Now We Know Why The Grass Never Grew

from Kiplinger Magazine - May 1999

"Now We Know Why the Grass Never Grew ... They Never Stopped Digging"

By Kristen Davis

Probing beneath the peaceful surface of the nation's cemeteries unearths disturbing tales of grave mix-ups and vanishing trust funds.

"We called it the dust bowl," says Toni Moore of the cemetery where her family has buried more than 30 of its kin since 1954. "For the past 15 years, they never seemed to be able to grow grass."

Other maintenance problems at Paradise Memorial Park, in Santa Fe Springs, Cal., planted questions in Moore's mind. Why was there fresh dirt near the family's burial site? Why had the flower cups disappeared? Moore was told that the ground sometimes sinks and needs to be leveled. "My gut told me something was going on but I dismissed it, knowing that there were laws and that these people are regulated," she says.

The horrifying truth began to surface on a TV newscast in June 1995. Inspectors had visited the cemetery and found a dirt pile 7 feet high and 50 feet wide full of skeletal remains. It was estimated that Paradise had reached capacity a decade earlier, and that some 3,000 burials had taken place in occupied graves. "We found out that many of our relatives had been dug up, and many of our family graves were recycled graves that someone else owned," Moore says. Bodies had also been stacked as many as ten deep in a single plot, some in crushed caskets, some in no casket at all. "Now we know why the grass never grew," Moore says. "They never stopped digging."

The last place you'd expect to find such careless, negligent and outright deceitful practices is the cemetery where you lay your loved ones to rest in peace. But when you combine large sums of money with minimal oversight, abuses are bound to creep in. And in the cemetery business, consumer protections are few.

After interviewing regulators and searching court documents in a dozen states, Kiplinger's turned up a wide range of grave troubles: recycled burial plots, appalling lapses in record keeping, and pilfering of trust funds set aside for cemetery maintenance or to provide goods and services that had been paid for in advance.

At the root of many of these problems is a shortage of burial space, which threatens the livelihood of cemetery owners. Meanwhile, corporate-owned cemeteries have begun aggressively marketing the advance purchase of plots, swelling cemetery trust funds to nearly $20 billion nationwide. But few states are keeping close watch over the custodians of all that money. In fact, cemeteries are virtually unregulated in some states. And consumers, perhaps intimidated by the hushed aura of death, seldom complain--even when abuses are ghastly.

Problems have mostly come to light through local news reports. Only a small percentage of the nation's more than 2,500 cemeteries are implicated, but the situation is serious enough to have attracted the attention of Congress. The General Accounting Office is preparing a report on cemetery regulation, which will be a springboard for Senate hearings expected in the fall.

"In the back of your mind, you think, Where are they burying all these people?" Moore recalls. But asking such a question seems disrespectful, "and you don't say anything."

But it's a question that may need to be asked more frequently in the coming years -- especially in metropolitan areas on the East Coast, where many cemeteries are "landlocked" and nearing capacity. Meanwhile, the annual number of deaths is rising. In 1998 there were 2.3 million deaths in the U.S.; the Census Bureau anticipates 3.2 million a year by 2028.

Cemeteries have two ethical choices when they run out of space: stop selling graves (and suffer a sharp loss of income) or annex adjoining space, if it is available. But some have resorted to reusing occupied grave sites, usually in parts of a cemetery that are older or more remote.

At Eastern Cemetery, in Louisville, Ky., "overburying" started as long ago as the late 1850s, says Philip DiBlasi, a University of Louisville archeologist who spent years investigating the site after abuses came to light in 1989. "The cemetery had been used 7.2 times over," DiBlasi says. "Of course, anything over 1.0 is illegal."

In all, he says, there were more than 80,000 burials in a space that can accommodate 11,000. DiBlasi also found routine recycling of plots at Eastern's sister properties, Greenwood and Schardein cemeteries. All three were owned by the now-defunct Louisville Crematory and Cemeteries Corp. The company's board of directors resigned, and criminal charges were brought against three of its members (but were later dismissed). Numerous civil lawsuits remain tangled up in court.

Elsewhere, cemetery owners who have run out of space have resorted to burying bodies under roadways and sidewalks and arbitrarily "reclaiming" plots that have been purchased but sit unused. In 1996, for instance, Rosemount Cemetery, in Newark, N.J., admitted to burying people under sidewalks, reclaiming previously sold graves and moving grave markers. The cemetery and two of its owners paid $60,000 to settle charges filed by the state cemetery board. A class-action lawsuit against Lincoln Memorial Park, in Carson, Cal. (just 15 miles from Paradise Memorial Park), alleges, among other things, that grave sites were recycled, headstones were relocated and some graves were dug under roadways. Plots were also squeezed in horizontally between vertical rows of plots, says Mike Arias of Arias & Ozello, the lead attorney for the plaintiffs. One group of defendants has settled for $1 million; the rest of the suit is pending.

Overburying isn't the only problem. Even when there is enough room, record keeping is often so shoddy that grave mix-ups are not uncommon.

In 1996 Dawn and Jeff Mayden of Sellersburg, Ind., lost their 7-year-old daughter in a freak accident at Salem Speedway, where Jeff was a race-car driver. Their grief was compounded when, a week after her funeral, they learned that Lindsey had been buried in someone else's family plot. They managed to work out an agreement with the owner, avoiding the prospect of disinterring and reburying her remains.

The bungle occurred because the funeral home that sold the plot hadn't registered the deed with the county recorder's office. Larry Wilder, the lawyer who represented the Maydens in a lawsuit, says only a handful of deeds from the cemetery had been filed with the county. "The people who deal with you at the time of your greatest loss are as trusted as a minister or a priest or a rabbi because there's such a close connection between the religious side of death and the ceremony of burial," says Wilder.

But sometimes that trust is misplaced. "Plots do get resold," says Steven Sklar, director of Maryland's Office of Cemetery Oversight. Often, it's a result of incompetence or bad record keeping, he says. In one complaint Sklar's office received, a family had visited a grave site on Memorial Day; when they returned on Labor Day, both the grave marker and the body were gone. More than a decade after the burial, "the cemetery decided that the man was in the wrong place, so they moved him," Sklar says. Under Maryland law, that's legal. Worse, the cemetery has no legal obligation to notify family members. Local newspapers have reported similar errors in Lake Wales, Fla., Suffolk, Va., and Huntington, W.Va.

Poor upkeep was the first sign of problems at Evergreen Cemetery, in Milwaukee. Last year several unhappy customers sought to move the remains of family members to other cemeteries. When the digging started, it became evident that many people were buried in the wrong place. "Certain areas had never been surveyed. There was no map to work from," says Steven Gloe, a lawyer with the enforcement division of Wisconsin's Department of Regulation and Licensing, which oversees cemeteries. Evergreen had also fallen way behind in setting grave markers, so trial and error was the only way to find the correct remains.

Regulators seem inclined to take cemeteries at their word that these are honest errors. "Mistakes happen in any kind of establishment," says Maryland's Sklar. "It's not exclusive to cemeteries -- just more traumatic."

But in Indiana, the Mayden case led to a change in the law regarding who is responsible for record-keeping errors. The law now lets cemeteries off the hook for damages when someone is buried in the wrong place, but levies stiff penalties when ownership of a plot isn't recorded or the cemetery fails to maintain proper records.

Look beneath the surface of a complaint about poor upkeep, sloppy record keeping or worse and you'll frequently find a shortage of funds. Laws vary by state, but many require that a percentage of the cost of each grave site be placed in a "perpetual care" trust fund, which is to be used to keep up the cemetery. In addition, a percentage of any money paid in advance for goods and services -- such as a marker, grave liner or opening and closing costs -- is also set aside in trust. But in many of the cases described in this story, those funds were not intact.

"When you have a cemetery that's not on a good financial footing, that's when the mischief happens," says Lisa Carlson, executive director of the Funeral and Memorial Societies of America, a consumer-advocacy group. In the Paradise Memorial case, for instance, the owners and operators of the cemetery all pleaded no contest to charges of illegal use of endowment-care funds; Alma Fraction and her daughter, Felicia Fraction, were sentenced respectively to a year and six months in jail on those charges. Victor Fortner, Alma Fraction's son, was sentenced to three years in prison after pleading no contest to additional charges of selling property twice and illegally disinterring human remains.

Missing trust funds are a common denominator in a series of cemetery scandals in Illinois. Freeport, Ill., residents protested deteriorating conditions at Oakland Cemetery in 1997, as well as suddenly imposed fees to leave flowers at gravesites. Regulators say the cemetery had serious financial problems and the owner at that time had previously managed another Illinois cemetery that was taken into receivership because of maintenance problems and mismanaged cemetery funds. Poor upkeep was also the central complaint in a 1992 class-action lawsuit against Springdale Cemetery, in Peoria, where trust funds were reportedly short by $110,000. The former owner of Springdale now owns Warren County Memorial Park, in Monmouth, which is in state receivership.

Excavating a gold mine

God's Little Million-Dollar Acre" is how the late Jessica Mitford titled the chapter on cemeteries in The American Way of Death Revisited, the sequel to her 1963 exposé of the death-care industry. That's her low-end estimate of how much an acre of land can sell for when it's divided into 1,500 8-foot by 3-foot lots that fetch roughly $700 apiece.

But you don't just pay for the real estate. The expenses of using a grave plot for an in-ground burial can add thousands of dollars to the cost of a funeral. To avoid making emotional and expensive decisions at the last minute, it's best to visit the cemetery ahead of time and have a plan in mind. Don't part with any cash until the time comes (see the box about buying in advance on the next page). All told, the burial costs may add up to $1,000 (at a bare minimum) to $3,000 or more:

The plot (or mausoleum crypt). - Fees range from as little as $100 at a small-town municipal cemetery to as much as $1,000 or more at a for-profit cemetery. Typically a 10% to 20% "perpetual care" fee is added to the base price to cover maintenance.

The outer burial container. - Most cemeteries insist that you buy a grave liner or vault to prevent the ground from sinking over time. A typical grave liner is concrete and costs $300 to $600. You'll spend at least $600 on a vault, which may be made of concrete or metal (or both) and often has a polystyrene liner that is supposed to seal out air and water. Special "sealer" caskets and vaults are dubbed "protective," but they actually do nothing to keep a body from decomposing. Elaborately decorated vaults plated with copper or bronze can cost several thousand dollars, but it seems silly to spend much on a container that almost no one sees.

Opening and closing costs. - The $400 to $900 or more that cemeteries charge to dig and fill a grave normally isn't included in the cost of the plot, which can come as a surprise to families who have paid in advance. The charges (which can double on weekends) have risen dramatically in recent years as corporations have gobbled up independent cemeteries. In some cases, fees have jumped 50% to 100% after a change in ownership, says Jon Donnellan of Washington State's Funeral and Cemetery Licensing Unit.

A grave marker. - "Express yourself," urges Helen Sclair, a Chicago cemetery expert. Some cemeteries allow only bronze or granite markers that lie flat (to make life easier for groundskeepers), so you'll need to look elsewhere if you prefer an upright headstone, monument or sculpture. The simplest markers, such as 1-foot by 2-foot flat granite stones, cost $200 or less. Or you could spend thousands for a grand tribute in fine marble. If you buy a marker through the cemetery, you'll pay a markup of 100% or more. Going directly to a monument dealer is likely to cost less, although many cemeteries charge a substantial fee to install a monument purchased elsewhere (be sure to ask before you buy a plot). It's not necessary to have a marker at the time of burial; you can take some time to shop around.

Four reasons not to buy in advance

The pitch may come in the mail, over the phone or at your front door: Buy a cemetery plot now and relieve your loved ones of the burden of making a stressful purchase after your death. You may even be told you have "won" a free cemetery plot (that gets you into the cemetery, where the free plot is likely to be in a poor location that you'll be urged to upgrade).

Corporate cemetery owners have been aggressive in pushing so-called preneed contracts, which require you to pay money in advance. While it makes sense to make funeral and burial arrangements ahead of time -- and to set aside some savings to cover the expense -- it's best to avoid locking yourself into a preneed contract.

1. You become a captive customer.

A common scenario: Mom and Dad bought cemetery plots years ago and -- unaware that there were other burial-related expenses -- told their children that "everything is taken care of." But their children learn while making funeral arrangements that the prepaid plot does not include a marker, a grave liner (or vault), and opening and closing costs, and they now have little choice but to pay whatever the cemetery demands. The "extras" often come to $3,000 or more (see "Excavating a gold mine").

"If you ask about the price of the grave, that's all they're going to tell you," says Washington State regulator Jon Donnellan. "They want to lock in that sale." You can prepay burial costs, too, but that makes a bad idea even worse, for reasons that follow.

2. Your family may not get what you paid for.

A preneed contract should spell out where the grave site is located (section, row and plot number); what type of outer burial container you have bought (a grave liner or vault, and what it's made of); what kind of marker you have chosen (size, material and style, preferably with a sketch); and whether opening, closing and marker-installation costs are included.

Years from now the cemetery may have changed hands, or the items that were described or shown to you might not be available. If the descriptions are vague, your family might get the cheapest option, even if you paid for something better.

In Washington State, for example, the state cemetery board and Blue Mountain Memorial Gardens, in Walla Walla, have locked horns over whether the cemetery improperly substituted grave liners for the more-expensive burial vaults that customers had paid for in advance. The cemetery didn't dispute that it had used liners, arguing instead that liners and vaults are the same thing -- likely not what customers were told when they elected to pay twice as much for a vault. The board won the last round, but Blue Mountain is appealing the decision. If the appeal is successful, "consumers might as well throw out their prearranged contracts," says Donnellan. "It means the cemetery can provide whatever it wants when the time comes."

In Florida, 16 funeral homes and cemeteries owned by the Loewen Group have had their preneed sales licenses suspended for, among other things, failing to describe merchandise properly in contracts and amending signed contracts without the approval of consumers. Loewen is appealing the suspensions.

3. You can get stung if you decide to cancel.

You may be told that you can get your money back if you move or decide to cancel your contract for other reasons, but the refund will probably be less than you expect.

It's usually the money you've paid for merchandise and services that's refundable, not the plot itself. Many states allow cemeteries to buy back lots (in New York, at the purchase price plus 4% interest), but none require it. In most cases you'll be stuck trying to unload the unwanted property via a newspaper ad or through a cemetery-lot broker -- and you'll be fortunate to get 50 cents on the dollar.

State laws on refunds for merchandise and services vary widely. You might get back what you paid with no interest, or you might get whatever percentage of your payment the cemetery is required to keep in a trust account, which may range from nothing to 100% and may or may not include interest.

Some cemeteries may suggest that you exchange your purchases for goods and services from the cemetery near your new residence -- but your "credit" at the new cemetery will be what you paid for the items, not what they're worth years hence. Your family will have to come up with the difference.

Even worse, if the cemetery went ahead and purchased your marker or grave liner -- a transaction over which you have no control -- the law may consider that you "constructively received" the merchandise and are not entitled to any refund or exchange.

4. You have little recourse if the cemetery runs out of money.

While a few states have consumer-protection funds that would cushion consumer losses if a cemetery went out of business, in most states you're out of luck if the cemetery defaults. And it happens. Among the plaintiffs vying for a piece of the class-action settlement against Paradise Memorial Park in California are hundreds of consumers who paid for cemetery plots in advance.