It's kinda nice when resolving an appeal essentially just boils down to reading a fairly straightforward statute. Like here.
Neptune (you know, the cremation company) sells the whole "pre-need" stuff -- I love the euphemisms -- to customers. So you pay your $470 in advance to be cremated, and pursuant to a statute, that money goes into a trust fund. No problem.
But you also pay an additional $490 for an urn, a memorial plaque, and a "cremation container" (which I suspect is just a fancy cardboard box). You don't exactly need those right now, so Neptune used to just keep that money and then give you the stuff once you died. But the Cemetery & Funeral Bureau didn't like that because Neptune didn't actually have enough urns and the like in its warehouse, so the worry was that Neptune might fold or run out of cash and leave people hanging. So they entered into an agreement a while back where Neptune agreed to have enough urns etc. in its warehouse to cover all the people to whom they had already sold the stuff in advance.
No problem there, either.
But does the additional $490 need to go in the trust account as well?
Neptune thinks it doesn't. Sure, it's selling the urns and stuff "in advance" of the death, and the statute generally says that money like that has to go in the trust fund.
But Neptune think there's a way out. It tells its customers (in writing) that they're entitled to possession of the urn etc. now if they want, but if they'd like Neptune to hold on to 'em in the meantime (which, of course, everyone does), Neptune's fine with that -- they'll hold the stuff in their warehouse.
So Neptune says they're not selling anything "in advance" -- rather, they sold it now, and are just holding onto it, so they don't need to put the cash in a trust fund.
The Cemetery & Funeral Bureau disagrees, and ultimately the Court of Appeal has to resolve who's right.
Justice Robie gives the right answer, and it's a fairly short disposition, because honestly, the statute itself pretty much answers the question. The law says that the money's got to go into a trust fund unless it bought "merchandise that is delivered as soon as paid for." Now, Neptune says that the urns and the like are "delivered" to the customer because they're entitled to receive the stuff (if they want) under the contract. But Justice Robie says, accurately, that that's not the normal meaning of the term "delivered," which means actually delivered. The buyer didn't, in fact, take possession of the stuff -- the were never actually handed the urns -- which instead just sat in the warehouse. So they aren't delivered. The statute is clear. The money's got to go in the trust account. End of story.
Which seems right to me. I'm not a guy who believes that the words of a statute are always the be all end all. But sometimes, they are. Like here.
So that's the proper resolution of the present appeal.
But application of a statute is never constant -- as a practical matter, there's always a dance. And the next step here seems fairly obvious to me.
If I'm Neptune, I feel like I can easily solve this problem. I just keep in my office some urns and boxes and when customers pay their $490, I say: "Great. Here's the urn and stuff." And I hand it to them.
Two seconds later, I say: "Oh, also, bonus! We offer a free warehousing service if you'd like. We'll go ahead and store these for you in our warehouse if you'd like, gratis (or for a penny). We'll give them back to you when you're dead, or whenever you ask; just let us know."
If that's what transpires, it seems equally clear to me that the money doesn't need to go in the trust account. Because the property has, in fact, been "delivered" to the customer. That you subsequently (or even pretty much simultaneously) agree to take the stuff back and store it for someone doesn't matter.
The same plain language that hoses Neptune here seems equally clearly to give them an obvious way out.
Sure, it's slightly more of a pain to keep samples of the stuff in the office for a moment so you can go through the useless formality of "delivering" them to the customer. But if that's what the statute in fact requires, then that's what we'll do, and we'll then pocket each $490 rather than putting it in a trust fund.
So a win for Neptune customers today, but I'm not quite sure it'll matter all that much in the future.
At least if Neptune has smart lawyers that read the opinion (and statute) the same way I do.
(Oh, and I get there's another case by Justice Robie, involving a different cremation company, that might be read to say that the scheme above might not work, though in that case, the cremation company was liable for a plethora of factual misstatements, which wouldn't be in the case is my hypothetical. Plus, as far as I can tell, there's nothing that stops a customer from purchasing stuff -- caskets, urns, etc. -- before death and storing it themselves (or having the seller do so) and not making the seller put the proceeds into a trust account. Home Depot doesn't have to put the wood for a pine box in a trust fund, so I suspect the cremation company wouldn't either. At a minimum, the obvious solution would just be to split up the companies; one sells the cremation (and puts the $ in trust), and another sells the box and urn. Done deal.)
