FILED
JUNE 24, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
THERESA WHITNEY, a married woman ) No. 31415-4-111
in her individual capacity; ROSE ANN ) (consolidated with
SANDS, a single woman, ) No. 31475-8-111)
)
Appellants, )
)
v. ) PUBLISHED OPINION
)
CECILIA CERVANTES, a single woman; )
CERVANTES LAW OFFICE, INC., a )
Washington corporation, RICK PHILLIPS )
and ANN PHILLIPS, husband and wife, )
d/b/a Telford's Chapel of the Valley, )
)
Respondents. )
LA WRENCE-BERREY, J. - Theresa Whitney sought control over burial of her
uncle's body. Rick Phillips of Telford's Chapel of the Valley denied Ms. Whitney's
request and allowed Cecelia Cervantes, the uncle's personal representative, to control
burial. Ms. Whitney and her sister Rose Ann Sands filed suit against Mr. Phillips and
Telford's for interference with the next of kin's right to control burial of a family
member, tortious interference with a dead body, and negligence. Mr. Phillips and
Telford's moved for summary judgment. The trial court dismissed all claims, finding that
No. 31415-4-III; 31475-8-III
Whitney v. Cervantes
the sisters failed to prove that Mr. Phillips acted intentionally when he denied control
over the burial. Ms. Whitney and Ms. Sands appeal. Finding no error, we affinn.
FACTS
Lawrence Wilhalm died in January 2011. He was not married, had no children,
and outlived his parents and siblings. Mr. Wilhalm's closest surviving relatives were his
nieces, Ms. Whitney and Ms. Sands, and their brother.
In 1999, more than 10 years before his death, Mr. Wilhalm executed a valid will
that included burial plans. He wished for a burial according to the Catholic faith, with
services to be held at the St. Rose of Lima Catholic Church and intennent in the church
cemetery. Additionally, he stated that he made arrangements with Nicoles Funeral Home
of Ephrata, Washington, gave the model and color of the casket, the dimensions and
description of the tombstone, and the color of suit in which he wanted to be buried. Mr.
Wilhalm's will stated that any changes or other details regarding his funeral arrangements
shall be set forth in a separate letter of intennent. Mr. Wilhalm's will named Cecelia
Cervantes as his alternate personal representative to manage, settle, and administer his
estate in accordance with the will. Ms. Cervantes is an attorney.
In 2010, Mr. Wilhalm created a document entitled "Burial Instructions: Lawrence
E. Wilhalm." Clerk's Papers (CP) at 46. Again, he requested a Catholic funeral and
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No. 314IS-4-III; 3147S-8-II1
Whitney v. Cervantes
burial at Saint Rose of Lima Cemetery in Ephrata. As a new addition, he stated that his
personal representative shall arrange for his burial, transportation, and interment of his
remains through Telford's or another facility within the personal representative's
discretion. The document was signed by Mr. Wilhalm, but was not signed by a witness.
Ms. Cervantes's law office prepared Mr. Wilhalm's 2010 burial instructions.
After Mr. Wilhalm died at a Spokane hospital, Ms. Cervantes contacted the
hospital for release of his remains. The hospital sent Ms. Cervantes a letter stating that it
was releasing Mr. Wilhalm's remains to Telford's based on Ms. Cervantes's status as
personal representative, Mr. Wilhalm's instructions, and Ms. Cervantes's representation
that there was no prepaid plan at Nicoles Funeral Home.
Ms. Cervantes contacted Mr. Phillips at Telford's. Based on a prior encounter
with Mr. Wilhalm, Mr. Phillips knew that Ms. Cervantes was Mr. Wilhalm's attorney and
that Mr. Wilhalm wanted Telford's to handle his funeral arrangements. Ms. Cervantes
showed Mr. Phillips the burial instructions indicating Mr. Wilhalm's wishes. Ms.
Cervantes said that she was acting as the personal representative of Mr. Wilhalm's estate
and would be in charge of the funeral and burial. Mr. Phillips did not see a reason to
question Ms. Cervantes's authority to act as Mr. Wilhalm's personal representative.
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No. 31415-4-III; 31475-8-III
Whitney v. Cervantes
Ms. Whitney contacted the hospital within 48 hours of her uncle's death. She was
told that Ms. Cervantes gave the hospital instructions with respect to Mr. Wilhalm's body.
She then contacted Telford's and spoke to Mr. Phillips to make funeral plans and
arrangements. She informed Mr. Phillips that she was Mr. Wilhalm's closest surviving
relative. She advised Mr. Phillips that Mr. Wilhalm had made arrangements with Nicoles
Funeral Home and that she wanted to make sure that her uncle's wishes were followed.
She also inquired about Mr. Wilhalm's burial policies, the amounts of the policies, and
the named beneficiaries of the policies.
Mr. Phillips told Ms. Whitney that Ms. Cervantes claimed to be in charge of
making Mr. Wilhalm's funeral arrangements and that Ms. Cervantes presented documents
to establish her authority to do so. Ms. Whitney was upset and overwhelmed emotionally.
When asked what documents were presented, Mr. Phillips told Ms. Whitney only that the
documents were in order and that he was going to allow Ms. Cervantes to control the
disposition of Mr. Wilhalm's body.
Ms. Whitney contacted Mr. Phillips three more times and asked about the
paperwork and reminded him that Ms. Cervantes was not related to Mr. Wilhalm. Mr.
Phillips did not respond to the inquiry. Mr. Phillips also would not provide the time, date,
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No. 3141S-4-III; 3147S-8-III
Whitney v. Cervantes
and location of the funeral service, and explained that Ms. Whitney would need to contact
Ms. Cervantes for the infonnation. I
Eventually, Ms. Whitney was told by a church parishioner that the funeral service
was scheduled for the next day at Saint Rose of Lima Catholic Church in Ephrata.
Despite the short notice, Ms. Whitney and Ms. Sands attended the service. At the
conclusion of the funeral, Mr. Phillips approached Ms. Whitney and demanded that she
give Ms. Cervantes the guest book.
Ms. Whitney and Ms. Sands (collectively Ms. Whitney) filed a complaint for
damages against Mr. Phillips and Telford's (collectively Mr. Phillips), and Ms. Cervantes
for interfering with the sisters' right as next of kin to control disposition of Mr. Wilhalm's
remains. 2 Ms. Whitney asserted (I) intentional interference with the right to control and
direct the burial of a family member's corpse, (2) tortious interference with a dead body,
and (3) negligence. Mr. Phillips moved for summary judgment dismissal of all claims.
The trial court reviewed the declarations from Ms. Whitney, Ms. Sands, and Mr.
Phillips. The court concluded that Ms. Whitney failed to establish an intentional act for
the purpose of summary judgment. Also, the court concluded that Washington has not
1 There is no dispute over whether Mr. Wilhalm received the funeral arrangements
that he requested in his will.
2 Ms. Whitney's claims against Ms. Cervantes are not subject to this appeal.
S
No. 31415-4-III; 31475-8-III
Whitney v. Cervantes
adopted the restatement that permits an action based on negligence. Thus, the court
granted Mr. Phillips's motion for summary judgment and dismissed Ms. Whitney's claims
with prejudice. A stipulated order was thereafter entered pursuant to CR 54(b),
permitting Ms. Whitney's appeal of the summary judgment prior to adjudicating her
claims against Ms. Cervantes.
ANALYSIS
Right to Control and Direct Burial. A trial court's decision on summary judgment
is reviewed de novo, meaning this court will engage in the same inquiry as the trial court.
Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 197,943 P.2d 286 (1997). Summary
judgment is proper if the record before the court shows that there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. Jd. at 197
98 (quoting CR 56(c)). "The facts and all reasonable inferences therefrom must be
considered in the light most favorable to the nonmoving party." Jd. at 198. The facts
presented must be more than speculative and argumentative assertions. Adams v. King
County, 164 Wn.2d 640, 647, 192 P.3d 891 (2008). "The court should grant summary
judgment 'only if reasonable persons could reach but one conclusion.'" Jd. (quoting
Retired Pub. Employees Council v. Charles, 148 Wn.2d 602,613,62 P.3d 470 (2003)).
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No. 31415-4-111; 31475-8-111
Whitney v. Cervantes
Ms. Whitney challenges the court's dismissal of her common law claim of
intentional interference with the next of kin's right to control and direct the burial ofa
family member's corpse. She contends that as next of kin, she was entitled to be the
contact person for the preplanned disposition of her uncle's body, and that Mr. Phillips
violated her right by allowing Ms. Cervantes to plan and control arrangements despite
Ms. Whitney's objection.
"The right to the next of kin to control and direct the burial ofa corpse and arrange
for its preservation is not only a natural right, embracing a high order of sentiment, but
has become to be well recognized as a legal right." Guilliume v. McCulloch, 173 Wash.
694,696,24 P.2d 93 (1933). Absent a decedent's testamentary disposition stating
otherwise, the right to control burial belongs exclusively to the next of kin. Id. at 697
(quoting Herzl Congregation v. Robinson, 142 Wash. 469, 473, 253 P. 654 (1927)).
"[T]here is a quasi property right in a dead human body inherent in the immediate
relatives of the deceased." Herz!, 142 Wash. at 472.
While the right to control disposition of a body arose out of common law, it is no,",:,
codified by statute in RCW 68.50.160. 3 A person has the right to control the disposition
The Washington Supreme Court in Herz! noted that the right of custody over a
3
dead body and disposal of the body has been recognized by Washington statute. Herz!,
142 Wash. at 471.
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No. 31415-4-III; 31475-8-II1
Whitney v. Cervantes
of his or her own remains. RCW 68.50.160(1). To execute this right, "[a] valid written
document expressing the decedent's wishes regarding the place or method of disposition
of his or her remains, signed by the decedent in the presence of a witness, is sufficient
legal authorization for the procedures to be accomplished." RCW 68.50.160(1).
However, if the decedent has not given directions or made prearrangements with a
funeral establishment, the right to control disposition of the remains vests to the persons
in the following order: (a) the surviving spouse, (b) the surviving adult children of the
decedent, (c) the surviving parents of the decedent, (d) the surviving siblings of the
decedent, and (e) person acting as a representative of the decedent under the signed
authorization of the decedent. Former RCW 68.50.160(3) (2010).
A licensed funeral establishment's liability for burying human remains is limited.
RCW 68.50.160(5). If the funeral establishment makes a good faith effort to locate the
person responsible as cited in former RCW 68.50.160(3)(a) through (e) or the legal
representative of the decedent's estate, "the cemetery authority or funeral establishment
shall have the right to rely on an authority to bury or cremate the remains, executed by the
most responsible party available, and the cemetery authority or funeral establishment may
not be held criminally or civilly liable for burying or cremating the human remains."
RCW 68.50.160(5).
8
No. 31415-4-111; 31475-8-111
Whitney v. Cervantes
As a preliminary note, we are not deciding the dispute of whether Ms. Whitney or
Ms. Cervantes had authority to control the burial of Mr. Wilhalm's body. Instead, the
legal issue before this court is whether Ms. Whitney is allowed to proceed with her claim
against Mr. Phillips for interfering with her alleged right to control the burial of her
uncle's body. We conclude as a matter oflaw that RCW 68.50.160(5) relieves Mr.
Phillips from liability. There is no evidence that would allow reasonable persons to
conclude that Mr. Phillips did not conduct a good faith investigation to locate the party
responsible for burial or Mr. Wilhalm's personal representative or that Mr. Phillips should
not have relied on Ms. Cervantes's authority to bury Mr. Wilhalm.
Evidence presented by Mr. Phillips meets his burden of establishing a good faith
investigation and his right to rely on Ms. Cervantes's authority. According to Mr.
Phillips's declaration, he identified Ms. Cervantes as Mr. Wilhalm's personal
representative. Ms. Cervantes told Mr. Phillips that she was Mr. Wilhalm's personal
representative and that she would be in charge of the burial. He stated that he had no
reason to question her authority as he knew that she was Mr. Wilhalm's attorney.
To further support his reliance on Ms. Cervantes's authority, Mr. Phillips viewed
Mr. Wilhalm's burial instructions that stated that his personal representative was to
arrange the burial and interment. Although the form was not valid because it lacked a
9
No. 31415-4-111; 31475-8-111
Whitney v. Cervantes
witness signature, no evidence was presented that Mr. Phillips knew that he should not
rely on the instructions. Instead, Mr. Phillips gave the instructions merit because they
specifically laid out the burial plans. Finally, Mr. Phillips relied on a letter from the
Spokane hospital that released Mr. Wilhalm's body to Mr. Phillips's funeral home. The
hospital identified Ms. Cervantes as Mr. Wilhalm's personal representative.
Ms. Whitney failed to present any contrary evidence to create a material issue of
fact regarding Mr. Phillips's investigation or his reliance on Ms. Cervantes. While Mr.
Phillips did not actively go searching for the information, this does not provide a basis for
reasonable persons to conclude that his investigation was not in good faith. The
documents Mr. Phillips viewed and his prior knowledge of Ms. Cervantes's relationship
with Mr. Wilhalm provided sufficient information for Mr. Phillips to reasonably rely on
Ms. Cervantes's authority to control the burial.
Also, Ms. Whitney's conversations with Mr. Phillips regarding her familial
relationship to Mr. Wilhalm and her skepticism of Ms. Cervantes's authority do not create
an issue of material fact. Although Ms. Whitney told Mr. Phillips that she was Mr.
Wilhalm's next of kin, there is no evidence that Ms. Whitney gave Mr. Phillips a reason
to believe that she had a legal basis for authority, thus establishing a need for further
10
No. 31415-4-III; 31475-8-III
Whitney v. Cervantes
investigation. To the contrary, Ms. Cervantes presented Mr. Phillips with documentation
that established her authority as the most responsible party available.
The trial court properly dismissed Ms. Whitney's claim of interference with the
right to control and direct burial of a family member. Ms. Whitney failed to create an
issue of material fact as to whether Mr. Phillips conducted a good faith effort to locate the
person cited in former RCW 68.50.160(3) or Mr. Wilhalm's personal representative. As a
matter of law, Mr. Phillips cannot be held civilly responsible for relying on Ms.
Cervantes's authority when burying Mr. Wilhalm.
Tortious Interference with a Dead Body. Ms. Whitney contends that the trial court
erred in dismissing her claim for tortious interference with a dead body because a material
issue of fact exists as to whether Mr. Phillips's acts were intentional. She maintains that
Mr. Phillips acted purposefully when he allowed Ms. Cervantes control over Mr.
Wilhalm's body despite Ms. Whitney's objections and without conducting a reasonable
investigation. Ms. Whitney claims that this interference caused her to suffer emotional
damage.
"The tort of interference with a dead body allows recovery for mental suffering
derived from the willful misuse of a body." Adams, 164 Wn.2d at 658. "The action is not
based on a property interest in the body itself, but rather an interest in the proper
11
No. 31415-4-III; 31475-8-III
Whitney v. Cervantes
treatment of the body." Id. The tort action is available for relatives of the deceased and
those who control the right to dispose of the body. Id.
The mental suffering must directly result from a willful wrong and not merely a
negligent act. Id. (quoting Bradbury v. Bleitz, 133 Wn.2d 134, 136,233 P. 299 (1925)).
For example, intentionally withholding or delaying the proper burial of a body constitutes
a willful misuse of the body. Id. at 659.
Ms. Whitney failed to present evidence that Mr. Phillips intentionally acted
wrongly when he denied Ms. Whitney control over the burial of Mr. Wilhalm's body.
There is no evidence that Mr. Phillips knew that Ms. Whitney should have controlled the
burial of the body and willfully denied her that right. Mr. Phillips considered the
documentation provided to him and allowed Ms. Cervantes to control disposition of Mr.
Wilhalm's body. There is no indication Mr. Phillips knew that the documents did not
provide Ms. Cervantes with legal authority. Even though Ms. Whitney objected to Ms.
Cervantes's control, Mr. Phillips's refusal to give Ms. Whitney control based on her
objections is not an intentional wrongful act relating to Mr. Wilhalm's body. In viewing
facts and reasonable inferences in the light most favorable to Ms. Whitney, reasonable
persons could not reach differing conclusions. The trial court properly dismissed Ms.
Whitney's claim for tortious interference with a dead body.
12
No. 31415-4-III; 31475-8-III
Whitney v. Cervantes
Negligence. Ms. Whitney contends that the trial court erred in dismissing her
negligence claim against Mr. Phillips. She maintains that reasonable persons could find
that Mr. Phillips acted negligently when he interfered with Ms. Whitney's right to bury
Mr. Wilhalm. We conclude that dismissal was proper. Washington law does not
recognize an action for negligent interference with a dead body. Adams, 164 Wn.2d at
656-57. Thus, as a matter oflaw, Ms. Whitney cannot pursue her negligence claim.
In her reply brief, Ms. Whitney asks this court to adopt Restatement (Second) of
Torts § 868 (1979), which permits recovery for negligent interference with a dead body.
Section 868 states in part that one who intentionally, recklessly, or negligently withholds
the body of a dead person can be liable to a member of the decedent's family who is
entitled to disposition of the body. We will not consider Ms. Whitney's argument for
adopting the restatement because she raised the issue for the first time in her reply brief.
See RAP 10.3(c); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801,809,828
P.2d 549 (1992). Furthermore, the Washington Supreme Court rejected prior arguments
requesting adoption of the restatement. Adams, 164 Wn.2d at 657 n.9.
13
No. 3141S-4-III; 3147S-8-III
Whitney v. Cervantes
We affirm.
'\
(y\(1
Lawrence-Berrey, J.
WE CONCUR:
Brown, J.
14
Theresa Whitney v. Cecilia Cervantes
Combined Opinion