Coley v. Bradshaw & Range Funeral Home, P.C. ( 2020 )

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Appellate Court Date: 2021.09.07
13:11:32 -05'00'
Coley v. Bradshaw & Range Funeral Home, P.C., 2020 IL App (2d) 190627Appellate Court RAASHAN COLEY, Plaintiff-Appellant, v. BRADSHAW &
Caption RANGE FUNERAL HOME, P.C., Defendant-Appellee.
District & No. Second District
No. 2-19-0627
Filed December 21, 2020
Decision Under Appeal from the Circuit Court of Lake County, No. 17-L-480; the
Review Hon. David P. Brodsky, Judge, presiding.
Judgment Affirmed.
Counsel on Raashan Coley, of Lisbon, Ohio, appellant pro se.
Appeal
Timothy D. McMahon, J. Jason Coggins, and Michael D. Barnes, of
Wiedner & McAuliffe, Ltd., of Chicago, for appellee.
Panel PRESIDING JUSTICE BRIDGES delivered the judgment of the
court, with opinion.
Justices Jorgensen and Brennan concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, Raashan Coley (Coley), proceeding pro se, appeals the trial court’s dismissal of
his claim for negligent interference with his right to the possession of his deceased daughter’s
remains. Defendant, Bradshaw & Range Funeral Home, P.C. (Bradshaw), had moved to
dismiss the claim, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735
ILCS 5/2-619(a)(9) (West 2018)), arguing that section 45 of the Disposition of Remains Act
(Remains Act) (755 ILCS 65/45 (West 2014)) shielded it from liability. On appeal, Coley
argues that his claim should not have been dismissed because Bradshaw failed to meet section
45’s requirements. Coley is not challenging the outcome of the jury trial on his claims for
intentional infliction of emotional distress and willful and wanton conduct. We affirm.
¶2 I. BACKGROUND
¶3 Raashanai J. Coley (Raashanai) died intestate on September 5, 2014, after being struck in
the stomach by her mother, Nicholette Lawrence, following a period of prolonged neglect and
abuse. Bradshaw was the funeral establishment that handled Raashanai’s remains and
facilitated their transfer to the crematory. At the instruction of her maternal grandfather,
Carlton North, Raashanai’s body was cremated on September 26, 2014. The cremation was
performed by Mt. Olivet Memorial Park Ltd. (Mt. Olivet). Coley did not learn of his daughter’s
death and cremation until October 9, 2014. Coley maintains that, as next of kin, he had the
right to control the disposition of his daughter’s remains.
¶4 On May 1, 2015, Coley filed in the circuit court of Lake County his first complaint, against
Bradshaw and Mt. Olivet. Coley voluntarily dismissed this action on October 4, 2016, and
refiled his case on June 28, 2017. On May 10, 2018, Coley filed an amended complaint, against
Bradshaw only, alleging intentional infliction of emotional distress (count I), willful and
wanton/reckless interference with the right to possess and preserve the body of the minor
decedent (count II), and negligent interference with the right of the parent to possess and
preserve the body of the minor decedent (count III).
¶5 The pertinent allegations of count III of Coley’s amended complaint were as follows:
(1) apart from Lawrence, who was charged with Raashanai’s murder, Coley was Raashanai’s
only adult heir and next of kin; (2) Bradshaw did not attempt to contact Coley regarding the
disposition of Raashanai’s remains; (3) Bradshaw knew or should have known that Lawrence
was charged with the murder of Raashanai and thus not entitled to control the disposition of
Raashanai’s remains; (4) Bradshaw had a duty not to interfere with Coley’s right to possess
his daughter’s remains; (5) Bradshaw breached that duty when it failed to obtain Coley’s
authorization for the cremation, secured and transmitted invalid authorization forms for the
cremation, and transported or allowed the transportation of Raashanai’s remains for cremation;
and (6) these breaches caused Coley damages in the form of severe emotional distress, mental
suffering, humiliation, and anguish.
¶6 Bradshaw moved to dismiss count III of Coley’s amended complaint, pursuant to section
2-619(a)(9), arguing as follows: (1) between the time of Raashanai’s death and her cremation,
Coley was in Mexico, evading capture by United States law enforcement officials; (2) North
told Bradshaw that he did not know the whereabouts of Coley or how to contact him;
(3) Bradshaw received a release authorization (Release) from Lawrence dated September 23,
2014, authorizing North to arrange for the disposition of Raashanai’s remains; and (4) on
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September 25, 2014, Bradshaw received two authorizations (Authorization Forms) from North
for the cremation. One was an “Authorization for Removal of Decedent,” which stated: “I (we)
hereby represent that I am (we are) of the same and nearest degree of relationship to the
deceased and/or are legally authorized or charged with the responsibility for such burial and/or
other disposition.” The other was a cremation authorization form, which stated: “There is
another living persons [sic] (Nicholette Lawrence) who has the right to control the final
disposition of the decedent but that person has provided, me (us) with written permission to
arrange for the cremation of the decedent.” Bradshaw argued that, because it relied on these
representations from North, it could not be held liable under an ordinary negligence theory. In
support, Bradshaw cited section 45 of the Remains Act, which states, “There shall be no
liability for *** a funeral establishment that carries out *** the directions of any person who
represents that the person is entitled to control the disposition of the decedent’s remains.” Id.¶7 Bradshaw’s motion was supported by an affidavit from North, in which he stated that he
was Raashanai’s maternal grandfather and that he resided in Oregon. He said that he first
learned of Raashanai’s death on September 6, 2014. He learned from the Lake County
Coroner’s Office that the coroner was holding Raashanai’s body and that an autopsy had been
performed. Afterward, the body was placed in the coroner’s morgue while the coroner waited
for next of kin to claim the remains. Raashanai’s body remained unclaimed at the morgue for
at least three weeks, after which the coroner’s office informed North that it would release
Raashanai’s remains to him.
¶8 The coroner’s office recommended Bradshaw to North. North contacted Bradshaw’s
funeral director, Richard Bradshaw, who asked about Coley’s whereabouts. North informed
Richard Bradshaw that Coley had been incarcerated in various prisons for much of Raashanai’s
life, that it had been over a year since he had heard from Coley, and that he did not know where
Coley or any of his immediate family lived or how to contact them. Richard Bradshaw
informed North that, before Bradshaw would allow him to provide for the final disposition of
Raashanai’s body and for cremation, it would require a release from Lawrence transferring her
rights to him. It was Lawrence’s decision that Raashanai be cremated, and North agreed with
her. North provided Bradshaw with the Release as well as the two Authorization Forms.
¶9 In response to Bradshaw’s motion to dismiss, Coley argued that nothing in Illinois law
gave a party the ability to transfer to another person his or her right to control a decedent’s
remains and, as such, the Release and the Authorization Forms were ineffective. Further, the
Release itself was evidence that Bradshaw knew that Lawrence had been charged with
Raashanai’s murder and that it knew that Lawrence was disqualified from determining the
disposition of the remains pursuant to section 20(b) of the Remains Act (id. § 20(b)).
Therefore, Bradshaw clearly knew that it had an obligation to make reasonable efforts to locate
Coley under section 5 of the Remains Act (id. § 5), which it did not do. With regard to the
Release and the Authorization Forms, Bradshaw knew that Lawrence had no authority to
control the disposition of Raashanai’s remains and, as such, knew that North’s representations
that he was entitled to control the disposition of the remains were to the contrary. As such,
section 45 did not apply because there was no reliance.
¶ 10 In reply, Bradshaw argued as follows. Coley failed to respond to North’s affidavit with any
counteraffidavit, and therefore the facts in North’s affidavit must be taken as true. Further,
even if the allegations in Coley’s response were treated as true, that would not allow him to
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proceed on a negligence theory, as those facts would support a willful and wanton/reckless
interference theory.
¶ 11 The trial court granted Bradshaw’s motion to dismiss count III. The case then proceeded
to a jury trial on counts I and II, with the jury finding in favor of Bradshaw on both counts.
¶ 12 Coley filed a posttrial motion to set aside the verdict and for a new trial. The motion mostly
focused on what evidence was admitted at trial, with a single paragraph arguing that the trial
court erred in dismissing count III. The motion claimed that count III would have had a lower
burden of proof than the other counts and would not have required a showing of willful or
wanton conduct, but it otherwise contained no explanation as to how the trial court erred.
Coley’s reply in support of his motion expanded somewhat on this point, arguing that the
protections of section 45 did not apply because Bradshaw knew that Coley had the greater right
to control the disposition of the remains and as such was not entitled to rely on North’s
representations.
¶ 13 Coley timely appealed.
¶ 14 II. ANALYSIS
¶ 15 A. Standard of Review
¶ 16 Coley argues that the trial court erred when it granted Bradshaw’s section 2-619(a)(9)
motion to dismiss count III for negligent interference with the possession of his daughter’s
remains. Section 2-619(a)(9) of the Code allows a defendant to move to dismiss a claim where
“the claim asserted against defendant is barred by other affirmative matter avoiding the legal
effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2018). A section 2-619(a)(9)
motion to dismiss allows for issues of law and easily proven issues of fact related to the
affirmative matter to be disposed of early in litigation. Reynolds v. Jimmy John’s Enterprises,
LLC, 2013 IL App (4th) 120139, ¶ 30. In such a motion, the defendant is effectively saying,
“ ‘Yes, the complaint was legally sufficient, but an affirmative matter exists that defeats the
claim.’ ” Winters v. Wangler, 386 Ill. App. 3d 788, 792 (2008). “Immunity from tort liability
pursuant to statute is an affirmative matter properly raised in a section 2-619 motion to
dismiss.” Sandholm v. Kuecker, 2012 IL 111443, ¶ 54. When considering a motion to dismiss
pursuant to section 2-619, a court must accept as true all well-pleaded facts, as well as any
reasonable inferences drawn from those facts, but not mere conclusions unsupported by
specific facts. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. The court
must also interpret all pleadings and supporting documents in the light most favorable to the
nonmoving party. Snyder v. Heidelberger, 2011 IL 111052, ¶ 8. The dismissal of a claim
pursuant to section 2-619(a)(9) is reviewed de novo. Id.¶ 17 This appeal centers on whether section 45 of the Remains Act shields Bradshaw from
liability under Coley’s negligence claim. This is an issue of statutory interpretation. The
primary goal of statutory interpretation is to ascertain and give effect to the intent of the
legislature. Ryan v. Board of Trustees of the General Assembly Retirement System, 236 Ill. 2d
315, 319 (2010). The best indication of the legislature’s intent is the plain language of the
statute itself. Id. In determining the plain meaning of statutory language, the court looks to the
statute as a whole, the subject it addresses, and the apparent intent of the legislature. People v.
Perry, 224 Ill. 2d 312, 323 (2007). Where the statutory language is clear and unambiguous, it
must be applied without resorting to additional tools of statutory interpretation. Benzakry v.
Patel, 2017 IL App (3d) 160162, ¶ 74. The construction of a statute is a question of law and is
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reviewed de novo. Sperl v. Henry, 2018 IL 123132, ¶ 23.
¶ 18 B. The Disposition of Remains Act
¶ 19 Section 5 of the Remains Act (755 ILCS 65/5 (West 2014)) sets forth a list of individuals
who have the right to dispose of a decedent’s remains, prioritizing such individuals in the
following order: any individual designated by the decedent in a written instrument, the
executor of the decedent’s estate if they are carrying out instructions contained in the
decedent’s will, the decedent’s spouse, the decedent’s adult children, the decedent’s parents,
adults in the next degrees of kindred, and so on.
¶ 20 Section 20(b) of the Remains Act provides that “[i]f any person who would otherwise have
the right to control the disposition *** has been charged with first or second degree murder
*** in connection with the decedent’s death and those charges are known to the funeral director
***, that person’s right to control is relinquished.” Id. § 20(b).
¶ 21 There has been no prior case that examines section 45 of the Remains Act, and as such,
this is an issue of first impression. Section 45 of the Remains Act reads as follows:
“There shall be no liability for a cemetery organization, a business operating a
crematory or columbarium or both, a funeral director or an embalmer, or a funeral
establishment that carries out the written directions of a decedent or the directions of
any person who represents that the person is entitled to control the disposition of the
decedent’s remains. Nothing herein shall be intended or construed to reduce or
eliminate liability for the gross negligence or willful acts of any cemetery organization,
business operating a crematory or columbarium or both, funeral director or embalmer,
or funeral establishment.” Id. § 45.
Under the plain language of the statute, in order to be shielded from liability by section 45, a
defendant must show the following: (1) the defendant is a cemetery organization, a business
operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral
establishment; (2) the defendant carried out the written directions of a decedent or the
directions of any person who represents that the person is entitled to control the disposition of
the decedent’s remains; and (3) the claims against the defendant do not constitute gross
negligence or willful acts.
¶ 22 The first element is not at issue in this appeal, as there is no dispute regarding Bradshaw’s
status as a funeral establishment. Likewise, the third element is not at issue in this case, as the
dismissed claim did not allege gross negligence or willful conduct on the part of Bradshaw.
¶ 23 C. Section 45 Does Not Require Reasonable Reliance
¶ 24 Coley asserts that, to claim the protection of section 45 of the Remains Act, a defendant
must reasonably rely on the representations of the person claiming to be entitled to dispose of
the decedent’s remains and, likewise, that the language of section 20(b) creates a duty for a
funeral director not to rely on the instructions of a person who the funeral director knows is
charged with the murder of the decedent. Additionally, because the language of section 20(b)
is more specific, it should control over the more general language of section 45. Bradshaw
maintains that section 45’s plain language is unambiguous and does not include anything about
reliance and that, as such, Bradshaw was not required to demonstrate reasonable reliance to
claim the statute’s protections. Likewise, Bradshaw argues that Coley has stretched section
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20(b) “well-beyond any reasonable interpretation” and that nothing in section 20(b) refers to
section 45 or the liability of funeral establishments. In regard to section 20(b) being more
specific than section 45, Bradshaw argues that the sections address different subjects and that
section 45 is far more specific regarding a funeral establishment’s liability.
¶ 25 We disagree with Coley’s interpretations of sections 20(b) and 45 of the Remains Act. “It
is a cardinal rule of statutory construction that we cannot rewrite a statute, and depart from its
plain language, by reading into it exceptions, limitations or conditions not expressed by the
legislature.” People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 81 (2009). The plain language of
section 45 contains no reference to reasonable reliance, and to interpret the statute as otherwise
would be reading into it limitations that are not present in the text. Likewise, the plain language
of section 20(b) does not place any duties or obligations on the funeral director but rather
makes the relinquishment of a killer’s right to control the disposition of the remains conditional
upon the funeral director’s knowledge of the charge.
¶ 26 D. Reasonable Reliance Is Not Required to Avoid Absurd Outcomes
¶ 27 Coley argues that reading section 45 of the Remains Act as not requiring reasonable
reliance on the part of the funeral establishment would lead to absurd outcomes. It would allow
a funeral establishment to escape liability for knowingly allowing a murderer to dictate how
the remains of their victim are to be disposed or to escape liability for carrying out the
instructions of a five-year-old child. Bradshaw argues that section 45 limits a funeral
establishment’s liability for regular negligence but not for gross negligence or willful and
wanton conduct, such as knowingly relying on a false representation.
¶ 28 While it is true that statutes should be interpreted to avoid absurd, unreasonable, or unjust
results that the legislature could not have intended (Palm v. Holocker, 2018 IL 123152, ¶ 21),
we do not find that reasonable reliance is necessary to avoid an absurd result. Section 45
already takes into account the type of knowing actions described by Coley, as it protects funeral
establishments from negligent conduct, but not gross negligence or willful conduct. Willful
conduct can be either intentional or reckless. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275
(1994). Willful conduct can include a “conscious disregard for the right of another to possess
and preserve the body of [a] decedent for burial.” Rekosh v. Parks, 316 Ill. App. 3d 58, 71
(2000). As such, a funeral establishment could be held liable in the scenarios described by
Coley, since knowingly carrying out the directions of someone who is not authorized to
determine how to dispose of the decedent’s remains would constitute willful conduct outside
the protection of section 45. Indeed, Coley was able to pursue his claim for willful and wanton
interference at trial, based on the same set of facts as his negligence claim.
¶ 29 E. The Crematory Regulation Act Does Not Support Reasonable Reliance
¶ 30 Coley argues that the reasonable-reliance element of section 45 is also supported by section
20(a)(1)(N) of the Crematory Regulation Act, which states,
“The cremation authorization form, other than pre-need cremation forms, shall also
be signed by a funeral director or other representative of the funeral establishment
that obtained the cremation authorization. That individual shall merely execute the
cremation authorization form as a witness and shall not be responsible for any of
the representations made by the authorizing agent, unless the individual has actual
knowledge to the contrary.” 410 ILCS 18/20(a)(1)(N) (West 2014).
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Coley argues that the Crematory Regulation Act should be considered in pari materia with the
Remains Act. As such, Coley argues, because the Crematory Regulation Act does not allow a
funeral director to rely on representations made in a cremation authorization form that he or
she knows to be false, neither should section 45. Bradshaw argues that the Crematory
Regulation Act was not raised before the trial court and that Coley’s argument should be
deemed forfeited. Further, Bradshaw maintains that nothing in section 20 references section
45 and that section 20 applies only to witnesses to the authorization form and not funeral
establishments like Bradshaw.
¶ 31 While Coley did cite the Crematory Regulation Act in his amended complaint, he did not
raise the argument that it must be considered in pari materia with the Remains Act in his
response to Bradshaw’s motion. However, forfeiture is a doctrine of administrative
convenience, not one of jurisdiction, and the interests of maintaining a sound body of precedent
can override forfeiture. People v. Segoviano, 189 Ill. 2d 228, 243 (2000). Accordingly, we will
briefly discuss the Crematory Regulation Act. “Under the doctrine of in pari materia, two
statutes dealing with the same subject will be considered with reference to one another to give
them harmonious effect.” People v. McCarty, 223 Ill. 2d 109, 133 (2006). We agree with Coley
that section 20(a)(1)(N) of the Crematory Regulation Act and section 45 of the Remains Act
address the same subject matter. However, we disagree that reading reasonable reliance into
section 45 is necessary to harmonize the statutes. Section 20(a)(1)(N) makes a funeral director
responsible for knowingly witnessing false representations in a cremation authorization form.
Such conduct would be essentially the same as knowingly carrying out the directions of
someone who is unauthorized to control the disposition of the decedent’s remains, which, as
we discussed, would constitute willful conduct. Rekosh, 316 Ill. App. 3d at 71.
¶ 32 F. The Slayer Statute Does Not Support Reasonable Reliance
¶ 33 Coley argues that section 2-6 of the Probate Act of 1975 (755 ILCS 5/2-6 (West 2014))
(commonly known as the Slayer Statute), which bars a person who intentionally and justifiably
kills a decedent from receiving property from the decedent through inheritance laws or
otherwise, should also be considered in pari materia with section 20(b) of the Remains Act.
While the two statutes arguably address the same subject matter, i.e., a limitation on the rights
of a decedent’s killer, it is unclear what the Slayer Statute adds to our analysis or how it is in
disharmony with section 45. Coley maintains that allowing Bradshaw to claim immunity under
section 45 of the Remains Act would render the Slayer Statute and sections 5 and 20(b) of the
Remains Act meaningless. We disagree. The legislature’s decision to limit the liability of
funeral establishments for violations under certain circumstances does not render the other
statutes meaningless. Section 5 still sets forth who has priority with regard to the disposition
of a decedent’s remains, section 20(b) still revokes the rights of a decedent’s killer to control
the disposition of the remains, and the Slayer Statute still prevents a decedent’s killer from
benefitting from the decedent’s death.
¶ 34 G. Cochran Does Not Require Reasonable Reliance
¶ 35 Coley argues that the supreme court’s recognition of negligent interference with the right
to possess a corpse as a cause of action, in Cochran v. Securitas Security Services USA, Inc.,
2017 IL 121200, ¶ 24, applies to funeral homes. As such, he should be allowed to pursue his
negligence claim against Bradshaw. Bradshaw notes that it never argued that section 45 was a
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per se bar to negligence claims but, rather, that it bars negligence claims only in instances
where a funeral establishment carries out the instructions of a person representing that he or
she is entitled to control of a decedent’s remains. In Cochran, a morgue’s security staff failed
to properly tag and log the body of a deceased man and subsequently released the body to a
funeral home for cremation before an autopsy could be performed. Id. ¶¶ 3-7. We agree with
Coley that Cochran applies to funeral homes. However, we do not see how Cochran prevents
Bradshaw from claiming the protections of section 45 in the instant case. We agree with
Bradshaw that section 45 does not bar a funeral establishment from liability in all
circumstances. Indeed, were a funeral establishment to negligently mix up two bodies and send
the wrong one out for cremation, as occurred in Cochran, section 45 would not protect it.
¶ 36 H. Bradshaw Established the Necessary Facts to
Support Its Motion to Dismiss
¶ 37 Coley argues that, because the amended complaint alleges that Bradshaw knew that
Lawrence was charged with Raashanai’s murder, it was reasonable to infer that Bradshaw
knew that she had no right to control the disposition of Raashanai’s remains. As such, it could
not have reasonably relied on North’s representations since they were based on the transfer of
Lawrence’s rights to North. Coley further argues that the deposition of Richard Bradshaw
demonstrates that he knew that Lawrence was in custody for Raashanai’s murder since he
called the coroner’s office to find out. Additionally, Coley argues that the deposition testimony
shows that the coroner’s office suggested to Richard Bradshaw that he prepare something
transferring Lawrence’s rights to North and that neither Lawrence nor North suggested this
procedure. Further, it was Richard Bradshaw who gave North the Release and the
Authorization Forms to complete, demonstrating that Bradshaw was in essence making the
representations—that Lawrence and subsequently North had the right to dispose of
Raashanai’s remains—to itself. Bradshaw counters that its motion to dismiss was supported
by an affidavit establishing that, when it facilitated the cremation of Raashanai’s remains, it
was carrying out the directions of a person representing that he had the right to control the
disposition of those remains. Further, Coley failed to rebut that affidavit with a counteraffidavit
or raise before the trial court the deposition testimony in his response to the motion. As such,
Coley should be barred from raising the deposition testimony now. Bradshaw also maintains
that Coley misrepresents the deposition testimony and that, while it knew that Lawrence was
incarcerated, it did not know that Lawrence had been charged with Raashanai’s murder.
¶ 38 With regard to the deposition testimony, arguments not raised before the trial court are
forfeited on appeal. IPF Recovery Co. v. Illinois Insurance Guaranty Fund, 356 Ill. App. 3d
658, 666 (2005). Coley’s failure to raise the deposition testimony in response to Bradshaw’s
motion to dismiss forfeits the issue on appeal.
¶ 39 We now move to the substance of Bradshaw’s motion to dismiss. If the grounds for
dismissal do not appear on the face of the pleading being attacked, a section 2-619 motion to
dismiss must be supported by an affidavit. In support of its motion to dismiss, Bradshaw
submitted an affidavit by North, in which he stated that he completed and returned the signed
Release and the Authorization Forms. “When supporting affidavits have not been challenged
or contradicted by counter-affidavits or other appropriate means, the facts stated therein are
deemed admitted.” Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). However, on a section 2-
619 motion, such an affidavit may not be used to challenge the factual allegations of the
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plaintiff’s complaint, as that is the function of a motion for summary judgment under section
2-1005 of the Code (735 ILCS 5/2-1005 (West 2018)). Reynolds, 2013 IL App (4th) 120139,
¶ 34. Coley submitted no counteraffidavit, but he did allege in his complaint that Bradshaw
knew or should have known that Lawrence was charged with Raashanai’s murder.
¶ 40 Upon consideration however, North’s affidavit does not challenge the factual allegations
of Coley’s complaint, particularly the allegation that Bradshaw knew that Lawrence was
charged with murder. Rather, the affidavit established the affirmative matter that North
represented to Bradshaw that he was entitled to control the disposition of Raashanai’s remains
and that Bradshaw carried out his instructions. As such, Bradshaw established the elements
required by section 45.
¶ 41 As to Coley’s argument that the representations were not North’s because Bradshaw
instructed him to fill out the forms, he cites no case law in support of his claim, and at least
one of the forms, the cremation authorization, is required by statute. See 410 ILCS 18/20 (West
2014). Accordingly, we reject that argument.
¶ 42 I. Bradshaw Was Not Obligated to Locate Coley
¶ 43 Coley argues that count III of his amended complaint alleged three alternative theories of
negligence: (1) Bradshaw failed to obtain a proper cremation form from Coley, i.e., he did not
use reasonable efforts to locate Coley; (2) Bradshaw secured and transmitted an invalid
cremation form; and (3) Bradshaw transported and/or allowed the transportation of
Raashanai’s remains for cremation without proper authorization from Coley. Coley maintains
that, even if section 45 of the Remains Act bars recovery for Bradshaw’s transmission of an
invalid cremation form based on North’s representations, it would not preclude recovery based
on Bradshaw’s failure to make reasonable efforts to locate Coley. In support of his contention
that Bradshaw was obligated to make reasonable efforts to locate him, Coley cites section 5(5)
of the Remains Act, which states, “if one of the surviving competent parents is absent, the
remaining competent parent shall be vested with the rights and duties of this Act after
reasonable efforts have been unsuccessful in locating the absent surviving competent parent.”
755 ILCS 65/5(5) (West 2014). Coley also cites Rekosh for the proposition that “[a] funeral
home’s facilitation of a cremation that is not legally authorized, knowing that there are next of
kin who are potentially unaware of the death or the arrangements and perhaps have objections,
may reasonably be regarded as [extreme and outrageous conduct].” Rekosh, 316 Ill. App. 3d
at 66.
¶ 44 While Rekosh found that the funeral home’s facilitation of an unauthorized cremation could
constitute extreme and outrageous conduct, it is silent as to what obligation if any the funeral
home had to try to locate the next of kin. Id. As for section 5(5) of the Remains Act, it likewise
does not say who is supposed to make reasonable efforts to locate the absent parent. However,
sections 5(4) and 5(6) place the onus on the family to locate absent members. Section 5(4)
provides that “less than one-half of the surviving adult children shall be vested with the rights
and duties of this Section if they have used reasonable efforts to notify all other surviving
competent adult children of their instructions,” and section 5(6) states that “less than the
majority of surviving competent adult persons of the same degree of kindred shall be vested
with the rights and duties of this Act if those persons have used reasonable efforts to notify all
other surviving competent adult persons of the same degree of kindred of their instructions.”
755 ILCS 65/5(4), (6) (West 2014). Additionally, the Crematory Regulation Act, which uses
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the same order of priority as section 5 of the Remains Act to determine who has the right to
serve as an authorizing agent, places the obligation on the authorizing agent to make reasonable
efforts to locate persons with a superior priority right. 410 ILCS 18/15, 20(a)(1)(E) (West
2014) (“In the event there is another living person who has a superior priority right to that of
the authorizing agent, the form shall contain a representation that the authorizing agent has
made all reasonable efforts to contact that person ***.”). While we do not go so far as to state
that there are no circumstances under which a funeral establishment might be obligated to make
reasonable efforts to locate a decedent’s next of kin, Coley has failed to demonstrate that under
the circumstances of this case Bradshaw was obligated to make such efforts.
¶ 45 III. CONCLUSION
¶ 46 Section 45 of the Remains Act entitled Bradshaw to immunity from Coley’s negligence
claim because Bradshaw sufficiently established that it carried out the instructions of North,
who represented that he was entitled to control the disposition of Raashanai’s remains. Coley’s
arguments that section 45 required Bradshaw to show that it reasonably relied on North’s
instructions are inconsistent with the statute’s plain language. Accordingly, the judgment of
the circuit court of Lake County is affirmed.
¶ 47 Affirmed.
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