"F.B.C.", a Pseudonym v. MDWISE, INC., d/b/a MDWISE, MDWISE NETWORK, INC., and MDWISE MARKETPLACE, INC.

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.

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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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