On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1646-02.
Before Judges Axelrad, R. B. Coleman and Holston, Jr.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2005
Plaintiffs, Leslie Ann Cole (Leslie Ann), Robert D. Camac (Robert D.), Clinton W. Camac (Clinton), Michael F. Camac (Michael F.), Eugene Camac (Eugene), and Gail Camac Foraker (Gail), appeal the January 30, 2004 order granting summary judgment by which the trial court dismissed plaintiffs' Consumer Fraud Act (CFA) claims against defendant, Laughrey Funeral Home (Laughrey), and dismissed plaintiffs' intentional and negligent infliction of emotional distress claims against defendants, Tracy Stranahan (Tracy) and Michael Stranahan (Michael).*fn1 Plaintiffs also appeal the March 12, 2004 order denying plaintiffs' motion for reconsideration.*fn2
On December 6, 2001, Robert W. Camac (Robert W.) and his wife, Maryann Camac (Maryann), were shot and killed in their home by their stepson, Wade Russell. Robert W. is survived by the natural children of his first marriage, Leslie Ann, Clinton, Robert D. and Michael F. He is also survived by his brother, Eugene, his sister, Gail, and a cousin, Joyce. Additionally, Robert W. also left surviving his adopted daughter, Tracy, who he raised since age six. Tracy was the natural daughter of his wife, Maryann. Tracy is married to Michael.
Tracy, as the closest next of kin of Robert W. and the only next of kin of Maryann except for Wade Russell, initiated steps for the funeral of her parents. Tracy retained the services of Laughrey and signed a contract with Laughrey for the funerals of both Robert W. and Maryann. The contract with Laughrey included arrangements for the viewing and funeral services for both of Tracy's parents. Plaintiffs were not involved in making arrangements for the funeral, the funeral services or making decisions with respect to whether or not a viewing of the decedents would be held. Without plaintiffs having any contact with the funeral home, Tracy and Michael made all arrangements with respect to the funeral, the services, and whether a viewing would take place.
Robert W. was clearly not close with the children from his first marriage: Robert D. had not seen his father in thirty years; forty-one year old Clinton had not seen him since he was four or five years old; forty-four year old Leslie Ann had not seen her father since she was sixteen; and Michael F. saw his father once or twice a year and had only seen him about four times in the three years before his death. Decedent's brother and sister were not close enough to him to know he had adopted Tracy. Tracy lived with her father and her mother from the time she was six years old.
Plaintiffs allege that Tracy dictated and controlled the events surrounding the funeral and viewing and arranged for, with the consent and assistance of Laughrey, a private viewing for Tracy and her side of the family, excluding plaintiffs from participating in a viewing of Robert W. and excluding plaintiffs generally in the funeral arrangements.
Tracy consulted with Leslie Ann in an attempt to compromise on the funeral and burial arrangements. It was decided that the funeral service would be conducted by Laughrey but that the burial of Robert W. would take place in Delaware at Gracelawn Cemetery, the cemetery preferred by Leslie Ann and her siblings.
Prior to the funeral, Joyce contacted Leslie Ann and asked if Reverend Jack Cordell could take part in the service. Tracy agreed to this and Reverend Cordell did, in fact, participate in the service at Joyce's request. Leslie Ann also provided Michael with information in order to help him prepare the obituary.
At the funeral, Michael asked Clinton and Leslie Ann if they would like to stand next to their father's casket. Michael asked Eugene if he or any of Robert W.'s sons would like to be pallbearers. Eugene and his son, Kevin, were pallbearers.
Tracy and Michael intended to have a closed-casket funeral because of John Laughrey's comments to them concerning the condition of her parents' remains as a result of their murders and autopsies. However, late on Wednesday evening, December 12, 2001, while at the funeral home delivering the clothes that Robert W. and Maryann were to be buried in and after learning that her parents' bodies were in the very next room, Tracy decided that she wanted to view them. John Laughrey tried to dissuade Tracy from viewing her parents because of the condition of their bodies, but Tracy nevertheless decided to have a viewing and scheduled it for the following evening, the night before the funeral.
Tracy wanted an intimate viewing, and the people who she and Michael invited were Tracy's grandparents, James and Dee McGoldrick; her aunt and uncle, Karen and Kevin McGoldrick; and Michael's mother, Dee Stranahan. However, without either Michael's or Tracy's consent, Tracy's grandparents invited additional people who attended the private viewing.
Plaintiffs never requested a viewing of Robert W., and neither Tracy, Michael, nor anyone at Laughrey told any of them that they could not have a viewing. Leslie Ann testified that she never asked Tracy or Michael for a viewing between December 6 and December 14, 2001. Eugene indicated that he never had a conversation with Tracy or Michael concerning a viewing and that no one stated that a viewing could not be had. Joyce stated that she never asked the Stranahans if it would be permissible for the Camac side of the family to have a viewing. Gail testified that she never asked about a viewing nor did anyone tell her that she could not have one. Michael F. testified that he never requested a viewing of his father and that no one said that he could not have a viewing. John Laughrey testified that if plaintiffs had requested a viewing of Robert W., he would have permitted them to view him. Although there was no public viewing of the decedents' bodies, there was a viewing in the sense of a gathering to pay respects at the funeral home prior to the funeral service.
Plaintiffs allege that Laughrey committed a violation of the CFA based on its affirmative misrepresentations to them that there would be a viewing and in its intentional failure to inform them of the private viewing held for the Stranahan side of the family. Plaintiffs claim that Laughrey's affirmative misrepresentations falsely misled and deceived them into believing that an open viewing of their father/brother would take place by virtue of the obituary notices in several newspapers advising that there would be a public viewing between 10:00 a.m. and 1:00 p.m. on December 14, 2001. Later, plaintiffs claim they were misled by John Laughrey informing them that their father's/brother's body was badly disfigured and by John Laughrey advising them against a viewing.
Plaintiffs point to the statement of Julia Russell Wright (Julia), Wade Russell's former wife, who attended the private viewing. Julia indicated that the bodies were not too disfigured to have allowed a viewing and that the decedents appeared to be presentable. Clinton testified that John Laughrey advised him when he telephoned the funeral home on December 11, 2001 that there would be a public viewing from 10:00 a.m. to 1:00 p.m. on December 14, 2001 and that he should arrive at 9:30 a.m.
The intentional misrepresentation constituting an act of omission was in Laughrey's failure to advise any of the plaintiffs about the private viewing held for the benefit of Tracy and Michael and that they, too, would be entitled to a private viewing of Robert W. Plaintiffs, therefore, allege that the misrepresentations by Laughrey contained in the obituary notices and to Clinton by telephone that a viewing would be held, the misrepresentations to family members that because of the condition of the decedents' bodies that no public viewing should be held, and the concealment from them of the separate private viewing for the Stranahans constituted unconscionable and deceitful commercial practices in violation of the CFA.
Plaintiffs allege that the Stranahans either negligently or intentionally misled or deceived them in believing that no viewing was possible because of their father's disfigured body from the gunshot wound and autopsy. They contend Tracy and Michael are, thus, liable based on legal theories of intentional infliction of emotional distress and negligent infliction of emotional distress because plaintiffs were deprived of the opportunity to attend a viewing of their father/brother.
Plaintiffs allege that the conduct of the Stranahans in misrepresenting that a viewing would be held and then concealing that a private viewing was held was done intentionally to cause them emotional distress and to demean their relationship with their father/brother. Plaintiffs seek damages for ...