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Coon v. Southwestern Vermont Medical Center

United States District Court, D. Vermont

July 16, 2014

Donald J. Coon, Plaintiff,
Southwestern Vermont Medical Center, Shea Family Funeral Homes, Lon McClintock, Esq., Defendants.

OPINION AND ORDER (Docs. 105, 116)

JOHN M. CONROY, Magistrate Judge.

On June 25, 2013, Plaintiff Donald J. Coon, proceeding pro se, commenced this action against several Defendants, including Defendant Shea Family Funeral Homes ("Shea"). Mr. Coon's claims stem from the death of his mother, Joan Marie Hunt, while Ms. Hunt was a patient at the Southwestern Vermont Medical Center ("SVMC"); from Shea's actions following Ms. Hunt's death; and from Attorney Lon McClintock's alleged breach of duties he owed to Mr. Coon during an investigation into Ms. Hunt's death. Motions to dismiss SVMC and Attorney McClintock as Defendants were granted by a prior Opinion and Order and familiarity with that Opinion and Order is presumed. ( See Doc. 72.)

The remaining claims in this matter are against Shea only. They are: (1) common-law conversion by repossession of a grave stone installed by Shea; (2) intentional infliction of emotional distress for grave desecration and the removal of the grave stone; and (3) breach of contract for overcharging for professional funeral services. Mr. Coon has filed a Motion for Summary Judgment, asserting that "no single issue is in dispute" and that he is entitled to money damages in the amount of $2.5 million as a matter of law. ( See Doc. 105-1 at 20-21.) Shea opposes the Motion, arguing that it has been prejudiced by Mr. Coon's failure to comply with his discovery obligations, and that Mr. Coon cannot meet his burden of proof for each claim. ( See Doc. 119 at 1.) Mr. Coon filed a Reply on June 4, 2014 (Doc. 127), and a "Final Respon[s]e" on June 5, 2014 (Doc. 128). All parties have consented to direct assignment to the undersigned Magistrate Judge. (Docs. 4, 10, 11, 48.) For the reasons that follow, Mr. Coon's Motion for Summary Judgment (Doc. 105) is DENIED. Mr. Coon's "Motion to Reassess" (Doc. 116) addresses one of the issues raised in the Summary Judgment Motion and is DENIED as moot.


The following facts are material to Mr. Coon's claims against Shea, and are undisputed except where noted.[1] In 2009, Mr. Coon and his mother Joan M. Hunt went to Ackley's Funeral Home in Cambridge, New York and made arrangements for their own cremations and burials. (Doc. 105-22 at 1.) It is undisputed that, on or about January 30, 2010, Ms. Hunt died while she was a patient at SVMC. Mr. Coon claims that his half-sister Joanne Becker murdered Ms. Hunt at the hospital. After Ms. Hunt's death, Mark Shea received a call from SVMC, and subsequently transported the body from the hospital to Shea's funeral home. (Doc. 119-5 at 1, ¶¶ 3-4.) Mr. Coon claims that Ms. Becker hired Shea to cremate Ms. Hunt's remains before any autopsy could be performed.

Ms. Becker completed forms to arrange for funerary services with Shea. (Doc. 119-6 at 1, ¶ 2.) She completed a "Cremation and Disposition Authorization" in which she identified herself as Ms. Hunt's daughter. (Doc. 119-5 at 1, ¶ 6.) Also in that document, Ms. Becker certified that she did not have "actual knowledge of any living person who has a superior right to act as the Authorizing Agent." (Doc. 58-5 at 1.) According to Mark Shea, "Ms. Becker was listed as the hospital contact person for the decedent, was the beneficiary of her life insurance policy, and it was my understanding that she lived with the decedent as well." (Doc. 119-5 at 1, ¶ 7.) Mr. Coon insists that Ms. Becker had no "legal right to start or mainta[i]n any contract" on behalf of Ms. Hunt or her estate. ( E.g., Doc. 127-3 at 3; see also Doc. 17 at 3 ("Joanne M Becker had and has no right to speak for our family then or now.").) Mark Shea asserts that, at the time he carried out Ms. Becker's instructions, he was "not aware that Mr. Coon existed, " or that there was any "request that the hospital perform an autopsy for the decedent." (Doc. 119-5 at 1, ¶ 5.)

Shea arranged for a cremation, a granite monument, and for a graveside service, among other things. ( See Doc. 105-2 at 2.) Specifically, Shea billed for the following items and services:

Basic Services of Director & Staff $1850.00 Graveside Service 325.00 Transfer of Remains 360.00 Service/Utility Vehicle 100.00 Casket-Pine 260.00 Urn-Arlington 425.00 Medical Examiner Fees 25.00 Crematory Charges 300.00 Clergy Honorarium 100.00 Paid Death Notices-Troy Record and Bennington Banner 477.28 Paid Death Notices-Rutland [H]erald 15.00 Death Certificates 50.00 Burial Permit Fees 5.00 Grey Granite Monument 495.28 Grave Opening & Closing 350.00 Sales Tax 29.72

( Id. ) The total charges for all of Shea's services came to $5, 167.28. ( Id. )

Ms. Becker assigned the $5, 000 in proceeds from Ms. Hunt's life insurance policy towards that bill, leaving $167.28 due. ( See Doc. 105-1 at 2; Doc. 119-5 at 2, ¶ 8; Doc. 119-6 at 1, ¶ 4.) According to Shea, the unpaid balance of $167.28 was attributable to the grave marker. (Doc. 119-5 at 2, ¶ 9; Doc. 119-6 at 1, ¶ 4.) Mark Shea believed that, because the grave marker had not been paid for in full, he still owned it. (Doc. 119-5 at 2, ¶ 9.) He says that he nevertheless permitted it to remain on Ms. Hunt's grave during the service "as a gesture of good faith." ( Id. )

It is undisputed that Mr. Coon gave Shea a check dated April 5, 2010 in the amount of $167 to cover the unpaid balance. ( See Doc. 105-3 at 1; Doc. 119-5 at 2, ¶ 10.) On April 14, 2010, Shea's bank informed Shea that the check was written on a closed account, and charged Shea additional fees. ( See Doc. 105-3 at 1; Doc. 105-18; Doc. 119-5 at 2, ¶ 12.) As a result of the bank fees, Shea increased the unpaid balance to $192. (Doc. 119-5 at 2, ¶¶ 13-14; Doc. 119-6 at 1, ¶ 4.)

Mr. Coon claims that on April 23, 2010 he sent Shea a $100 postal money order, and that on May 2, 2010 he sent a $98 money order to cover the unpaid balance. (Doc. 105-1 at 2, 20.) Mr. Coon also claims that Ms. Hunt's estate paid an additional $95 toward the outstanding balance. ( Id. at 2-3.) Shea disputes that Mr. Coon ever sent Shea money orders, asserting that he has no records of receiving them. ( See Doc. 119-6 at 2, ¶ 8.) Mark Shea states that on November 2, 2010, he told Ms. Becker that if she did not pay the remaining balance by December 1, 2010, Shea would remove the unpaid-for grave marker. (Doc. 119-5 at 2, ¶ 15; Doc. 119-6 at 1, ¶ 5.)

According to Shea, the balance remained unpaid on December 1, 2010, and within a "reasonable time" after that date, Mark Shea removed the grave marker from the Buskirk, New York cemetery. (Doc. 119-6 at 2, ¶ 6.) Mark Shea asserts that he hand-carried the marker from the grave site to his vehicle, and that he did not disturb any of the ...

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