An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA07-620 NORTH CAROLINA COURT OF APPEALS Filed: 18 March 2008 ALEXANDRA KLINGER, Plaintiff, v. New Hanover County No. 05-CVS-1725 SCI NORTH CAROLINA FUNERAL SERVICES, INC. d/b/a COBLE WARD- SMITH FUNERAL HOME AND CREMATION SERVICES, SCI FUNERAL SERVICES, INC., SERVICE CORPORATION INTERNATIONAL, and WILLIAM R. HARDEE, Defendants. Court of Appeals Slip Opinion Appeal by defendants from judgments entered 26 July 2006 and 6 October 2006 by Judge Jay D. Hockenbury in Superior Court, New Hanover County. Heard in the Court of Appeals 27 November 2007. Smith Moore LLP, by Robert R. Marcus, for plaintiff-appellee. Rountree, Losee & Baldwin, LLC, by George Rountree, III, for defendants-appellants. WYNN, Judge. Defendants appeal from judgments and punitive damages award entered against them for the negligent mishandling of a corpse. After a careful review of the record and transcripts before us, we affirm the judgment of negligence against Defendant but reverse the award of punitive damages due to lack of sufficient evidence. On 7 March 2002, Israel Klinger died in Wilmington, North
-2- Carolina, after a lengthy battle with a rare form of liver cancer. Pursuant to a preneed funeral contract signed and purchased by Kelly Lebenich, Mr. Klinger s fiancée and durable power of attorney, Mr. Klinger s body was embalmed and prepared for his funeral and burial under the direction of Defendant William R. Hardee, a funeral home director at Defendant Coble Ward-Smith Funeral Home, owned and operated by Defendant SCI North Carolina Funeral Services. According to Mr. Klinger s mother, Plaintiff Alexandra Klinger, she telephoned Mr. Hardee and Coble Ward-Smith Funeral Home immediately upon learning of her son s death. Ms. Klinger asserts that she informed Mr. Hardee of her Orthodox Jewish religious beliefs, which preclude embalming and require that a body be buried no more than forty-eight hours after death, following a period of sitting shiva with the body. However, Ms. Klinger contends that Mr. Hardee told her that she had no authority with respect to the body, that he was instead following Ms. Lebenich s instructions due to her power of attorney and the preneed contract, and that her son s body had already been embalmed and would be released to Ms. Lebenich. After a Baptist funeral in Wilmington, Mr. Klinger s body was released to Ms. Klinger; however, according to Ms. Klinger, the body had been desecrated and could no longer be buried in accordance with her Orthodox Jewish faith. 1 Ms. Klinger and her husband, Howard Klinger, subsequently 1 Howard Klinger dismissed all his claims against Defendants on the eve of trial.
-3- filed suit against Defendants, alleging negligent mishandling of Mr. Klinger s corpse, negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium (between Howard and Alexandra Klinger). Ms. Klinger specifically contends that, as next of kin, she should have been immediately notified of her son s death and given the opportunity to direct the disposition of his remains. Ms. Klinger also sought punitive damages on the basis that Defendants actions were malicious, willful, and wanton and demonstrated gross and reckless indifference to her rights. A jury trial began in New Hanover County on 19 June 2006 and lasted for approximately two weeks; the jury found Defendants negligent in their handling of Mr. Klinger s corpse but not negligent in causing Ms. Klinger severe emotional distress. The jury further found that Defendants had not intentionally, willfully, wantonly, or recklessly caused Ms. Klinger to suffer severe emotional distress. The jury awarded Ms. Klinger $100,000 in compensatory damages and $500,000 in punitive damages after finding that Defendants conduct was accompanied by an aggravating factor to justify punitive damages. Pursuant to statutory law, the trial court reduced the amount of punitive damages to $300,000. Defendants moved for a new trial and for judgment notwithstanding the verdict (JNOV); both motions were denied. Defendants now appeal, arguing that the trial court committed reversible error by (I) providing the jury with wrongful instructions as to the negligent mishandling of a corpse; (II)
-4- denying their motion for JNOV and failing to set aside the punitive damages award; (III) failing to grant their motion for a new trial when the jury returned an inconsistent verdict; and (IV) failing to state its reasons for upholding the findings and award of punitive damages. I. Defendants first argue that the trial court erred by providing the jury with wrongful instructions on Ms. Klinger s claim of negligent mishandling of a corpse. Essentially, Defendants contend that they owed no legal duty to Ms. Klinger, as the next of kin, and the trial court therefore erred by referring in the jury instructions to the duty to next of kin, rather than to persons with legal authority. We disagree. To recover for negligence in North Carolina, a plaintiff must show (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of plaintiffs injury. Dumouchelle v. Duke Univ., 69 N.C. App. 471, 473, 317 S.E.2d 100, 102 (1984). With respect to the negligent mishandling of a corpse, our case law further provides that: The person entitled to possession of a body may recover damages for mental suffering caused by negligent or intentional mishandling or mutilation of the body. If such mishandling or mutilation is willful, malicious or grossly negligent, punitive damages may also be recovered. As a general rule, only the person entitled to possession and disposition of a body may maintain an action for mishandling or mutilation of the
-5- body. Id. at 474, 317 S.E.2d at 102-03 (internal citations omitted). At the time of Mr. Klinger s death, North Carolina law provided that an individual could direct the disposition of his own remains pursuant to (1) a written will; (2) a health care power of attorney (HCPOA); (3) a preneed funeral contract; (4) a cremation authorization form; or (5) a written statement properly signed and witnessed. N.C. Gen. Stat. 130A-420(a) (2001). If the individual does not make provisions through one of those methods, the statute further allowed that the next of kin may authorize the type, method, place, and disposition of the decedent s body. Id. 130A-420(b). In the instant case, the HCPOA that Mr. Klinger gave to Ms. Lebenich contained no explicit provisions as to the disposition of his remains, aside from authorizing her to direct such disposition. More significantly, evidence introduced at trial showed that Mr. Klinger had not been declared incapacitated as of the date Ms. Lebenich signed the preneed contract; as such, the HCPOA had not yet gone into effect and Ms. Lebenich had no authority to direct the disposition of Mr. Klinger s remains. Additionally, all parties stipulated that the powers granted to Ms. Lebenich under both the HCPOA and the durable POA expired upon Mr. Klinger s death. The preneed contract signed and purchased by Ms. Lebenich also did not contain any explicit instructions as to the disposition of Mr. Klinger s remains; rather, the executory and revocable contract only offered insurance against an increase in
-6- prices for certain services, without specifying that those services must be purchased. Indeed, the record is devoid of any testamentary provisions made by Mr. Klinger providing how he would like to be buried or what other rituals should be followed. See Dumouchelle, 69 N.C. App. at 476, 317 S.E.2d at 104 ( [W]e hold that a testamentary provision directing disposition of the testator s body must prevail over conflicting wishes of the testator s next-of-kin. ). Thus, Mr. Klinger did not make any testamentary provisions as to the disposition of his remains; indeed, he provided no written instructions, testamentary or otherwise, that indicated his preferences on the issue. See id. at 476 n.2, 317 S.E.2d at 104 n.2 (noting that statutory law permits the personal representative of the deceased to carry out written instructions pertaining to disposition of the body, whether they appear in a will or not. ). In the absence of such instructions, North Carolina General Statute 130A-420(b) authorized his next of kin to make those decisions. 2 As such, as the law stood at that point in time, Ms. Klinger was entitled to possession of Mr. Klinger s body as a matter of law and could therefore maintain an action for mishandling... the body. Id. at 474, 317 S.E.2d at 102-03. Moreover, under the law, Defendants had a duty prior to accepting the body to make due 2 We note that the General Assembly has since changed the law so that an HCPOA no longer expires upon an individual s death; as such, a person in Ms. Lebenich s position today would still have the authority to direct the disposition of the decedent s remains under the terms of the HCPOA. See N.C. Gen. Stat. 32A-20 (2005).
-7- inquiry as to the desires of the persons who have the legal authority to direct the disposition of the decedent s body. N.C. Gen. Stat. 90-210-25(e)(2) (2005). Defendants object to the following instructions given by the trial court to the jury: Negligence refers to a person s failure to follow a duty of conduct imposed by law. Every person is, under a duty, to use ordinary care to protect himself and others from injury or damage. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury or damage. A person s failure to use ordinary care is negligence. Defendants further assign error to the trial court s summary for the jury that Ms. Klinger contended that Defendants had been negligent in mishandling Mr. Klinger s corpse by doing one or more of the following: 1. Failing to ascertain the identity of or contact Israel Klinger s next of kin; 2. Failing to follow the instruction of Israel Klinger s next of kin with respect to the handling of the body; 3. Embalming the body of Israel Klinger without authority or authorization from his next of kin; 4. Conducting a funeral for Israel Klinger without authority or authorization from his next of kin; 5. Failing to stop and take no further action with respect to Israel Klinger s body after being contacted by the next of kin. The trial court then expanded on each of these five assertions, defining the standard of care for each as that which a reasonable and prudent funeral home would have used for each action, and stating that failure to meet that standard of care would constitute
-8- negligence. We can discern no error in the trial court s description and summary of the issue of negligence for the jury. The trial court provided an accurate statement of the law of negligence, as well as to whom Defendants owed a legal duty. See id. at 473-74, 317 S.E.2d at 102-03. According to the statutory law in effect at the time of Mr. Klinger s death, funeral, and burial, his next-of-kin had the authority to direct the disposition of his remains. Because Mr. Klinger died unmarried and without children, Ms. Klinger was his next-of-kin. All parties stipulated to the fact that Defendants did not contact Ms. Klinger at any point following Mr. Klinger s death, including prior to embalming his body. The jury also heard from experts for both Ms. Klinger and Defendants as to the standard of care in the funeral home industry, which addressed each of the five claims of breach described by the trial court in its instructions to the jury. This argument is overruled. II. Defendants next assert that the trial court erred by denying their motion for judgment notwithstanding the verdict (JNOV) and failing to set aside the punitive damages award. We agree. As stated previously, [i]f such mishandling or mutilation [of a corpse] is willful, malicious or grossly negligent, punitive damages may also be recovered by the person entitled to possession of the body. Id. at 474, 317 S.E.2d at 102-03; see also N.C. Gen. Stat. 1D-15(a) (2005) ( Punitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory
-9- damages and that [an] aggravating factor[] was present and was related to the injury for which compensatory damages were awarded[.] ). A plaintiff seeking punitive damages must prove the existence of an aggravating factor of either fraud, malice, or willful or wanton conduct by clear and convincing evidence. Id. 1D-15(b). We review a trial court s denial of a motion for JNOV de novo, examining all evidence in the light most favorable to the nonmoving party and giving that party the benefit of every reasonable inference, ultimately considering whether the evidence is sufficient to be submitted to the jury. Denson v. Richmond County, 159 N.C. App. 408, 411, 583 S.E.2d 318, 320 (2003) (quotation and citation omitted). Thus, in a case such as this, we determine whether the plaintiff submitted sufficient evidence to the jury to meet the standard of clear and convincing evidence necessary for an award of punitive damages. We find that Ms. Klinger did not. At trial, the jury heard testimony from Ms. Klinger that she telephoned the funeral home and spoke to Mr. Hardee after she learned of her son s death. According to Ms. Klinger, she was screaming and yelling on the telephone, hysterical still and crying, when Mr. Hardee informed her that he was following the instructions of Ms. Lebenich, who had power of attorney. Ms. Klinger further recounted that Mr. Hardee told her that it was too late, and Mr. Klinger had already been embalmed. Ms. Klinger stated that Mr. Hardee was quite rude on the telephone, with a
-10- callous way of which he said it, like brushing [her] aside so... [she] had nothing to do with it. From a careful review of the trial transcripts, this is the only evidence of any rudeness by one of Defendants directly suffered by Ms. Klinger. Additionally, Mr. Hardee testified in direct contravention of this evidence, stating that this telephone call never took place. No other evidence presented by Ms. Klinger corroborated the telephone call, although the verdict suggests that the jury believed her over Mr. Hardee. Ms. Klinger further argues in her brief to this Court that a number of other facts could have been found by the jury to support the award of punitive damages. In particular, she asserts that the jury could have found Defendants made no effort to contact Ms. Klinger and instead took direction from Ms. Lebenich; indeed, those facts were stipulated to by all parties at the outset of the trial. Nevertheless, that failure to make contact proves only the negligence found by the jury, not an aggravating factor sufficient for punitive damages. Ms. Klinger also contends that the evidence shows that Defendants intentionally or willfully decided to side with Ms. Lebenich over Ms. Klinger because [Ms. Lebenich] was friends with defendant Hardee. However, we see no evidence to support this contention; even if Mr. Hardee and Ms. Lebenich attended the same church and were indeed friends or acquaintances, Ms. Klinger did not offer any evidence of intentional or willful action on Mr. Hardee s part to choose sides in this matter based on that relationship. Likewise, Ms. Klinger s argument that the evidence showed that Defendants intentionally
-11- held [Mr. Klinger s] body for several days to conduct a Baptist funeral in direct contradiction of the wishes of the family is true only to the extent that Defendants conceded that they did hold the body for several days, per Ms. Lebenich s instructions. Ms. Klinger did not show by sufficient clear and convincing evidence that Defendants acted with fraud, malice, or willful or wanton conduct. Although the evidence did reflect that Defendants intentionally followed the instructions of Ms. Lebenich, rather than those of Ms. Klinger, there was no showing that their reliance on Ms. Lebenich s power of attorney was willful or in wanton disregard of Ms. Klinger s rights. Indeed, even the testimony by Ms. Klinger concerning her telephone call with Mr. Hardee illustrates that he believed he was following the directions of the individual with the legal authority to direct the disposition of Mr. Klinger s remains. Although Mr. Hardee was mistaken in this belief, Ms. Klinger did not show by clear and convincing evidence that this mistake was accompanied by an aggravating factor of fraud, malice, or willful or wanton conduct sufficient to support an award of punitive damages. Accordingly, we conclude the trial court erred by denying Defendants motion for JNOV on the issue of punitive damages. Finding the evidence to have been insufficient as a matter of law, we reverse the award of punitive damages to Ms. Klinger. III. Next, Defendants contend that the trial court erred by failing to grant their motion for a new trial when the jury returned an
-12- inconsistent verdict. Defendants specifically argue that the jury s finding that Defendants did not negligently, intentionally, willfully, wantonly, or recklessly cause Ms. Klinger severe emotional distress was inconsistent with their award of actual damages to Ms. Klinger for the negligent mishandling of Mr. Klinger s corpse, since the only damage that she claimed was severe emotional distress. We find this argument to be wholly without merit. Ms. Klinger s original complaint in this case asserted that, due to Defendants negligent mishandling of her son s body, she had suffered deep emotional pain and suffering and mental anguish and [was] forever deprived of [her] right to lay [her] son to rest in the manner in which [she] desired. Her allegations of severe emotional distress were made in conjunction with her claims for negligent infliction of emotional distress, intentional infliction of emotional distress, and punitive damages. As such, the jury s verdict that Defendants were negligent, causing $100,000 in damages to Ms. Klinger, presumably for her pain and suffering, is consistent with their findings that Defendants did not cause Ms. Klinger severe emotional distress. This assignment of error is overruled. IV. Finally, Defendants contend that the trial court erred by failing to state its reasons for upholding the findings and award of punitive damages. Because we have already reversed the award of punitive damages on other grounds, we decline to consider this
-13- issue. Affirmed in part; reversed in part. Judges BRYANT and ELMORE concur. Report per Rule 30(e).