Virginia Lawyers Weekly VA Lawyers Weekly
Although the Norfolk Circuit Court earlier dismissed plaintiff’s claim against her brother-in-law for performance of her deceased sister’s promise that plaintiff would receive $60,000 from her sister’s pension proceeds, plaintiff is not barred from pursuing a claim against her brother-in-law for payment of her sister’s $10,210 funeral expenses, under the common law doctrine of necessaries.
Defendant’s motion to dismiss is denied because plaintiff has a valid claim under the doctrine of necessaries against defendant, personally, for costs plaintiff incurred as a result of her sister’s funeral and burial. Second, plaintiff is not barred from seeking an appeal in this court because defendant has conceded plaintiff is pursuing a remedy under a theory different from the one in the pension claims suit. Plaintiff is entitled to raise the doctrine of necessaries as a theory of liability for the first time on her de novo appeal to this court.
Plaintiff has a valid claim under this doctrine because it imposes upon a spouse a personal liability for a deceased spouse’s funeral and burial costs for which a third party has paid. Defendant is incorrect as a matter of law when he states plaintiff’s action should be dismissed because Va. Code § 64.1-136.1 extends liability solely to a decedent’s estate.
As the surviving spouse, defendant has a statutory and personal duty to pay for his wife’s funeral expenses under Code § 55-37 and the common law doctrine of necessaries. Plaintiff has in fact brought a valid action against defendant in his personal capacity for reimbursement of his wife’s funeral expenses under the doctrine of necessaries.
Defendant’s motion to dismiss is denied.
Also, claim preclusion is not a bar to plaintiff’s current case, as the action at bar is distinguishable from her actions in the refiled pension claim case.
Shepard v. Moore (Poston) No. CL 11-0882, Sept. 22, 2011; Norfolk Cir.Ct.; Joseph R. Lassiter Jr., S.H. Weaver for the parties. VLW 011-8-199, 6 pp.
