\"F.B.C.\", a Pseudonym v. MDWISE, INC., d/b/a MDWISE, MDWISE NETWORK, INC., and MDWISE MARKETPLACE, INC. , 122 N.E.3d 834 ( 2019 )

FILED
Apr 16 2019, 8:38 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Richard B. Kaufman Sarah Jenkins
Indianapolis, Indiana Harmony Mappes
Anna Behrmann
Faegre Baker Daniels LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
“F.B.C.”, a Pseudonym, April 16, 2019
Appellant/Cross-Appellee/Plaintiff, Court of Appeals Case No.
18A-CT-1934
v. Interlocutory Appeal from the
Marion Superior Court
MDWISE, INC., d/b/a The Honorable Heather A. Welch,
MDWISE, MDWISE Special Judge
NETWORK, INC., and Trial Court Cause No.
MDWISE MARKETPLACE, 49D01-1801-CT-1781
INC.,
Appellees/Cross-Appellants/Defendants.
Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019 Page 1 of 15
Case Summary
[1] In 2017, F.B.C. and her husband (“Husband”) had a health insurance policy
with MDwise, Inc., d/b/a MDwise; MDwise Network, Inc.; MDwise
Marketplace, Inc. (collectively “Insurer”). In May of 2017, F.B.C. was tested
for various sexually transmitted diseases, and Insurer posted a statement (“the
Statement”) listing testing for the diseases on its web portal which was
accessible by Husband as the primary policyholder. Husband viewed the
Statement which F.B.C. alleges caused him to cease reconciliation of their
marriage and proceed with their pending divorce. F.B.C. filed suit against
Insurer alleging, inter alia, disclosure of private facts to a particular public
(“Disclosure”), intrusion (“Intrusion”), and outrage (“Outrage”). Insurer
moved to dismiss all claims, which motion was granted by the trial court on all
claims except Outrage. F.B.C. contends that the trial court erroneously
dismissed her claims of Disclosure and Intrusion. Insurer contends that the trial
court erroneously denied its motion to dismiss F.B.C.’s Outrage claim. Because
we conclude that all three claims should have been dismissed as a matter of
law, we affirm in part, reverse in part, and remand with instructions to dismiss
F.B.C.’s Outrage claim.
Facts and Procedural History
[2] In 2017, F.B.C. and Husband were attempting to reconcile before following
through with their pending divorce. The couple had a health insurance policy
through Insurer, on which Husband was the primary policyholder. On May 17,
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2017, F.B.C. was tested for various sexually transmitted diseases. When
Husband logged into Insurer’s online web portal, he accessed the Statement
which listed, inter alia, the diseases for which F.B.C. was tested. As a result,
F.B.C. alleges that Husband refused to continue reconciliation and proceeded
with the pending divorce.
[3] On January 16, 2018, F.B.C. filed a complaint against Insurer alleging, inter
alia, Disclosure, Intrusion, and Outrage. On March 12, 2018, Insurer moved to
dismiss all counts pursuant to Indiana Trial Rule 12(B)(6). The trial court
granted Insurer’s motion to dismiss F.B.C.’s Disclosure and Intrusion claims
but denied the motion as to the Outrage claim.
Discussion and Decision
[4] F.B.C. contends that the trial court erroneously dismissed her claims of
Disclosure and Intrusion. Insurer contends that the trial court erroneously
denied its motion to dismiss F.B.C.’s Outrage claim. Indiana Trial Rule
12(B)(6) is a motion to dismiss for “[f]ailure to state a claim upon which relief
can be granted[.]”
A motion to dismiss for failure to state a claim tests the legal
sufficiency of the claim, not the facts supporting it. When ruling
on a motion to dismiss, the court must view the pleadings in the
light most favorable to the nonmoving party, with every
reasonable inference construed in the non-movant’s favor. We
review a trial court’s grant or denial of a Trial Rule 12(B)(6)
motion de novo. We will not affirm such a dismissal unless it is
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apparent that the facts alleged in the challenged pleading are
incapable of supporting relief under any set of circumstances.
Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (internal citations and
quotations omitted).
I. Disclosure
[5] F.B.C. contends that the trial court erroneously dismissed her Disclosure claim.
Because the tort of Disclosure has not yet been recognized in Indiana, we
disagree. In Doe v. Methodist Hospital, the Indiana Supreme Court declined to
adopt Disclosure, which is a sub-tort of invasion of privacy, as an actionable
claim. 690 N.E.2d 681, 693 (Ind. 1997). The Court recognized that while
neighboring states have adopted a more liberal Disclosure standard, it was not
persuaded to adopt Disclosure as a cognizable claim in Indiana. Id. at 692–93.
See also Felsher v. University of Evansville, 755 N.E.2d 589, 593 (Ind. 2001) (“Our
discussion of [the history of the invasion of privacy tort] and the Second
Restatement served as a prelude to our decision not to recognize a branch of the
tort involving the public disclosure of private facts.”). F.B.C. has failed to
establish that the trial court erroneously dismissed her Disclosure claim.
II. Intrusion
[6] F.B.C. contends that the trial court erroneously dismissed her Intrusion claim.
Intrusion occurs when there has been an “intrusion upon the plaintiff’s physical
solitude or seclusion as by invading his home or conducting an illegal search.”
Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). F.B.C. does not claim any
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physical intrusion by Insurer but, rather, claims that Insurer intruded upon her
emotional solace. However, we have specifically chosen not to recognize claims
of Intrusion where the intrusion only invades plaintiff’s emotional solace. See
Westminster Presbyterian Church of Muncie v. Yonghong Cheng, 992 N.E.2d 859,
868–69 (Ind. Ct. App. 2013) (concluding that the tort of Intrusion has only been
found where there was an intrusion by physical contact or an invasion of
plaintiff’s physical space, and refusing to extend it to cases where the only
intrusion is upon plaintiff’s emotional solace), trans. denied. Because F.B.C. only
claims that Insurer intruded upon her emotional solace, we conclude that the
trial court correctly dismissed her claim of Intrusion.
III. Outrage
[7] Insurer cross-appeals, contending that the trial court erroneously denied its
motion to dismiss F.B.C.’s Outrage claim. Outrage (also referred to as
intentional infliction of emotional distress) is caused by “one who by extreme
and outrageous conduct intentionally or recklessly causes severe emotional
distress to another.” Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514,
522–23 (Ind. Ct. App. 2001) (internal citations omitted), trans. denied. To prove
Outrage, the plaintiff must establish that the defendant (1) engages in extreme
and outrageous conduct that (2) intentionally or recklessly (3) causes (4) severe
emotional distress to another. Id. at 523. In appropriate cases, the question of
what constitutes extreme and outrageous conduct can be decided as a matter of
law. Id. Conduct is extreme and outrageous
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only where the conduct has been so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community. Generally, the case is one in which the
recitation of the facts to an average member of the community
would arouse his resentment against the actor, and lead him to
exclaim, Outrageous!
Conwell v. Beatty, 667 N.E.2d 768, 777 (Ind. Ct. App. 1996) (internal quotations
omitted).
[8] We conclude that Insurer’s alleged conduct was not extreme and outrageous as
a matter of law. F.B.C. alleges that Insurer caused her severe emotional distress
by posting the Statement listing the various diseases that she was tested for on
its web portal, which was subsequently viewed by Husband. This is not conduct
which is utterly intolerable in a civilized community but, rather, routine in
today’s technologically-driven society. Health insurance companies maintain
web portals to allow policyholders instant access to their personal medical
information, insurance claims, etc., and the current matter is no exception.
Husband was the primary policyholder with instant access to the couple’s
medical insurance information through Insurer’s web portal. Even if we
assume, which we do not, that Insurer intended to cause F.B.C. severe
emotional distress by posting the Statement for Husband to view, the conduct
still does not amount to extreme and outrageous. Therefore, the trial court erred
by failing to dismiss F.B.C.’s Outrage claim.
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[9] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions to dismiss F.B.C.’s Outrage claim.
Brown, J., concurs.
Bailey, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
“F.B.C.”, a Pseudonym, Court of Appeals Case No.
18A-CT-1934
Appellant/Cross-Appellee-Plaintiff,
v.
MDwise, Inc. d/b/a MDwise;
MDwise Network, Inc.; and
MDwise Marketplace, Inc.,
Appellees/Cross-Appellants-Defendants.
Bailey, Judge, dissenting.
[10] I respectfully dissent because I believe, given the opportunity, the Indiana
Supreme Court would recognize the torts of public disclosure of private facts
and intrusion into emotional solace. Seeing no barrier to these claims, I would
conclude that F.B.C. stated actionable claims of Disclosure and Intrusion. I
would also conclude that F.B.C. stated an actionable claim of Outrage.
Disclosure
[11] Under Indiana law concerning privacy and publicity, the dead have more
protection than the living. Indeed, state law guards against the unauthorized
exploitation of personal attributes by conferring a broad right of publicity: a
property right in one’s name, voice, signature, image, and gestures, among
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other things. See Ind. Code § 32-36-1-7 & -8. Hoosiers enjoy this protection
throughout their lives and the transferrable right of publicity lives on for 100
years after death. See I.C. § 32-36-1-8, -16 & -19. Thus, Indiana law offers a
remedy—even punitive damages—if one’s face is printed on a box of cereal.
See I.C. § 32-36-1-10. Yet, Indiana law does not definitively recognize a more
basic right—a privacy right that protects the dignity of the living by guarding
against the unauthorized public disclosure of highly personal information.
[12] In 1997—amid the infancy of the internet, when carrying troves of personal
information on a pocket device may have seemed “the stuff of science fiction,”
Zanders v. State, 118 N.E.3d 736, 738 (Ind. 2019)—a plurality of the Indiana
Supreme Court “decline[d] to recognize” the tort of public disclosure of private
facts, see Doe v. Methodist Hosp., 690 N.E.2d 681, 682 (Ind. 1997). A few years
later, in Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 (Ind. 2001), our
supreme court characterized the plurality decision as a majority holding, noting
that the discussion in Doe “served as a prelude to [its] decision not to recognize
a branch of the tort involving the public disclosure of private facts.”
[13] Yet, since 1997, there has been an “exponential increase in the amount and
sensitivity of personal information that has become available online . . . and [a]
corresponding increase in the speed and ease with which that information may
be broadcast to the public.” Robbins v. Trustees of Ind. Univ., 45 N.E.3d 1, 13
(Ind. Ct. App. 2015) (Crone, J., concurring in part and concurring in result in
part). For these reasons, Judge Crone thoughtfully “urge[d] our supreme court
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to revisit its pronouncements” on the tort of public disclosure of private facts—
albeit in a case in which transfer ultimately was not sought. See id. at 13.
[14] As Judge Crone observed, “[w]hether Indiana recognizes this tort is technically
an open question, but for all practical purposes the answer is currently no.” Id.
Whereas Judge Crone was “not inclined to rock this particular boat” by
recognizing the tort of public disclosure of private facts, id., I believe our
supreme court would have clearly recognized this tort had day-to-day life in
1997 been as inextricably intertwined with technology as it is today. Indeed,
[i]t is difficult to overstate the extent to which we have
surrendered, by choice or compulsion, the most intimate details
of our lives to the digital domain. Many Hoosiers are
paid . . . online. And many Hoosiers bank, shop, conduct
business, pay taxes, engage in social and political activity, seek
medical and legal advice, and (pursuant to federal law) have their
health records stored online. Although much of this information
is expected and intended to be disseminated to a wide audience
(family vacation photos, job résumés), much is expected and
intended to be kept under the electronic equivalent of a lock and
key (financial records, psychiatric treatment notes).
Id. at 13-14. Moreover, with the ubiquity of digital data, it is easier than ever
for unwanted third parties to obtain—and share—sensitive information. See,
e.g., Doe, 690 N.E.2d at 695 (Dickson, J., concurring in result) (“With our ever-
increasing population and the growing technological opportunities for invasive
scrutiny into others’ lives, the compilation of private data, and the disclosure of
purely personal matters, this common law tort [of disclosure] grows in
importance as a valuable source of deterrence and accountability.”); see also
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Elizabeth M. Jaffe, Cyberbullies Beware: Reconsidering Vosburg v. Putney in the
Internet Age, 5 Charleston L. Rev. 379, 382-85 (2011) (noting the tort
implications of tragic events involving a college student who committed suicide
after his roommate used a computer camera to spy on the student’s sexual
encounters, revealed the student’s sexual orientation in a post on social media,
and shared a link that allowed third parties to remotely view the camera feed).
[15] According to the Indiana Supreme Court, “[t]he extent to which the tort of
invasion of privacy is recognized in Indiana is not yet settled.” Allstate Ins. Co.
v. Dana Corp., 759 N.E.2d 1049, 1057 (Ind. 2001); see Robbins, 45 N.E.3d at 13
(Crone, J., concurring in part and concurring in result in part) (“Whether
Indiana recognizes this tort [of disclosure] is technically an open question.”).
Furthermore, our supreme court has acknowledged “that unique circumstances
may ‘give rise to the expansion of the . . . forms of tort liability for invasion of
privacy.’” Felsher, 755 N.E.2d at 595 (quoting Restatement (Second) of Torts §
652A cmt. c (1977)). In light of the vast technological advances that have
profoundly reshaped day-to-day life since the 1990s, I believe the Indiana
Supreme Court would clearly recognize not only a tort of public disclosure of
private facts but also—as this case involves—the sub-tort of disclosure to a
particular public. See, e.g., Doe, 690 N.E.2d at 692 (discussing this sub-tort,
recognized in other states, where the pertinent inquiry is “whether a particular
disclosure would be embarrassing given the plaintiff’s relationship with the
‘particular public’ at issue”). Here, F.B.C. alleged the unpermitted disclosure of
sensitive health information to F.B.C.’s spouse—that F.B.C. had been tested for
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several sexually communicable diseases. I would conclude F.B.C. alleged a
viable claim of Disclosure. Thus, I would reverse the dismissal of this count.
Intrusion
[16] With respect to the claim of Intrusion, the majority concludes dismissal of the
claim was proper because the alleged intrusion was emotional—not physical—
in nature. The majority draws on Cullison, an Indiana Supreme Court case:
“Intrusion occurs when there has been an ‘intrusion upon the plaintiff’s physical
solitude or seclusion as by invading his home or conducting an illegal search.’”
Slip op. at 4 (emphasis added) (quoting Cullison v. Medley, 570 N.E.2d 27, 31
(Ind. 1991)). The majority then cites to Westminster Presbyterian Church of Muncie
v. Yonghong Cheng, wherein this Court—not our supreme court—declined to
recognize a claim of intrusion where the alleged intrusion was not physical in
nature. 992 N.E.2d 859, 868-69 (Ind. Ct. App. 2013), trans. denied.
[17] To the extent the majority reads Cullison as creating a requirement of physical
intrusion, I respectfully disagree. The passage mentioning physical intrusion
appears in a case involving allegations either chiefly physical in nature—
entering a residence—or, as the Court determined, not actionable because the
allegedly intrusive actions took place in public. See Cullison, 570 N.E.2d at 31.
Further, in mentioning physical intrusion, the Court cited to a single treatise.
Yet, the Restatement (Second) of Torts sets forth the elements necessary to
allege intrusion: “One who intentionally intrudes, physically or otherwise, upon
the solitude or seclusion of another or his private affairs or concerns, is subject
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to liability to the other for invasion of his privacy, if the intrusion would be
highly offensive to a reasonable person.” Section 652B (1977) (emphasis
added); cf. Munsell v. Hambright, 776 N.E.2d 1272, 1283 (Ind. Ct. App. 2002)
(noting that the tort of intrusion “arguably embraces intrusion into emotional
solace”), trans. denied. Ultimately, although this Court has declined to identify a
claim of non-physical intrusion, I do not read binding precedent as foreclosing
such a claim. Thus, in light of the technological advances since Cullison was
decided in 1991, I would follow the Restatement, which recognizes an
actionable claim of intrusion “physically or otherwise,” and I would reverse
dismissal of this claim. Cf. Felsher, 755 N.E.2d at 595 (observing that “unique
circumstances may ‘give rise to the expansion of the . . . forms of tort liability
for invasion of privacy.’” (quoting Restatement (Second) of Torts § 652A cmt. c
(1977)).
Outrage
[18] Turning to the final claim at issue, I cannot say—as a matter of law—that
F.B.C. failed to allege facts supporting a claim of Outrage. The parties trade
arguments concerning whether sharing this information actually constituted a
violation of the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”). Nevertheless, whether or not the defendants technically violated
HIPAA or some other law, the common law has long-recognized social risk
associated with the status of having a sexually communicable disease. See, e.g.,
Nichols v. Guy, 2 Ind. 82, 82-83 (1850) (determining an allegedly defamatory
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statement—that the plaintiff had “the clap”—was per se actionable without
proof of special damages because “[t]he ground of the action for words of this
description is the presumption that the party charged will be wholly or partially
excluded from society by reason of the charge”). Here, the alleged disclosure
did not mention whether F.B.C. tested positive or negative. Nevertheless,
because of the sensitivity of this type of information, I cannot say—as a matter
of law—the public would not be sufficiently outraged to learn that, without
permission, an insurer disclosed that F.B.C. underwent a battery of tests for
particular diseases: “HIV-1 AG W/HIV-1 & HIV-2 AB”; “CHYMD TRACH
DNA”; “N. GONORRHOEAE DNA”; “ACUTE HEPATITIS”; “HERPES
SIMPLEX”; and “HERPES SIMPLEX TYPE 2.” App. Vol. 2 at 30.
[19] The majority endorses the alleged conduct as insurance-related and “routine in
today’s technologically-driven society.” Slip op. at 6. Yet, it is not as though
the defendants gave only general information to F.B.C.’s spouse, the primary
policyholder—e.g., that “lab testing” had occurred. Rather, it is the specificity
of the information that, at this stage, provides adequate support for a claim of
Outrage. Cf. Restatement (Third) of Torts § 46 cmt. e (2012) (“Although an
actor exercising legal rights is not liable . . . merely for exercising those rights,
the actor is not immunized from liability if the conduct goes so far beyond what
is necessary to exercise the right that it is extreme and outrageous.”). Indeed, at
the very least, a reasonable fact-finder could conclude that the defendants acted
recklessly by sharing such specific information without F.B.C.’s permission:
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An actor acts recklessly when the actor knows of the risk of
severe emotional harm (or knows facts that make the risk
obvious) and fails to take a precaution that would eliminate or
reduce the risk even though the burden is slight relative to the
magnitude of the risk, thereby demonstrating the actor’s
indifference.
Restatement (Third) of Torts § 46 cmt. h (2012).
[20] Ultimately, the instant claim of Outrage is best left to a fact-finder. I would
therefore affirm the denial of the Trial Rule 12(B)(6) motion as to this claim.
[21] For the foregoing reasons, I respectfully dissent.
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