Published in the October 2021 Issue of Memento Mori
By Brennan Regan
One day, you receive a call from the local crematory. There was a mix-up and you’re now faced with having to contact several of your families with the bad news—that some of them were given the wrong cremains.
In many industries, mistakes can have a minimal impact on the client. But for cemeteries and crematories, mistakes such as a damaged coffin, mismarked grave, or cremains tagged with someone else’s name can be critical.
For a grieving family mourning a loved one, these errors are anything but acceptable. They can lead to claims of emotional distress or mental anguish and trigger a costly lawsuit that may find the cemetery or crematory liable.
These situations may be the fault of the cemetery, a clerical error, or even a family dispute, but there are ways that cemeteries and crematories can transfer some of this risk and protect themselves when claims arise.
What Leads to Claims
The most frequent errors that lead to liability claims against cemeteries include mismarked graves, loved ones interred in incorrect plots, and damage to personal items such as monuments, caskets, and urns.
In cases of burial error, time that is spent locating the correct body, re-digging the grave, or replacing lost personal items—not to mention the trauma of learning of the error involving a deceased loved one—lengthens the burial and mourning process, which may lead families to claim emotional distress or loss of sepulcher.
Where crematories are concerned, the most common claim is a mix-up involving the cremains when they are returned to the family. This is typically discovered when loved ones find the wrong name on the cremains’ tag. In some cases, it may be discovered when they open the cremains container to find something (gold or silver fillings from a tooth, artificial joints, etc.) that the deceased did not have. The emotional distress caused by such a discovery can easily lead to a claim.
Recently in the COVID-19 era, we saw many claims of loss of sepulcher filed against deathcare organizations. Families felt their grieving process had been delayed, prolonged, or interrupted as a result of the backlog in cremations, and restrictions placed on graveside services due to COVID-19 social distancing guidelines. While there is universal hope that the worst of the pandemic is behind us, cemeteries and crematories must be prepared for the possibility of a resurgence.
At a minimum, having a plan in place for potential, future, large-scale health crises is clearly warranted. Work with an attorney to ensure you have proper documentation to provide to clients during your first encounter with them to increase awareness of any known or potential health or safety restrictions that might affect their loved one’s service. This documentation should be signed by all parties and kept on file with a copy provided to the client.
Manage Your Risk
Not only are these types of claims costly and distracting, they can damage your reputation as well as negatively impact your ability to secure reasonably priced insurance coverage.
The best way to prevent these types of claims is to focus on the core aspects of the business.
A thorough knowledge of regulations, ordinances, and laws that govern the industry at the state and local level is essential. Most importantly, modern operators of cemeteries and crematories should have both the technology and operational organization necessary to document and record not only client information, but also the required paperwork and authorizations needed for a burial or interment.
Local regulations and ordinances can change, so it is suggested that you maintain memberships in local, state, and national associations that serve the deathcare industry. This will be helpful in staying abreast of the latest regulations. It can also help to stay in frequent contact and communication with state regulators and your local, elected officials. Even participation in your local Chamber of Commerce can help keep you apprised of any pending legislative or regulatory proposals that might impact your business.
Increase Your Use of Technology
Recently, the industry has experienced an influx of mapping technology that allows cemeteries to utilize geofencing to create an accurate map of their properties. These technologies have helped create efficient systems that track information, such as where graves are located, who is buried there, how many graves are in each plot, and how many available plots there are on the grounds.
While effective and popular, this technology can be cost prohibitive for smaller cemeteries and crematories. If structured and maintained properly, the traditional method of using physical paper files or a “library card” system can be just as efficient and successful. An organizational system with well-documented accounts not only ensures better operation of the business, but it also goes a long way in building a strong defense in the case of a lawsuit.
Remember, whatever tracking systems you use to document and record grave information are only as effective as the training your workers receive in using them. Failure to properly train or revisit training among workers can put the value of these systems in jeopardy.
Move Quickly, Document Everything
When something goes wrong in the interment process, the first minutes and hours following discovery of the problem are important. Having a process in place to quickly address the matter with the affected family can mitigate the possibility of legal action. Every employee should be trained to recognize the types of errors noted earlier, as well as understand the reporting procedures to follow if an error is discovered.
When it comes to reporting professional liability claims, or situations that may give rise to a claim, it’s important that you contact your insurance broker or agent immediately upon learning of an error or potential claim scenario. You should also document the incident with as many witnesses as possible as soon as you become aware of the issue.
Make Sure You’re Covered
General Liability insurance coverage is essential for all businesses and cemeteries—and crematories are no exception. General Liability will protect you from claims of bodily injury or property damage that may be the result of your negligence. For cemeteries and crematories, this type of coverage is most often used to address slip and fall claims.
However, while General Liability covers claims for bodily injury and property damage, it typically does not provide coverage for claims of mental anguish, emotional distress, or loss of sepulcher.
This is why cemeteries and crematories should have Professional Liability coverage. Professional Liability protects you, your organization, and your employees from claims related to the operations of the cemetery or crematory, and for errors made while providing the services you offer. Professional Liability also may cover damages to caskets, urns, and any other property damage that might occur in the normal operation of your business.
When purchasing Professional Liability coverage, remember these tips:
- Make sure it’s not just an off-the-shelf policy; it should have language that is specific to cemetery and crematory risks.
- The policy should have its own limits, rather than sharing limits with your General Liability coverage. Slip and fall claims covered under General Liability can quickly eat away at a $1 million or $2 million policy limit and leave you without the protection you need in the case of a mental anguish or sepulcher claim.
Think of it this way: Every burial or cremation ever done is a potential claim. Whether these services were provided last week, last year, or even decades ago, a claim might arise if a family member or loved one—or even an employee—finds that a mistake was made.
You can protect your organization from costly litigation by taking the steps outlined here to mitigate such claims, and by having the right insurance coverage in place if a claim does arise.
You should speak with your insurance agent or broker to ensure you have the correct coverage and liability limits to ensure that the same care and compassion you provide to your clients can be provided to you and your employees in a worst-case scenario.
Brennan Regan is an agency principal at the Regan Agency, which offers cemetery and crematory insurance coverage through Brownyard Group’s Memorialpro® insurance program. He can be contacted at email@example.com.