                                                                         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,

      Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019           Page 2 of 15
      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


      Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019           Page 3 of 15
              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

      Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019          Page 4 of 15
      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



      Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019        Page 5 of 15
              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.




      Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019       Page 6 of 15
[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.




      Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019           Page 7 of 15
                                                    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


       Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019                      Page 8 of 15
       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



       Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019          Page 9 of 15
       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

       Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019         Page 10 of 15
       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


       Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019          Page 11 of 15
       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

       Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019        Page 12 of 15
       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


       Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019         Page 13 of 15
       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:




       Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019           Page 14 of 15
               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.




       Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019         Page 15 of 15
