Mary M. Rowland
Mary M. Rowland

A woman got the go-ahead to pursue a lawsuit accusing an Illinois funeral home of losing her husband’s ashes.

In a written opinion Monday, U.S. District Judge Mary M. Rowland declined to dismiss two of the three counts in Kathleen Totty’s suit against Anderson Funeral Home Ltd.

Rowland held Totty has adequately stated claims for negligence and a violation of the Illinois Crematory Regulation Act.

But she held Totty’s allegations were not detailed enough to state a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act.

Rowland gave Totty 30 days to amend that count.

The case is in federal court under diversity jurisdiction. Totty lives in LaPorte, Ind., and Anderson Funeral is headquartered in DeKalb.

Totty’s husband of more than 20 years, Randal L. Lutz, died in October 2013.

Totty arranged to have Anderson Funeral cremate her husband’s body and then place the ashes in an urn.

A few days after the funeral, according to Totty, she called Anderson Funeral to ask if she could pick up her husband’s ashes.

An employee first told her someone had already picked up the ashes and then, after she questioned that statement, said the urn with the ashes would be delivered to her, Totty alleges.

The urn was delivered within a few day, she says, and she kept it for four years in the house in Malta she and her husband had shared.

After she remarried, she decided to sell the house and honor her late husband’s wish that his ashes be scattered on the property, Totty says.

But when she and her current husband went to the property in August 2017, Totty alleges, she opened the urn and discovered it contained no ashes.

She spoke to Anderson Funeral’s president, Richard N. Anderson, who denied the funeral home had lost her late husband’s ashes and maintained he himself had delivered them to her, Totty alleges.

Totty filed her suit against Anderson Funeral in June 2019.

“To this day, the fact that Kay does not know where Randy’s ashes are haunts her,” the suit says. “After the pain of Randy’s cancer, and the trauma of his sudden death, Kay still does not have closure because [d]efendant did not deliver Randy’s ashes to Kay.”

Anderson filed a motion in August 2019 to dismiss the suit for failure to state a claim.

In her opinion, Rowland held Totty has stated a case under the Crematory Act.

Crematories are barred from turning over “more or less cremated remains than were removed from the cremation chamber,” Rowland wrote, quoting the act.

Also, she wrote, quoting the act, crematories may not knowingly represent that “a temporary container or urn contains the cremated remains of a specific decedent when it does not.”

Rowland rejected the argument that Totty did not have the right to file her suit under the Crematory Act.

The 2nd District Appellate Court has held the Crematory Act “clearly and unambiguously creates a private right of action,” Rowland wrote, citing Rekosh v. Parks, 735 N.E.2d 765 (2000).

She declined to rule on Anderson Funeral’s argument that it is not liable for the purported loss of the ashes because Totty signed an authorization stating she had received them.

Totty counters that Anderson Funeral is liable under Section 40(c) of the Crematory Act, which states: “After delivery, the crematory authority shall be discharged from any legal obligation or liability concerning the cremated remains.”

And Totty maintains her husband’s ashes were never delivered to her.

Rowland agreed with Totty that it is too early in the litigation to determine if Anderson Funeral is protected by Section 40(c).

In declining to dismiss the negligence claim, Rowland rejected the argument that Illinois law requires Totty to allege Anderson Funeral acted with gross negligence or that it knew her husband’s ashes were not in the urn.

Totty “need only plead facts showing ordinary negligence, and she is not required to plead gross negligence or a certain level of knowledge by Anderson Funeral,” Rowland wrote, citing Cochran v. Securitas Security Services USA, 93 N.E.3d 493 (2017).

Totty has done that, Rowland wrote, by alleging Anderson Funeral owed her a duty of care and breached that duty by failing to deliver her late husband’s cremated remains to her, causing her severe emotional distress.

In dismissing the Consumer Fraud Act claim, Rowland held Totty had not adequately alleged Anderson Funeral engaged in deceptive acts.

Totty’s allegations are merely “dressed up" breach-of-contract claims, Rowland wrote.

The case is Kathleen Totty v. Anderson Funeral Home Ltd., No. 19 C 3781.

The lead attorneys for Totty are Adrian Mendoza Jr. and Thomas G. Oddo, both of Lillig & Thorsness Ltd. in Oak Brook. They could not be reached for comment.

The lead attorney for Anderson is Lori Ann Vanderlaan of Best, Vanderlaan & Harrington.

Vanderlaan said the firm has a policy of not commenting on pending litigation.