Buyer Beware: A Haunting Commercial Market

By Jennifer Kemmet Jordan, J.D., LL.M. Candidate

Modern medical technology continues to change our traditional notions of death and dying.  In response, many commercial ventures in Texas and beyond are attempting to cash in on a few emerging trends in the funeral, memorial, and even self-preservation market. Whether you fear death and desire to live forever or just wish to memorialize your death in an unconventionally unique way, if you look around on the Internet you are sure to find a company offering services that will help you meet your desired end.

Memorial options range from turning your or a loved one’s cremated remains into a beautiful laboratory created diamond or gemstone, offered by LifeGem, http://www.lifegem.com, to having your ashes launched into outer space or to the moon with the Houston-based Celestis, http://www.celestis.com.  For the ecologically minded, Eternal Reefs, http://www.eternalreefs.com, offers a memorial in which human remains are infused into a man-made coral reef and dropped into the ocean in designated areas where the natural coral reefs have been destroyed.  Of course, for those who wish to evoke the mysticism of the Egyptian culture, or just really don’t want their body to become “food for worms,” Summum, a non-profit religious organization will mummify you in Utah and ship you back to Texas for a not so small “tax-deductible” donation funded through your purchase of a life insurance policy listing Summum as the beneficiary.  See http://www.summum.org/mummification.

Self-preservation or “Extreme Life Extension” techniques that range from the somewhat strange to the downright bizarre are offered through several Cryonic companies throughout the country, made famous most recently with the death of the baseball legend Ted Williams.  These companies offer to freeze and store your body in hope of reviving you in the future when a cure is found for whatever brought you to your present “eternal sleep state” that we commonly refer to as death.   For a less expensive alternative, some of the companies offer the “neuro” option in which you only freeze and store your head, because by the time they thaw you out medical technology will have advanced to the extent that you can simply grow a new body or pick a body for transplantation,  See http://www.merkle.com.cryo/ or  http://www.cryonics.org. This leads to the Genetic Savings and Clone out of College Station, Texas.  See http://www.savingsandclone.com.  Currently, this organization only banks the genetic material of animals for cloning purposes (mainly dogs and cats), but future plans are to bank the genetic material of endangered species and livestock, and with the advent of this type of organization, it is not too hard to envision a future human Savings and Clone.

The main thing all of these end of life planning companies have in common is that they generally offer these services to people who want to have complete control of their final disposition and these services come with a very hefty price tag.  This leads to a legal dilemma in determining who makes certain that these companies actually deliver the often pre-paid services they are offering.  In other words, does the individual estate of the now dead purchaser of these services have a claim under the Texas Deceptive Trade Practices Act (DTPA) against companies who fail to provide the services the deceased person paid for or arranged for before death.   The current answer to this question is not as simple as it may seem, as the Texas Appellate Courts are split on the issue, and the Supreme Court has not yet given a definitive answer as to the survival of DTPA damages.

In 1988, the Texas Court of Appeals in Fort Worth held that a consumer’s cause of action under the DTPA survives the death of the consumer and the executor of the consumer’s estate may properly bring the suit.  Thomes v. Porter, 761 S.W.2d 592 (Tex. App.--Fort Worth 1988, no writ).  This decision was in direct opposition to an earlier decision in 1984 where the Court of Appeals in San Antonio labeled DTPA damages as purely punitive in nature and opined that the right to recover punitive damages is a purely personal right, and  purely personal rights terminate with the death of the aggrieved party.  First National Bank of Kerrville v. Hackworth, 673 S.W.2d 218 (Tex. App.--San Antonio 1984, no writ).

Since the decision in Thomes, Texas courts have continued to battle back and forth on this issue, but only the Thomes Court looked to the legislative intent behind the enactment of the DTPA to come to its decision, lending greater strength to the argument that a consumer’s cause of action under the DTPA survives the death of the consumer.  See Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th Cir.1997); but see Mendoza v. American National Insurance Company, 932 S.W.2d 605 (Tex. App.--San Antonio 1996, no writ).
 
The policies underlying the DTPA include: encouraging litigants to bring private actions; reducing the need for public enforcement; and discouraging false, misleading, and deceptive trade practices.  In order to promote these policies, it seems only logical that if a person meets the consumer status required for standing in a DTPA action, whether that consumer is living is moot.  Under the DTPA, consumer status is achieved when a person seeks or acquires goods or services by purchase or lease, and the goods or services purchased or leased form the basis of the complaint.  Using this definition and the public policy behind the DTPA, it is only logical that a person who arranges for and purchases these end of life services and does not get what he or she paid for would hold consumer status and have a live claim under the DTPA brought properly by the executor of his or her estate.  Without DTPA protection, the practices of these strange but very profitable companies would go largely unchecked because non-consumer family members of the deceased would not meet consumer status under the DTPA to bring their own action, circumventing the deterrent effect of the DTPA on the fraudulent and deceptive practices of companies that prey on Texas residents.

With more and more of these end-of-life companies offering services everyday, it may be necessary for the Texas Supreme Court to finally make a decision as to whether a DTPA claim survives the consumer.  Until that time, before you determine how to “rest in peace,” you may want to keep in mind the old commercial saying “caveat emptor.“

02/05/03