Kendron v. SCI Funeral Services , 230 So. 3d 636 ( 2017 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
TERRY KENDRON,
Appellant,
v. Case No. 5D16-3600
SCI FUNERAL SERVICES OF FLORIDA, LLC
D/B/A WYLIE BAXLEY FUNERAL HOME,
Appellee.
________________________________/
Opinion filed December 8, 2017
Appeal from the Circuit Court
for Brevard County,
Charles J. Roberts, Judge.
David A. Baker and Mark A. Cavins, of The
Law Office of David A. Baker, P.A.,
Rockledge, for Appellant.
Ronald M. Schirtzer, of Weinberg Wheeler
Hudgins Gunn & Dial, LLC, Orlando, for
Appellee.
PER CURIAM.
This case involves the delayed discovery of a funeral home’s mishandling of
cremated remains. Lucille Kendron passed away on October 19, 1998. Soon thereafter,
her son, Terry Kendron, hired Wylie Baxley Funeral Home to handle the funeral and
cremation. Lucille’s cremains were to be laid to rest beside her late husband. In 2014,
Kendron learned via letter that this did not happen and that the funeral home still
possessed his mother’s ashes. He was told to collect Lucille’s cremains or be charged a
storage fee. Kendron later filed suit against SCI Funeral Services of Florida, LLC, d/b/a
Wylie Baxley Funeral Home, for tortious interference with human remains, intentional
infliction of emotional distress, and negligent infliction of emotional distress, claiming that
as a result of the funeral home’s actions he suffered from depression, stress, anger, and
anxiety, all of which required medical attention. However, the complaint was dismissed
with prejudice after the trial court concluded the statute of limitations had expired on
Kendron’s claims. Kendron now appeals the dismissal of his lawsuit. Concluding that
the statute of limitations barred his claim for tortious interference with human remains, we
affirm the dismissal of that claim without further discussion. However, for the following
reasons, we reverse the dismissal of Kendron’s claim for intentional infliction of emotional
distress and negligent infliction of emotional distress.1
Orders dismissing a complaint are reviewed de novo as they present a question of
law. Scovell v. Delco Oil Co., 798 So. 2d 844, 846 (Fla. 5th DCA 2001). Furthermore,
"[d]etermining when a cause of action accrues is a question of law, not fact." Bombardier
Aerospace Corp. v. Signature Flight Support Corp., 123 So. 3d 128, 130 (Fla. 5th DCA
2013). "A motion to dismiss should only be granted 'under extraordinary circumstances
where the facts in the complaint, taken as true, conclusively show that the action is barred
by the statute of limitations.'" Goodwin v. Sphatt, 114 So. 3d 1092, 1094 (Fla. 2d DCA
1 As further discussed below, the trial court should have dismissed Kendron's
negligent infliction of emotional distress claim based on Appellee's impact rule argument,
but the dismissal should have been without prejudice.
2
2013) (quoting Ambrose v. Catholic Soc. Servs., Inc., 736 So. 2d 146, 149 (Fla. 5th DCA
1999)).
A claim alleging an intentional tort or negligence is required to be brought within
four years from the time the plaintiff's cause of action accrued. § 95.11(3)(a), (o), Fla.
Stat. (2016). "A cause of action accrues when the last element constituting the cause of
action occurs." § 95.031, Fla. Stat.
The elements of a cause of action for intentional infliction of emotional distress are:
(1) the wrongdoer's conduct was intentional or reckless; (2) the conduct was outrageous;
(3) the conduct caused emotional distress; and (4) the emotional distress was severe.
Food Lion, Inc. v. Clifford, 629 So. 2d 201, 202 (Fla. 5th DCA 1993) (citing Williams v.
City of Minneola, 619 So. 2d 983, 986 (Fla. 5th DCA 1993)). The elements of negligent
infliction of emotional distress are: "(1) the plaintiff must suffer a discernable physical
injury; (2) the physical injury must be caused by the psychological trauma; (3) the plaintiff
must be involved in the event causing the negligent injury to another; and (4) the plaintiff
must have a close personal relationship to the directly injured person." LeGrande v.
Emmanuel, 889 So. 2d 991, 995 (Fla. 3d DCA 2004) (citing Zell v. Meek, 665 So. 2d
1048, 1052 (Fla. 1995)). Here, Kendron’s claim for intentional infliction of emotional
distress did not accrue until he experienced severe emotional distress. His claim for
negligent infliction of emotional distress would not accrue until he experienced a
discernible physical injury.
With that said, in order for Kendron's negligent infliction of emotional distress claim
to survive dismissal on remand, he must allege that his mental distress was "manifested
by physical injury" or he must allege that Appellee's conduct was willful or wanton.
3
Although "[t]he absence of physical impact does not bar a claim for the negligent
mishandling of a dead body under Florida law," Gonzalez v. Metro. Dade Cty. Pub. Health
Tr., 651 So. 2d 673, 675 (Fla. 1995), the allegation of mere psychic trauma is not enough
to sustain a claim for negligent infliction of emotional distress. Champion v. Gray, 478
So. 2d 17, 20 (Fla. 1985), receded from on other grounds by Zell, 665 So. 2d at 1054
(refusing to expand impact rule to purely subjective and speculative damages for psychic
trauma alone). As explained in Willis v. Gami Golden Glades, LLC, 967 So. 2d 846, 850
(Fla. 2007), if there is no physical impact to plaintiff, "the complained-of mental distress
must be 'manifested by physical injury,' the plaintiff must be 'involved' in the incident by
seeing, hearing, or arriving on the scene as the traumatizing event occurs, and the plaintiff
must suffer the complained-of mental distress and accompanying physical impairment
'within a short time' of the incident." Id. (quoting Eagle-Picher Indus., Inc. v. Cox, 481 So.
2d 517, 526 (Fla. 3d DCA 1985)); accord Zell, 665 So. 2d at 1050, 1052 (finding cause of
action for psychological trauma exists in Florida when there is "some physical impact to
a claimant" or in cases "where psychological trauma could be demonstrated to cause a
demonstrable physical injury"); Gonzalez, 651 So. 2d at 675 ("A cause of action for
emotional distress involves special damages which are inherently difficult to ascertain and
measure, hence the additional requirements of physical impact, physical injury, or
malicious conduct under Florida law."); Brady v. SCI Funeral Servs. of Fla., Inc., 948 So.
2d 976, 978 (Fla. 1st DCA 2007) ("Florida's impact rule does not apply to cases where
the tortfeasor's negligence may be characterized as willful or wanton." (citing Kirksey v.
Jernigan, 45 So. 2d 188, 189 (Fla. 1950))).
4
While we offer no opinion on whether Kendron will actually be able to prove the
elements of these causes of action, we nonetheless conclude it was error to dismiss them
based on the statute of limitations.
AFFIRMED in part, REVERSED in part, and REMANDED.
BERGER, LAMBERT and EDWARDS, concur.
5