Legal Question in Civil Litigation in Virginia
Funeral home embalmed without permission
My elderly great aunt passed away and when her daughter went to retrieve her body from the hospital the next morning, her body was released to a funeral home the family had not planned on using. The hospital released her body with the signature of a hospital sucurity guard. The funeral director claimed he received a verbal agreement from her elderly husband over the phone (totally untrue). When they went to get her body from this particular funeral home, he (director/owner) would not release her body unless he was paid for the embalming. My mother had to calm the family, they were extremely emotional, and tell the funeral director/owner to get it together unless he wanted media attention to the situation. With resistance, he finally agreed to release the body. To make matters worse, he did an auful job at the embalming. I truly do believe that this funeral director has done this before as a way of getting money out of the defenseless and poor (these particular relatives are extremely poor, they only had a 2000 dollar insurance policy). I believed he was/is working with the hospital's securtiy guard. Does my uncle and his daugher have a case...in reference to emotional disttess?
1 Answer from Attorneys
Re: Funeral home embalmed without permission
I believe that funeral homes are regulated, if I'm not mistaken. Your best option is to talk to those who regulate the industry.
I suspect that the funeral home has no right to withhold the body. That may be a violation of the regulations governing them. It is a different question if they can release the body and then sue for the money. But holding on to the body while demanding to get paid is most likely a violation of a number of regulations involving bodies and funeral homes, including for health reasons requiring prompt burial.
In Virginia, it is very hard to get emotional distress damages. This is not California. Virginia tries to be a no-nonsense State (although often that ends up creating more nonsense of a different kind in Virginia's courts). You would have to show INTENTIONAL infliction of emotional distress, which is almost impossible in a situation like this. The only arguments you could have would be from the withholding of the body if a funeral was already scheduled, etc., instead of just seeking payment later in the courts. One might say that embalming without permission, but since it is so normal and typical to embalm, I don't think that would work.
The problem with verbal agreements of course is that they are hard to prove. Some people joke that an oral agreement is worth the paper it is written on. Your side will say one thing. The other side will say the opposite. Who is the judge supposed to believe?
If the funeral home tries to collect the $2000, then they must prove that you agreed to the charge. So the burden is on them. If you are suing them, your side must prove that you said no to the embalming. That's the trouble.
If you already paid the $2000, you can go to general district court ($2000 actually being the maximum in small claims court) to ask for the money back. One basis for this would be "DURESS" -- basically, a mild form of blackmail. You only paid the $2000 under the blackmail of having the body rotting instead of being given a proper, respectful burial NOT based on agreement. And also that it was an over-payment you never agreed to.
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