that plaintiffs independently contracted with the autopsy defendants. Molnar also relied on Johnson's affidavit in which she explained the basis for her belief that the autopsy had been completed on March 7, 2019. Specifically, Johnson attested that the representative had said that he performed the autopsy, which was consistent with her "layperson's observations" of incisions to decedent's abdominal cavity as well as jars containing what appeared to be tissue specimens removed from decedent's body. Molnar also argued that plaintiffs' claims were barred by the liability protection afforded to funeral establishments in MCL 700.3209(3).

In response, plaintiffs contended that summary disposition was premature because discovery had not been held. Plaintiffs asserted that discovery would show that Wahl's instruction to move forward with the cremation was caused by Johnson's misrepresentation that the autopsy was successfully completed for its intended purpose, i.e., to determine whether decedent died from mesothelioma. Generally, plaintiffs asserted that Molnar had failed to ensure that the individual who conducted the autopsy was qualified to do so, and then simply assumed that the autopsy and necessary testing was performed. Plaintiffs argued that Molnar owed them common-law duties arising through their contractual relationship. Regarding MCL 700.3209(3), plaintiffs argued that the statute was inapplicable because Molnar's reliance on Wahl's instruction was not in good faith. Finally, plaintiffs contended that the alleged misrepresentation that the autopsy was successful, combined with the subsequent cremation, was extreme and outrageous conduct.

The trial court decided the motion on the briefs and issued an order denying the motion for summary disposition, noting only "Question of Fact" as an explanation.

II. ANALYSIS

A. NEGLIGENCE

Molnar first argues that it is entitled to summary disposition of plaintiffs' negligence claim because it owed plaintiffs no legal duty to determine the qualifications of the representative sent by autopsy defendants, supervise the autopsy or ensure that it was successful. We agree, but conclude that Molnar did owe plaintiffs a duty to accurately report when the autopsy was completed and that discovery is needed to determine if there is a question of fact on that matter.^[2]

"To establish a prima facie case of negligence, plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages." Finazzo v Fire Equip Co, 323 Mich.App. 620, 635; 918 N.W.2d 200 (2018). Whether a duty exists is a question of law. Hill v Sears, Roebuck and Co, 492 Mich. 651, 659; 822 N.W.2d 190 (2012). "[A] duty of care may arise by way of statute, a contractual relationship, or the common law." Powell-Murphy v Revitalizing Auto Communities Environmental Response Trust, 333 Mich.App. 234, 243; 964 N.W.2d 50 (2020). In determining whether a legal duty exists, courts consider the parties' relationship, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented. Hill, 492 Mich. at 661.

Plaintiffs' contend that Molnar owed them duties to determine the qualifications of the representative sent by autopsy defendants, supervise the autopsy and ensure that the purpose of the autopsy was completed. However, although plaintiffs distinguish the caselaw relied on by Molnar, ^[3] they fail to address the factors defined by caselaw for determining whether a duty should be imposed. See id. And consideration of those factors shows that there is no basis for imposing the alleged duties. The parties had a limited relationship. Molnar's duties under the contract were only to provide a room in which the autopsy would occur, clean up afterward, return the body to cold storage, and later cremate the body on Wahl's approval. In other words, Molnar assumed no obligation relating to the performance of the autopsy itself. Nonetheless, plaintiffs seek to impose expansive duties on Molnar to investigate the qualifications of the autopsy defendants selected by plaintiffs and to determine that the autopsy was properly performed. Because Molnar is a funeral establishment that does not perform autopsies, these duties would seemingly require it to hire its own pathologist every time it rented an autopsy room. Plaintiffs make no argument as to why this is a justifiable burden, nor do they explain how it was reasonably foreseeable to Molnar that the independent contractor selected by plaintiffs was unqualified. In any event, we conclude that there is no basis to impose these broad duties on Molnar considering the parties' limited relationship. See id. at 662 ("Because only a limited relationship existed, only a limited duty could be imposed, and consequently, it [is] unnecessary to consider the other factors relevant to determining whether a duty existed.").

That said, we conclude that a duty arose from Molnar's contractual obligations to accurately inform Wahl when the autopsy had been completed.^[4] This is a limited duty commensurate with the parties' limited contractual relationship. Indeed, Molnar could not have obtained Wahl's approval to cremate the body without first informing her that the autopsy had been completed. Molnar had a duty to use reasonable care in reaching that conclusion. See Clark v Dalman, 379 Mich. 251, 261, 150 N.W.2d 755 (1967) ("The basic rule of common law imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others.").

Plaintiff maintains that discovery is needed to determine whether Molnar misrepresented that the autopsy was completed, which then caused Wahl to instruct Molnar to move forward with the cremation. We agree. Whether the autopsy was completed when Johnson made that representation to Wahl is a question of fact. No responsive pleading has been filed, and Johnson's affidavit does not fully explain the basis for her belief that the autopsy was done. Further, plaintiffs have not had an opportunity to depose Johnson and the autopsy representative. Accordingly, as to the claim of negligence relating to the alleged misrepresentation, we affirm the denial of summary disposition.

B. IIED & NIED

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