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Vol. 8 - Issue 6
July 10, 2019


Trigger Of Coverage And Funeral Home Malpractice


The question whether “bodily injury” or “property damage” has occurred during the policy period, to implicate a general liability policy, is usually not hard to figure out.  There should be plenty of evidence of the date that the limb went missing of the building went kaboom.  Of course, that wasn’t the case with bodily injury caused by asbestos and property damage caused by hazardous waste and other injuries that lay dormant, for a period of time, before being discovered.  For those situations, years of litigation ensued, culminating in the continuous trigger or other methods for figuring it out.  Since the advent of the continuous trigger, efforts have been made to apply it to all manner of injuries or damages.

At issue in Zack v. Clock Funeral Home, No. 343732 (Mich. Ct. App. June 11, 2019) was trigger of coverage for a unique scenario.  An infant passed away in February 2015.  The parents arranged for funeral and burial services with Clock Funeral Home of White Lake.  The visitation and funeral services were conducted on February 16 and 17, 2015.  Burial was delayed due to a required autopsy.  The parents requested that their son be cremated and that his ashes be buried in an urn they provided to Clock.  Clock conducted a burial service interring the urn on April 18, 2015.  In January 2016, an employee of the funeral home discovered a box labeled as the ashes of the infant.  The employee delivered the box to the parents.  During an investigation, in March 2016, their son’s grave was exhumed and the urn was empty.

At the time of the funeral and burial, the funeral home was an insured under a commercial general liability policy issued by Westfield.  The policy included an additional coverage part for acts and omissions arising out of services rendered or the failure to render services as a funeral director.  The policy was cancelled on December 19, 2015 for nonpayment of premium.

At issue was the potential for coverage under the policy for a claim against the funeral home.  The overarching question was whether “bodily injury” took place during the policy period, as required to trigger coverage.
To summarize, the policy was on the risk at the time of the funeral and burial.  However, it was no longer on the risk at the time that the grave was exhumed. 

The court concluded that “bodily injury” did not take place during the policy period: “Because plaintiffs  did not learn that their son’s ashes were not, in fact, buried until after the policy coverage had ended, they did not suffer their emotional, mental and physical injuries resulting from that negligent act until after the policy had terminated.” 

The court rejected the argument that the policy was triggered on the basis that, it was during the policy period, that the empty urn was buried.  They argued that “interference with their right to control the final disposition of their son’s remains” was the injury, and such injury was incurred when the empty urn was buried.  “However,” the court held that “the interference was simply the wrongful action Clock engaged in that resulted in injuries to plaintiffs.”

Not surprisingly, as often happens in cases involving trigger of coverage, the court turned to its environmental case law on the subject, to see what that has to say about it.  The court addressed the Michigan Supreme Court’s 1998 decision in Gelman Sciences, in which the court addressed four theories for when gradual property damage, caused by pollution, takes place.

Gelman Sciences did not help the parents here in their pursuit of coverage: “Our Supreme Court held that the policy language concerning when coverage was triggered was unambiguous and, according to the policies’ explicit terms, actual injury must occur during the time the policy is in effect in order to be indemnifiable, i.e., the policies dictate an injury-in-fact approach.  The Gelman Court acknowledged that determining the precise timing of actual property damage is sometime difficult and while it appreciate[s] the difficulty of proof in this regard, this difficulty cannot justify redrafting unambiguous policy terms in the guise of judicial interpretation.”

Even outside of traditional latent injuries, courts sometimes use trigger theories to conclude that “bodily injury” or “property damage” took place during a certain policy period.  The court in Clock did not.  And I don’t think the case was even a close call.  I’m surprised it got this far.  But it demonstrates efforts made to make the timing of “bodily injury” and “property damage” malleable to fit a necessary calendar.         

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