DATE: Thursday, November 20, 1997           TAG: 9711200445

SECTION: BUSINESS                PAGE: D1   EDITION: FINAL 

SOURCE: BY MARC DAVIS, STAFF WRITER 
DATELINE: NORFOLK                           LENGTH:   50 lines

SUIT THAT ACCUSED FUNERAL HOME OF MISLEADING ADS IS THROWN OUT

A newspaper ad that compared prices among 14 local funeral homes, showing that one was the least expensive, did not mislead consumers, a federal magistrate has ruled.

Magistrate Judge William T. Prince has thrown out a lawsuit that accused Altmeyer Funeral Homes of Virginia Beach of defamation and misleading advertising.

The lawsuit was filed in February in Norfolk's federal court by rival H.D. Oliver Funeral Apartments of Norfolk.

The lawsuit concerned a full-page ad in The Virginian-Pilot in which Altmeyer compared its prices for a traditional funeral service with 13 other funeral homes' prices, including Oliver's. It ran one time only, on Jan. 21.

The ad showed the total price of such a funeral at Altmeyer, including a traditional service, a stainless steel casket and a Monticello vault, as $4,585. It showed other funeral homes charging $4,975 to $7,623.

The ad also stated that Altmeyer charges $495 for a ``minimum cremation disposition,'' while ``traditional funeral homes'' charge $900 to $1,900.

Altmeyer, a newcomer to the local funeral home trade, is trying to carve out a niche as a low-price alternative to traditional funeral homes.

In its lawsuit, however, H.D. Oliver argued that the ad was misleading. It claimed the ad overstated Oliver's prices by 20 percent. It also said Altmeyer has a history of misleading advertising dating to 1993 or 1994 in Pittsburgh, and that the January ad cost Oliver significant business.

Oliver sought a court injunction against the ad, plus unspecified compensatory damages and $350,000 in punitive damages.

In court, Oliver offered an expert's opinion that Oliver's business value dropped more than $1 million after the ad ran. The magistrate, however, rejected that opinion as ``speculative.''

In testimony, John Oliver, president of H.D. Oliver, said he knew of no customer who chose Altmeyer instead of Oliver because of the ad, and that it would be just guesswork to attribute any lost business to the ad.

In a nine-page ruling, the magistrate also noted that Oliver's gross income was 20 percent higher this year than for the same period before the ad ran.

Finally, Prince ruled that the ad overstated Oliver's funeral costs by only 2 percent.

``The court finds that the ad is not likely to cause confusion in the mind of the public. . . . There is also no evidence in this case of actual confusion'' by any consumers, Prince ruled.

James E. Altmeyer Jr., the funeral home's general manager, responded to the ruling with a written statement: ``We have stated from the beginning that the Oliver claims were without substance, and we are very pleased with the result.''

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