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McHenry v. Adams9/16/1994
OPINION BY CHIEF JUSTICE HARRY L. CARRICO
This case involves a claim for damages allegedly resulting from the improper burial of the plaintiff's mother. The sole question for decision is whether the trial court erred in sustaining the defendants' pleas of the statute of limitations. Finding that the court did not err, we will affirm.
On August 9, 1990, the plaintiff, Hugh McHenry, filed a motion for judgment and, later, a second amended motion for judgment against the defendants, Mary E. Adams, trading as C. W. Edwards Funeral Home (Edwards), Angelo S. Stevens and Julia Stevens, trading as Rappahannock Vault Company (Rappahannock Vault), and Anthony S. Adams, Ambrose W. Bailey, and Cedell Brooks, Jr., employees of Edwards. Seeking compensatory damages for physical and mental injuries as well as punitive damages,
McHenry alleged that the defendants were guilty of negligence, breach of warranty, misrepresentation, and violation of the Virginia Consumer Protection Act.
In response, the defendants filed pleas of the statute of limitations which, as indicated above, the trial court sustained. We awarded McHenry this appeal.
The evidence is derived from pretrial depositions whose use is not the subject of controversy on appeal. This evidence shows that McHenry's mother died on April 15, 1988. On April 17, McHenry made arrangements with Edwards for his mother's burial. On April 19, she was buried in a casket that was enclosed in a "Citation" vault supplied by Rappahannock Vault. Several weeks after the burial, Rappahannock Vault furnished McHenry with a "VAULT PURCHASE AGREEMENT" guaranteeing the Citation vault against "damage due to penetration . . . by water from outside the vault."
On July 15, 1988, McHenry visited his mother's grave and noticed two holes "about six inches in diameter" in the ground beside the grave. He saw flies coming from one of the holes. At that time, McHenry "thought something was wrong." He became "tense" and "jittery" and began "having trouble sleeping at night." He also became depressed from seeing flies around his mother's grave.
On July 18, 1988, McHenry complained to the local health department and on July 22 "via phone" to the Virginia Department of Health Professions. The Department's "Complaint Form," on which McHenry's grievance was recorded, is an exhibit in the record. It states that
on a recent visit to the grave, [McHenry] found the grave to have sunken and flies to have gathered around the grave. [McHenry] had ordered a sealed . . . Vault, but believed that [Rappahannock Vault] did not provide the vault, provided a faulty or defective vault, or substituted a non-sealing vault.
Some time later, Angelo Stevens, one of the principals in Rappahannock Vault, visited the gravesite at the request of an Edwards employee. Stevens observed "two holes that had washed down on the side" of the grave. He "ran hand down [one of the holes] to make sure the lid was on [the vault]." He filled the
holes with dirt and reported to McHenry that "there was nothing wrong."
Still "not satisfied," McHenry arranged to have his mother's body disinterred. The disinterment took place on March 20, 1990, and it revealed that the vault leaked and that the casket contained water. Contrary to what McHenry had been led to believe by Edwards, the vault was not waterproof, but was made from porous material. The body was reinterred in a waterproof vault.
McHenry's physical and mental problems "intensified after the
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