Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—KanAppCt: Representations About Theft of Remains Not Deceptive, Unconscionable Conduct, (May 28, 2013)

By Jody Coultas, J.D.

A funeral home customer could not state a Kansas Consumer Protection Act (CPA) claim against a funeral home that temporarily misplaced the remains of the customer’s family member, a Kansas appellate court has held (Dana v. Heartland Management Co., May 24, 2013, Standridge, J.).

After the funeral home misplaced the remains of the customer’s son, the customer filed the CPA claim alleging that the funeral home engaged in deceptive business practices by telling the customer that the remains had been stolen when they had merely been misplaced due to a clerical error made by the funeral home. A trial court dismissed the claim.

There was no evidence that the funeral home engaged in deceptive acts that violated the CPA, according to the court. The CPA prohibits deceptive acts in connection with consumer transactions. Although there was not much evidence to support the funeral home’s contention that the remains were stolen during a break in, the court dismissed the customer’s argument that the funeral home purposefully lied about the remains being stolen and intentionally concealed the loss from the family. There was no evidence that the funeral home purposefully lied about a theft, and the act of telling the customer that the remains must have been stolen was not made with the purpose or intent to do wrong or cause injury.

The court also concluded that there was no evidence of unconscionable acts undertaken by the funeral home. The customer claimed that genuine issues of material fact existed with respect to whether the loss of the remains and unconfirmed statement to the family that the remains must have been stolen was unconscionable. In order to render a contract unconscionable, there must be an element of deceptive bargaining conduct present as well as unequal bargaining power. There was no evidence of deceptive bargaining or unequal bargaining power in this case. The cremation was performed and eventually the remains were shipped to the customer. Although the funeral home might have been careless or negligent, its actions did not rise to the level of unconscionable. There was also no evidence that the funeral home knew or should have known that it misled the customer. The funeral home merely expressed their mistaken belief that the remains must have been stolen, and the customer did not allege what he would have done differently had the statement not been made.

The case is No. 108,052.

Attorneys: Karen S. Rosenberg (Krigel & Krigel, P.C.) for Edwin S. Dana, Sr. David R. Cooper (Fisher, Patterson, Sayler & Smith, LLP) for Heartland Management Company, Inc.

Companies: Heartland Management Company, Inc.

Cases: StateUnfairTradePractices KansasNews