Case: 55CI1:17-cv-00019-CM Document #: 12 Filed: 03/07/2017 Page 1 of 14

IN THE CIRCUIT COURT OF PEARL RIVER COUNTY, MISSISSIPPI

JOHN ZAWADSKI and JOHN GASPARI, )

)
Plaintiffs, )
v. )
) CASE NO.: 55CI1-17-cv-00019-CM
BREWER FUNERAL SERVICES, INC. )
d/b/a PICAYUNE FUNERAL HOME )
TED BREWER and HENRIETTA BREWER, )
)
Defendants. )

FIRST AMENDED COMPLAINT

Jury Trial Demanded

COME NOW, JOHN ZAWADSKI and JOHN GASPARI (hereinafter Plaintiffs), by

and through undersigned counsel and file this Complaint against BREWER FUNERAL

SERVICES, INC. d/b/a PICAYUNE FUNERAL HOME, TED BREWER and HENRIETTA

BREWER (hereinafter Defendants).

INTRODUCTION

This is an action to recover damages for Defendants intentional, malicious and

outrageous actions in breaching their agreement to provide transportation and related cremation

and funeral services for a grieving familys departed loved one, knowingly leaving the

decedents body without proper storage for hours while the family scrambled to find alternative

arrangements. Defendants callous, reckless and shocking actions occurred despite having

entered into an express agreement to provide these services, and despite repeatedly assuring

Plaintiff Gaspari that Defendants would take care of everything upon notification of the

passing of Plaintiffs beloved family member, Robert Huskey, who died three days after he

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turned 86 years old. Notwithstanding these repeated assurances, Defendants abruptly refused to

transport Mr. Huskeys body and otherwise breached their agreements upon learning that the

deceased was a gay man whose next of kin was his lawful husband, communicating only that

they did not deal with their kind. As a result of Defendants actions, Plaintiffs suffered

profound and permanent emotional and dignitary harms for which they seek compensatory and

punitive damages.

PARTIES

Plaintiffs:

1. Plaintiff John Jack Zawadski (Jack or Zawadski) is 82 years old, a Mississippi

resident and Robert Huskeys surviving spouse.

2. Plaintiff John Gaspari (John or Gaspari) is a Colorado resident. He is the executor of

the estate of Robert Huskey (Bob) and nephew of Bob and Jack.

Defendants:

3. Brewer Funeral Services, Inc. is a for-profit business owned by spouses Defendant Ted

Brewer and Defendant Henrietta Brewer.

4. Brewer Funeral Services, Inc. is an incorporated entity doing business as Picayune

Funeral Home Inc. (PFH) in Picayune, Mississippi. PFH is a funeral establishment

licensed by the Mississippi State Board of Funeral Service.

5. Based on information and belief, Ted Brewer is a resident of Picayune, Mississippi and is

an owner, the President and a Director of Brewer Funeral Services, Inc.

6. Based on information and belief, Henrietta Brewer is a resident of Picayune, Mississippi

and is an owner, the Vice President, Treasurer and a Director of Picayune Funeral Home

Inc.

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7. Based on information and belief, Defendants Ted Brewer and Henrietta Brewer also work

as agents and/or employees of PFH.

JURISDICTION AND VENUE

8. This Court has jurisdiction of the persons and subject matter of this civil action and all

causes of action for damages listed herein. See Miss. Const. Art. 6, 156.

9. Venue is proper in this Court because substantial acts and/or omissions causing the

damages listed herein took place in Picayune, in Pearl River County, Mississippi.

FACTUAL BACKGROUND

10. Jack and Bob met in 1965 in Anaheim, California. They quickly fell in love and were a

committed and loving couple for more than 52 years.

11. Bob and Jack moved from California to Colorado in 1968 to care for Bobs mother after

his father passed. Seven years later, the couple moved to Wisconsin where Jack owned an

apple tree farm. They taught special education classes until they retired and moved south.

They settled in Picayune, Mississippi in 1997 because they loved the area and the

climate.

12. On July17, 2015, shortly after the U.S. Supreme Court struck down laws barring same-

sex couples from marrying as unconstitutional in Obergefell v. Hodges, 135 S. Ct. 2071

(2015), Jack and Bob were finally able to and did wed in Mississippi.

13. From the time he was born, John has known Jack and Bob as his uncles, and John loves

them both. As their closest family member, Jack and Bob both named John as executor of

their respective estates.

14. Bob suffered from a heart condition that required bypass surgery several years prior to

the events that gave rise to this action. As they had for each other throughout their lives,

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Jack cared for Bob through his surgery, recovery and as his condition deteriorated. By

August, 2015, Jack was helping Bob with all the daily functions of life, including eating,

walking and personal hygiene.

15. Even with the help of hospice services, Bobs condition eventually exceeded Jacks

ability to care for Bobs physical and medical needs. Bob entered the Driftwood Nursing

Home, expected to expire within a week. Three months later, Bob was transferred to

nearby Bedford Care Center of Picayune (Nursing Home), where Jack was able to visit

more frequently.

16. By the end of April, 2016, it became clear that Bobs passing was imminent. John, who

lives in Colorado, searched for a funeral home in the area with an on-site crematorium in

order to make prearrangements for transportation and services after Bob passed away.

17. It was important to Plaintiffs that they locate a funeral home that had an on-site

crematorium in order to ensure that Bobs body would not have to be moved any more

than necessary. It was also important to them that the funeral home be near Bob and

Jacks Picayune community so that friends could gather and console each other at a

memorial luncheon after the cremation.

18. John researched available options for post-mortem transportation and cremation services

on the internet. PFH advertises on the internet that:

We are a full service funeral home and we strive to meet the needs of the
families we service. When you choose Picayune Funeral Home your loved
one is with us the entire time, whether you choose burial or cremation. We
own & operate the only Crematory in Pearl River County. We also own the
only privately owned Perpetual Care Cemetery & Mausoleum in Pearl
River County.

At Picayune Funeral Home we are committed to providing our community

with the best possible service in their time of need.

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19. PFH owns and operates the only on-site crematorium in Pearl River County.

20. On or about May 3, 2016, John contacted PFH by telephone and explained his familys

approaching need for their services. The PFH representative who first spoke with John

identified himself as the owner and assured John that their funeral home would be able

to take care of all of their needs. Based on these assurances, John entered into an oral

agreement with PHF for PFH to transport Bobs body from the Nursing Home to PFH

funeral home and for cremation and related services.

21. The parties specifically agreed to the services to be provided and the pricei.e., PFH

agreed to provide transportation, cremation and related services upon notification that

Bob had passed away and John agreed to pay $1795 for those services.

22. After the parties reached this agreement, a PFH representative then told John that they

would fax the necessary paperwork to the Nursing Home and instructed John to have the

Nursing Home call PFH when his uncle passed, at which time they would send a vehicle

to transport the body and begin cremation arrangements.

23. The day before Bob passed, on or about May 10, 2016, John called PFH to let them know

Bobs passing was imminent, likely within the next 24 hours. Again, John was assured by

a PFH representative that they would take care of everything; all that was needed was a

call from the Nursing Home when Bob passed away.

24. Based on information and belief, PFH sent the Nursing Home the necessary paperwork to

be signed by Bobs next of kin after his death in order to transport his body and for

cremation services.

25. On or about May 11, 2016, the Nursing Home called John to let him know that Bob had

died and that they had contacted PFH. John was told that PFH simply needed Bobs next

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of kin to sign the paperwork in order for the body to be transported. Jack signed the

paperwork and it was sent by facsimile to PFH.

26. Shortly after the Nursing Home sent the signed paperwork that identified Jack as Bobs

surviving spouse, John was contacted by the Nursing Home and informed that PFH now

adamantly refused to provide services. The Nursing Home relayed to John that once PFH

received the paperwork indicating that Bobs spouse was male, PFH refused service

because it did not deal with their kind.

27. The Nursing Home representative further communicated to John that, because the

Nursing Home did not have a morgue on site, Bobs body needed to be moved

immediately. On information and belief, PFH regularly provided services to the Nursing

Home and was aware that it lacked proper storage for deceased persons.

28. Based on the fact that the owner, Defendant Ted Brewer, answered the business line

when John called to arrange services, and upon additional information and belief, the

decision to refuse the services was made by one or both of the two owners of PFH.

29. The funeral homes cancellation of services came in the midst of Johns grief, and after

he had contracted with Defendants for pre-need services to ensure that Bobs body would

be properly cared for and that Jack could be insulated from additional suffering and

anxiety at the time of his husbands death.

30. John was outraged, horrified and distraught at this news. Sadly, he was forced to involve

his grieving uncle in the crisis that ensued, notwithstanding his intentional

prearrangement with Defendants to shield his octogenarian uncle from additional distress

and suffering.

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31. In the midst of Johns grief and distress, and with the Nursing Home insisting that Bobs

body had to be removed immediately, John was forced to begin a frantic search for

another funeral home with an onsite crematorium that could accommodate their

immediate need. He located what appeared to be a suitable funeral home with a

crematorium, in Hattiesburg, Mississippi, approximately 90 miles away from the Nursing

Home and Jack and Bobs homefar from where the family had intended final handling

of Bobs body would take place.

32. Defendants sudden refusal to provide the prearranged services created even more

distress for Plaintiffs because Bobs body could not stay at the Nursing Home for the

time it would take for the Hattiesburg funeral home to send transportation. As a result,

yet another funeral home in Picayune needed to be secured in order to transport Bobs

body from the Nursing Home to the Hattiesburg funeral home.

33. Because of the added distance of the alternative funeral home and the last minute rush to

find alternate arrangements after Defendants left them in the lurch, John and Jack were

unable to gather friends in the community, as had been their original plan, to honor Bob

and support them in their grief.

34. The turmoil and exigency created by Defendants in causing Plaintiffs to find alternative

arrangements, as described above, permanently marred the memory of Bobs otherwise

peaceful passing. Having planned for Bob to be moved within minutes of his passing

with simply a phone call to PFH from the Nursing Home, Plaintiffs were devastated and

frantic for hours, having to locate and make substitute arrangements with two other

funeral homes, and with the Nursing Homes insistence that Bobs body be removed

imminently hanging over their heads.

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35. Both John and Jack were devastated and outraged that they were treated so inhumanely

and callously while they were in an extremely vulnerable state and that they were denied

the services John had carefully arranged for and were led to rely upon by the assurances

of the Defendants. They also were horrified that Bob had been so dishonored and treated

with such indignity by Defendants immediately after his death.

36. Defendants added enormous suffering, anxiety, distress, anguish, humiliation and

indignity to the Familys profound grief as a result of their reckless, outrageous and

discriminatory actions.

37. Based on information and belief, Defendants Ted and Henrietta Brewer direct the

activities of their small staff and were personally involved in the decision to deny

Plaintiffs services.

FIRST CAUSE OF ACTION

Intentional Infliction of Emotional Distress

(By all Plaintiffs against all Defendants)

38. Plaintiffs incorporate and reallege paragraphs 1 through 37.

39. Defendants acted willfully or wantonly in refusing to provide the prearranged contracted

services to the Plaintiffs in their time of grief and need.

40. Defendants Ted Brewer and Henrietta Brewer authorized or directed the denial of

services described herein, acting on their own behalf, with knowledge of or consent to the

denial, or acquiescing in it when they knew or by the exercise of reasonable care should

have known of the denial and should have objected and taken steps to prevent it.

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41. Defendants actions and inactions as outlined above were willful and wanton toward the

Plaintiffs, evoke outrage or revulsion in civilized society and were directed at or intended

to cause harm to the Plaintiffs.

42. Plaintiffs suffered severe emotional distress as a direct result of Defendants actions and

failure to act.

43. The resulting emotional distress suffered by Plaintiffs was reasonably foreseeable from

Defendants actions and failure to act.

44. Defendants are directly and vicariously liable for the actions and inactions described

herein.

SECOND CAUSE OF ACTION

Negligent Infliction of Emotional Distress

(By all Plaintiffs against all Defendants)

45. Plaintiffs incorporate and reallege paragraphs 1 through 37.

46. Defendants owed Plaintiffs a duty to provide the transportation and cremation and related

services agreed to, and their failure to do so created an unreasonable and foreseeable risk

of causing Plaintiffs severe emotional distress.

47. Defendants breached the duty described in paragraph 47 above.

48. Defendants actions and/or omissions are contrary to what a reasonably careful person

operating a funeral home would do or not do under similar circumstances.

49. Defendants acted negligently and/or with gross carelessness, indifference or recklessness

in refusing to provide the contracted services to Plaintiffs in their time of grief and need.

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50. Defendants actions and/or omissions proximately caused Plaintiffs to experience mental

and emotional distress and anguish, which were reasonably foreseeable results of

Defendants conduct.

51. Defendants actions and inactions as described herein were extreme and outrageous.

52. Plaintiffs suffered severe emotional distress as a direct result of Defendants actions and

failure to act.

53. The resulting emotional distress suffered by Plaintiffs was reasonably foreseeable from

Defendants actions and failure to act.

54. Defendants Ted Brewer and Henrietta Brewer authorized or directed the denial of

services described herein acting on their own behalf, with knowledge of or consent to the

denial, or acquiesced in it when they knew or by the exercise of reasonable care should

have known of the denial and should have objected and taken steps to prevent it.

55. Defendants are directly and vicariously liable for the actions and inactions described

above.

THIRD CAUSE OF ACTION

Breach of Contract

(By all Plaintiffs against Defendant PFH)

56. Plaintiffs incorporate and reallege paragraphs 1 through 37.

57. Defendant PFH entered into a valid and binding oral contract with Plaintiff Gaspari.

58. The terms of the agreement described herein were sufficiently definite.

59. Defendant PFHs failure to provide transportation, cremation and related services upon

notification of Bobs death was a material breach of the contract.

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60. The contract between Plaintiff Gaspari and Defendant PFH was entered for the benefit of

the spouse of the deceased, Plaintiff Zawadski, and/or was contemplated to benefit him as

a direct result of performance of the contract.

61. Defendant PFH owed a legal obligation or duty to Plaintiff Zawadski to provide the

services contracted for by Plaintiff Gaspari.

62. Plaintiffs suffered damages, including monetary damages, as a result of Defendant PFHs

breach of the contract.

63. All actions and inactions as described herein were taken through Defendant PFHs

servants, agents, apparent agents, representatives and/or employees in the course and

scope of their employment.

64. Plaintiffs injuries and mental anguish were foreseeable consequences of the breach of

contract.

65. Defendant PFHs breach of the contract resulted from an intentional wrong, insult, abuse

and/or gross negligence.

66. Defendant PFHs breach was the result of actions and/or omissions that were grounded in

willful malice, a malicious wrong, gross negligence and/or reckless disregard for the

rights of others.

67. Defendant PFH is legally responsible for Plaintiffs damages.

FOURTH CAUSE OF ACTION

Negligent Misrepresentation

(By all Plaintiffs against PFH)

68. Plaintiffs incorporate and reallege paragraphs 1 through 37.

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69. At the time of the events giving rise to this action, Defendant PFH advertised on the

public internet to all consumers of their services, without identifying classes of people to

whom they refused their services, to strive to meet the needs of the families we service

and claimed that when a consumer choose[s] Picayune Funeral Home your loved one is

with us the entire time, whether you choose burial or cremation.

70. Defendant PFHs advertisements as described in paragraph 70 above were intended to

sell a service directly or indirectly to the public and to induce all members of the public

to enter into an obligation for services relating to cremation services.

71. Defendant PFHs advertisements as described in paragraph 70 above helped induce

Plaintiffs to enter into an obligation for services relating to cremation services.

72. Defendant PFHs advertisements described in paragraph 70 above contained assertions,

representations and/or statements of fact which are untrue, deceptive and/or misleading.

73. Notwithstanding that Defendant PFH discriminates in provision of services to families

headed by same-sex couples based on prejudice against their kind, Defendant PFH

knew that the advertisements described in paragraph 70 above would serve as an

inducement to all potential customers to engage their services based on the assurance that

they would strive to meet the needs of the families who choose their funeral home and

that once chosen, their loved one would [stay] with Picayune Funeral Home the entire

time. In reality, Defendant PFH would not provide services to gay people and their

families. Defendant PFHs advertisements were untrue, deceptive or misleading as to

some families.

74. As a result of the untrue, deceptive and/or misleading advertisements described above,

Defendant PFH proximately caused damages to Plaintiffs.

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WHEREFORE, Plaintiffs John Zawadski and John Gaspari respectfully demand a jury trial

and request that they be awarded actual, compensatory, consequential and punitive damages and

attorneys fees, costs, expenses and all other sums to which Plaintiffs are entitled in law and in

equity.

Dated: March 7, 2017.

Respectfully submitted,

/s/ Robert B. McDuff

ROBERT B. MCDUFF
Miss. Bar No. 2532
MCDUFF & BYRD
767 North Congress Street
Jackson, MS 39202
Telephone (601) 969-0802
Facsimile (601) 969-0804
rbm@mcdufflaw.com

Elizabeth Littrell
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
Georgia Bar No. 454949*
730 Peachtree Street, NE, Suite 640
Atlanta, GA 30308
Telephone (404) 897-1880
Facsimile (404) 897-1884
blittrell@lambdalegal.org

Susan L. Sommer
LAMBDA LEGAL DEFENSE &
EDUCATION FUND, INC.
New York Bar No. 389476*
120 Wall Street, 19th Floor
New York, NY 10005
Telephone (212) 809-8585
Facsimile (212) 809-0055
ssommer@lambdalegal.org

Attorneys for Plaintiffs.

*Admitted Pro Hac Vice

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CERTIFICATE OF SERVICE

I hereby certify that on this day I electronically filed the foregoing First Amended

Complaint and Demand for Jury Trial with the Clerk of the Court using the MEC system.

Further, I hereby certify that I have served the foregoing to the following non-MEC participants

by U.S. Mail:

Brewer Funeral Services, Inc.

d/b/a Picayune Funeral Home
ATTN: Registered Agent Ted Brewer
815 1/2 S. Haugh Ave
Picayune, MS 39466

Ted Brewer
4050 Victoria Street
Bay Saint Louis, MS 39520

Henrietta Brewer
4050 Victoria Street
Bay Saint Louis, MS 39520

This the 7th day of March, 2017.

/s Robert McDuff
Robert McDuff