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IN THE CIRCUIT COURT FOR BRADLEY COUNTY, TENNESSEE FOR

THE TENTH JUDICIAL DISTRICT

MARILYN KLEINFELDT MURPHY,
Executrix for the estate of DORIS
MAE TIERNEY, deceased

Plaintiff,

v.

BUCKNER-RUSH ENTERPRISES, INC.;
TRI-STATE CREMATORY, INC.;
T. RAY BRENT MARSH
PRIME SUCCESSION HOLDING, INC.
PRIME SUCCESSION, INC.; PRIME
SUCCESSION OF TENNESSEE, INC.
PRIME SUCCESSION OF ALABAMA,
INC.; PRIME SUCCESSION OF
GEORGIA, INC.;

Defendants.

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)     JURY DEMAND
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CLASS ACTION COMPLAINT

PARTIES

      1. Plaintiff Marilyn Kleinfeldt Murphy is a citizen and resident of Cleveland, Bradley County, Tennessee. She is the duly appointed Executrix of Doris Mae Tierney, deceased, who died on November 22, 2000.

      2. Defendant Buckner-Rush Enterprises, Inc. is a Tennessee corporation that does business as Buckner-Rush Funeral Homes in Cleveland, Tennessee. Buckner-Rush Enterprises, Inc., may be served through its registered agent, C T Corporation System, 530 Gay Street, Knoxville, Tennessee 37902. It is believed that there is a direct relationship, i.e., parent, subsidiary or otherwise, between Buckner-Rush Enterprises, Inc. and Prime Succession, Inc. and/or Prime Succession Holdings, Inc..

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      3. Defendant Tri-State Crematory, Inc. is a Georgia corporation with its principal place of business in Noble, Georgia. Tri-State Crematory, Inc. may be served by service on its registered agent: Tommy R. Marsh, Rt. 4, Box 1170A, LaFayette, Georgia 30728.

      4. Defendant T. Ray Brent Marsh is a citizen and resident of Lafayette, Georgia 30728. He is the manager and Secretary of Tri-State Crematory, Inc. He may be served with process at: Rt. 4, Box 1170A, LaFayette, Georgia 30728.

      5. Defendant Prime Succession Holdings, Inc., is a Delaware corporation with its principal place of business at 3940 Olympic Blvd., Suite 500 Erlanger, Kentucky 41018. Defendant Prime Succession Holdings, Inc. owns, operates or controls, directly or through subsidiary corporations, Defendants Prime Succession, Inc. and Buckner-Rush Enterprises, Inc.. Prime Succession Holdings, Inc. may be served through its agent: C T Corporation System, Kentucky Home Life Building, Louisville, Kentucky 40202.

      6. Defendant Prime Succession, Inc. is a Delaware corporation with its principal place of business at 3940 Olympic Blvd., Suite 500 Erlanger, Kentucky 41018. Defendant Prime Succession, Inc. owns, operates or controls, directly or through subsidiary corporations, Defendant Buckner-Rush Enterprises, Inc.. Defendant Prime Succession, Inc. may be served with process through its registered agent: C T Corporation System, Kentucky Home Life Building, Louisville, Kentucky 40202.

      7. Prime Succession of Tennessee, Inc. is a Delaware corporation with its principal place of business located at 3940 Olympic Blvd; Suite 500, Erlanger, Kentucky 41018. Defendant Prime Succession of Tennessee, Inc. may be served with process by service on its registered agent C T Corp. System, 530 Gay Street, Knoxville, Tennessee 37902.

      8. Defendant Prime Succession of Alabama, Inc. is an Alabama corporation with its principal place of business located at 1591 Gadsden Highway, Trussville,

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Alabama 35173. Defendant Prime Succession of Alabama, Inc. may be served with process by service through the Tennessee Secretary of State directed to: Prime Succession of Alabama, Inc., 1591 Gadsden Highway, Trussville, Alabama 35173.

      9. Defendant Prime Succession of Georgia, Inc. is a Delaware corporation with its principal place of business located at 3940 Olympic Blvd., Suite 500 Erlanger, Kentucky 41018. Defendant Prime Succession of Georgia, Inc. may be served with process by service on its registered agent: C T Corporation System, 1201 Peachtree Street, N.E., Atlanta, Georgia 30361.

FACTUAL BACKGROUND

      10. This is a class-action complaint that arises from the "depravity" of an unlicensed crematory operator, Tri-State Crematory, in Noble, Georgia that disposed of human remains (that were supposed to be properly cremated) by strewing human bodies in "vaults" and wooded areas in violation of all applicable laws and norms of human decency. The Defendants in this case include the unlicensed cremation company (Tri-State Crematory, Inc.) ("Tri-State") and its manager (Ray Brent Marsh) as well as the funeral companies (including parent corporations and affiliates) who contracted with Tri-State to cut costs and evade state laws. The suit alleges breach of contract; breach of fiduciary duty; fraud and deceit; negligent misrepresentation; intentional mishandling of human remains; negligent handling of human remains; negligence and negligence per se; conspiracy to defraud; conspiracy to mishandle remains; deceptive trade practices; and punitive damages.

      11. Defendants Prime Succession Holdings, Inc. (parent corporation), through subsidiary corporations including, inter alia, Defendants Prime Succession, Inc.; Prime Succession, of Tennessee Inc.; Prime Succession, of Georgia Inc.; Prime Succession, of Alabama Inc.; and Buckner-Rush Enterprises, Inc. owns approximately 136 funeral homes and cemeteries in 19 states and is one of the largest funeral home and cemetery

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companies in America. Prime Succession, Inc., through its subsidiaries have engaged in numerous false and deceptive trade practices, including, for example the settlement announced by the Florida Attorney General on January 3, 2001, of a $500,000 settlement to reimburse Florida consumers based upon evidence that Prime Succession substituted cheaper burial vaults for those bought and paid for in advance by consumers and persons who may have been buried in cheaper caskets than they paid for. The Florida Attorney General stated: "We discovered more than 1,200 instances in which cheaper plastic burial vaults were substituted for concrete vaults without telling customers." See Statement of Florida Attorney General, attached as Exhibit A.

      12. Plaintiff avers that Prime Succession, Inc. directly and through its subsidiaries (and parent) has engaged in a similar pattern and practice of fraud and/or deceptive practices (as occurred in Florida) in connection with the Georgia crematorium scandal by charging consumers in Tennessee and surrounding states for cremations that by law were required to be done by licensed persons and firms, but then evading the law by hiring an unlicensed (and unethical) Georgia crematorium operator (Tri-State Crematory). This shameful conduct was done solely for profit with the knowledge (direct or constructive) that Tri-State operated without a license and did not employ licensed personnel.

      13. Plaintiff avers that Defendants contracted and charged families for cremation services and then directly, or through subsidiary corporations, contracted or engaged Tri-State Crematory, a business located near Noble, Georgia to perform the cremations. The Tri-State Crematory, operated by Defendant Marsh, contracted or did business with Defendants' funeral homes, including Buckner-Rush Enterprises, Inc.'s funeral Home in Cleveland, Tennessee to cremate bodies. However, in fraudulent

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and/or illegal and unconscionable fashion, The Defendants' agent (Tri-State) literally dumped corpses into crematory storage sheds or in the woods.

      14. Plaintiff avers that Tri-State Crematory is an unlicensed facility and according to the former Walker County, Georgia coroner, a complaint (or complaints) had been filed with the State of Georgia concerning this facility. However, the complaints were not acted upon because the facility was not licensed and no state licensed funeral director was present at the facility. According to published reports, former coroner, Bill McGil, suggested the problems with the crematory and related complaints in the early 1990s that Tri-State was not licensed and did not have a state licensed funeral director on the premises. Defendants knew or should have known that this facility was not a proper and lawful agent for the disposal of human remains.

      15. Plaintiff avers that Prime Succession, Inc., through its parent, subsidiaries and affiliates, had a legal non-delegable duty to dispose of human remains through a licensed and qualified (competent) facility and further had a contractual and legal responsibility to investigate with due diligence to determine the services it was "hiring out" Tri-State Crematory were being lawfully and ethically performed. In gross and unconscionable dereliction of its contractual and legal duties, Defendants wholly failed to investigate the practices of the Tri-State Crematory and failed to assure that the contracted for services were being provided. Defendants were on notice of complaints against Tri-State Crematory and were also on notice of the unlicensed nature of this facility. Defendants were further on notice of the extremely low rates being charged by Tri-State Crematory which should have made them aware of questionable business practices.

      16. On November 22, 2000, Doris Tierney died. She had purchased a burial/cremation policy with Buckner-Rush Enterprises in Cleveland, Tennessee which provided certain contractual benefits including, as her wishes dictated, cremation. Buckner-Rush Enterprises policies concerning the burial policy and cremation were

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directed, controlled and dominated by its national parents and/or affiliates including Prime Succession Holdings, Inc. and Prime Succession, Inc..

      17. Plaintiffs allege that because there was fraud and/or misrepresentation and recklessness, that this is an appropriate case to pierce the corporate veil or hold parent and affiliate corporations liable under theories of alter-ego, domination, control, agency by estoppel, fraud, misrepresentation and unconscionability. It was at all times represented to Doris Mae Tierney and her family that she would be cremated in a respectful and ethical manner in accordance with state laws. In fact, her body was not cremated and, as recent news events have detailed, numerous unburied bodies have been found at the site of the Tri-State Crematory in Northwest Georgia. The Governor of Georgia has declared Walker County a disaster area and has accused the crematory operator of "depravity."

      18. T.C.A. 62-5-101, et seq. establishes rules and regulations for funeral directors and embalmers. Under Tennessee law it is an absolute requirement to safeguard life, safety and health that only properly qualified and licensed persons can engage in the disposal of human remains. See T.C.A. 62-5-303 and 62-5-101(3)(A). Similar laws exist in other southeastern states. Licensing requirements are detailed under Tennessee law and include requirements for continuing education and ethics. See Rules of the Tennessee Board of Funeral Directors and Embalmers, Ch. 0660-10. It is specifically prohibited that a person who is not duly registered and licensed as a funeral director cannot engage in funeral directing ( or embalming. See T.C.A. 62-5-309. It is further required that no employee or member of any firm or corporation shall engage in the care, preparation, disposal or burial of dead human bodies unless the employer member is a licensed funeral director. See T.C.A. 62-5-313 ("Requirements for Operation."). Similar requirements exist in other states. Under Tennessee law there are requirements that the license issued to a funeral establishment be for a period of two years, and is not transferrable or assignable. T.C.A. 62-5-315. Grounds for the

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suspension, denial or revocation of a license under T.C.A. 62-5-317(5) include if an application or holder of a funeral license "knowingly permits an unlicensed person to engage in the profession or business of funeral director or embalming under the applicant's or holders supervision." Under Tennessee law funeral directing includes the "practice of preparing human bodies for burial by any means" including "the disposition of dead human bodies." T.C.A. 62-5-101(3)(A)(I). T.C.A. 62-5-317(b)(1) also prohibits misrepresentation or fraud in the conduct of the business of the funeral establishment. T.C.A. 62-5-504 also provides detailed rules and duties on the operators of crematory facilities. See T.C.A. 62-5-504, et seq., including 62-5-507. Tennessee law requires that no operator of a crematory facility shall fail to cremate in its entirety with the body, the casket or container. Plaintiff avers Defendants violated these statutory provisions are therefore committed negligence per se.

      19. These elaborate requirements under state laws exist to ensure that unlicensed and unqualified persons who may not be ethical will not be permitted to dispose of human bodies. It was the duty of the Defendant funeral homes to ensure complete and lawful compliance. Instead, the Defendants chose to profit and look the other way (or not look at all).

      20. In dereliction of these duties, Defendants wholly failed to cremate the body of Doris Mae Tierney. Defendants (through Buckner-Rush) contracted with, or caused, Tri-State Crematory to accept bodies for cremation. This was despite the fact that this facility was unlicensed and made no effort to comply with state law concerning the licensing of facilities to dispose of human bodies. This fact was known or should have been known to all Defendants at all times. Defendants sent bodies across state lines (passing numerous licensed crematory facilities) in a shameless effort to place profit and money above solemn, statutory, contractual, and ethical duties to properly dispose of the remains of loved ones in a solemn and sanctified manner by cremation. Defendants acted recklessly and/or with fraud by selling burial and

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cremation policies and obtaining fees for cremation with no, or inadequate, assurance that cremation would be carried out in accordance with the controlling laws.

CLASS ACTION ALLEGATIONS

      21. This action is properly maintainable as a plaintiffs' class action under Rule 23 of the Tennessee Rules of Civil Procedure. The Class is a nationwide class of all "victims of the Tri-State Crematory" which is defined as all consumers of Defendants' cremation services consisting of all statutory beneficiaries under state survival statutes or other laws pertaining to cremation and intestate succession of property for decedents (including all surviving spouses, surviving children and surviving parents) see e,g,, T.C.A. 62-5-501. The Class includes all such "beneficiaries" for all deceased persons who purchased or were covered by Defendants' burial/cremation contracts and all such "beneficiaries" for all deceased persons whose families purchased cremation services at Defendants' funeral homes and/or cemeteries. Although funeral homes other than the Prime Succession homes may be involved, at this time Plaintiff seeks to represent only those families and victims whose cremations were arranged by the Prime Succession defendants in this action. This would broadly include the families of all persons whose bodies were contracted to be cremated by Defendants but were not properly cremated or properly disposed at the Tri-State Crematory. The requirements of the Tennessee Rules of Civil Procedure, Rule 23(A) and Rule 23(B) are satisfied.

      22. The class is so numerous that joinder of all members is impracticable. The numbers of class members is unknown to the Plaintiff, but can be determined from the records maintained by Defendants or Tri-State Crematory. Upon information and belief, the class consists of hundreds of persons residing in Tennessee, Georgia, Alabama and other states throughout the United States.

      23. The claims of the Plaintiff are typical of the claims of the class, and the Plaintiff has no claims that are antagonistic to those of the class.

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      24. The Plaintiff will fairly and adequately represent the members of the class and has retained counsel who are competent and experienced in class actions and complex litigation and have agreed to advance the expenses of this class action lawsuit.

      25. A class action is superior to other methods for the fair and efficient adjudication of this controversy. Furthermore, although the damages suffered by many individuals members of the class may be distinct, the expense and burden of individual litigation may make it difficult, if not impossible, for all members of the class to address the wrongs done to them individually. Many class members may not be aware that claims exist against the Defendants. There will be no unusual difficulty in the management of this action as a class action.

      26. Common questions of law and fact exist and predominate over questions affecting only individual members of the class.

      27. Common questions of law and fact with respect to the class include, but are not limited to:

          1. Did Defendants breach their contract to class members or decedents by charging them for cremations that were not performed by Tri-State Crematory?

          2. Did Defendants breach their contract with class members by charging them for cremations even through Defendants knew or should have known cremations would not be performed based upon Defendants' wholesale failure of due diligence to investigate?

          3. Did Defendants breach their duty of good faith and fair dealing when they charged them for cremations and concealed from them the fact that cremations did not occur without proper assurance, verification or licensing?

          4. Did Defendants engage in false, fraudulent, or deceptive business practices detailed in state consumer protection laws?

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          5. Did Defendants fraudulently conceal or recklessly fail to disclose the egregious practices of Tri-State Crematory?

          6. Did Defendants commit negligence per se and/or recklessness per se by violations concerning funeral directors or funeral homes?

COUNT I: BREACH OF CONTRACT AGAINST ALL DEFENDANTS

      28. The allegations of paragraph 1 through 27 are incorporated as if fully set forth herein.

      29. By contracting with class members or the decedents to perform cremations and/or by selling policies of burial or cremation, Defendants breached their contract by failing to perform cremations and by negligently contracting and delegating cremation to an unlicensed, unqualified agency, Tri-State Crematory in Georgia. Defendants had a non-delegable duty and statutory duty to ensure that there was proper disposal of human remains by cremation which required a licensed facility to engage in these activities. At all times, this facility was not licensed and Defendants knew or should have known this fact and should have engaged in due diligence to determine if cremations were in fact occurring. Instead, Defendants placed profit above human health, life and safety.

      30. As a direct and proximate cause of Defendants' breaches of its contractual agreements, Plaintiff has suffered substantial damages and losses, including mental distress, pain and suffering.

COUNT II: CLAIM FOR BREACH OF FIDUCIARY DUTY AGAINST DEFENDANTS

The allegations of paragraphs 1 through 30 are incorporated as if fully set forth herein.

      31. Defendants breached their fiduciary duties to the relationship with Plaintiff and the class. As a direct and proximate result of their breaches of fiduciary duty, Plaintiff and the class have suffered substantial damages, losses and injuries.

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COUNT III: FRAUD AND/OR DECEIT

The allegations of paragraphs 1 through 32 are incorporated as if fully set forth herein.

      32. Defendants' conduct, as described above, was undertaken with fraud and deceit (and/or negligent misrepresentation as set forth below). Plaintiff and/or the class were charged for cremations which did not occur. Plaintiff and/or the class were charged with burial/cremation policies which did not provide for the services charged. Defendants concealed these facts and/or recklessly failed to determine the truth of the facts by hiring unlicensed and unqualified persons and/or firms to supposedly conduct cremations, including the Tri-State Crematory in Georgia. Defendants acted recklessly and/or with fraud or deceit and/or in reckless disregard of the interests of the Plaintiffs in the class. As a direct and proximate result of fraud and deceit and/or negligent misrepresentation Plaintiff and the class have suffered substantial damages, losses and injuries.

COUNT IV: NEGLIGENT MISREPRESENTATION

The allegations of paragraphs 1 through 32 are incorporated as if fully set forth herein.

      33. Defendants knowingly accepted money to obtain cremation and benefitted from the receipt of this payment and knew or should have known that the cremations were not occurring through Defendants reckless and/or negligent acts. Based upon the foregoing Defendants are liable to the Plaintiff and the class for negligent misrepresentation. As a direct and proximate result of negligent misrepresentation, Plaintiff and the class have suffered substantial damages, losses and injuries.

COUNTS V & VI: INTENTIONAL AND NEGLIGENT MISHANDLING OD BODIES

The allegations of paragraphs 1 through 33 are incorporated as if fully set forth herein.

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      34. Defendants, through its local funeral homes intentionally and/or negligently mishandled corpses. Defendants knew or should have known that cremations were not being carried out by Tri-State Crematory. Defendants also contracted with Tri-State Crematory under economic terms so favorable it should have caused a reasonable person to believe that services could not be provided adequately, ethically at the rates charged. Defendants arbitrarily and capriciously failed to investigate to determine if the party with whom they were contracting Tri-State Crematory was licensed or qualified to perform cremation. As a direct and proximate result of intentionally and/or negligently mishandled corpses, Plaintiff and the class have suffered substantial damages, losses and injuries.

COUNTS VII AND VIII: NEGLIGENCE AND NEGLIGENCE PER SE

The allegations of paragraphs 1 through 34 are incorporated as if fully set forth herein.

      35. Defendants acted negligently and violated the statutes set forth above, thus invoking the doctrine of negligent per se. As a direct and proximate result of negligence and negligence per se, Plaintiff and the class have suffered substantial damages, losses and injuries.

COUNTS IX AND X: CONSPIRACY TO DEFRAUD AND CONSPIRACY TO MISHANDLE BODIES.

The allegations of paragraphs 1 through 35 are incorporated as if fully set forth herein.

      36. Defendants conspired and agreed by contract, plan or other agreement to transport bodies to Noble, Georgia to an unlicensed crematory facility under circumstances that amount to a conspiracy to defraud, misrepresent and mishandle corpses. Accordingly joint and several liability principles apply. As a direct and proximate result of these conspiracies, Plaintiff and the class have suffered substantial damages, losses and injuries.

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COUNt XI: DECEPTIVE TRADE PRACTICES

The allegations of paragraphs 1 through 36 are incorporated as if fully set forth herein.

      37. The actions of Defendants constitute deceptive and unfair trade practices within the meaning of T.C.A. 56-8-104 (1994) and 47-18-101, et seq. Defendants falsely promised cremations and the proper carrying out of burial/cremation policies yet made no, or a wholly insubstantial, effort to determine that the persons to whom the bodies were given for cremation met the statutory criteria and licensing. Accordingly, Defendants are liable under theories of deceptive trade practices.

PIERCING THE CORPORATE VEIL, ESTOPPEL; FRAUD AND NON-DELEGABLE DUTY

The allegations of paragraphs 1 through 37 are incorporated as if fully set forth herein.

      38. The local funeral home in this case, Buckner-Rush is a subsidiary corporation to a national corporation with its shareholders and owners dominating activities and business affairs of the local funeral homes, including particularly selling and marketing of cremation policies and contracting with crematory entities. Although alternative crematory facilities were available, Defendants sold services to the public and hired an incompetent contractor without due diligence. The acts and practices were dominated and controlled by the parent corporations and/or affiliates of Buckner-Rush. Accordingly because fraud and/or recklessness occurred under circumstances of domination and control, this warrants piercing the corporate veil and/or holding the parents and/or affiliate corporation Defendants in this case liable as a matter of law.

COUNT XII: PUNITIVE DAMAGES

The allegations of paragraphs 1 through 38 are incorporated as if fully set forth herein.

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      39. Defendants acted with deliberate and/or reckless disregard for the rights of the Plaintiff and class. These acts were willful and/or wanton or reckless for their own self-interest. Defendants should be held liable for punitive damages.

DEMAND FOR JURY TRIAL

      40. A jury trial is demanded.

PRAYER FOR RELIEF

      WHEREFORE, Plaintiff, individually and on behalf of the class, requests the following relief:

      1. Certifying this action as a class action of affected persons throughout the United States.

      2. Awarding the Plaintiff and the Class damages in the amount of One Hundred Million Dollars ($100,000,000.00).

      3. Granting the Plaintiff and the Class attorneys' fees and interest, including pre-judgment interest, post-judgment interest, costs and disbursements herein.

      4. Awarding Plaintiff and the Class treble damages based upon the Defendants' willful and intentional disregard of their rights, or in the alternative, punitive damages based upon the Defendants' willful, intention and/or reckless disregard for their rights.

      5. Granting such other relief that the Court may direct.




Respectfully Submitted,

DAVID RANDOLPH SMITH & ASSOCIATES


By: _______________________________________
David Randolph Smith #011905
Edmund J. Schmidt, III #021313
J. Allen Murphy, Jr. #019146
1910 Acklen Avenue
Hillsboro Village
Nashville, Tennessee 37212
(615) 742-1775
web: http://www.drslawfirm.com
e-mail: dsmith@drslawfirm.com

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COST BOND

      We are surety for the costs in this cause not to exceed One Thousand Dollars ($1,000).

     
____________________________________
David Randolph Smith
DAVID RANDOLPH SMITH & ASSOCIATES






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