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Divided COA rules for insurer who posted STD tests online

April 16, 2019

A woman fighting for her marriage failed to convince a divided appellate panel that her insurance company ruined her chances of reconciling the relationship when it posted a list of her recent STD testing to its web portal.

While attempting to reconcile her marriage, F.B.C. was tested for various sexually transmitted diseases. Her insurer, MDwise, posted the list of the diseases F.B.C. was tested for on its portal, which her husband accessed.

After he read the list, F.B.C. alleges her husband refused to continue reconciliation and proceeded with the pending divorce as a result of MDwise’s posting of the statement. She thus filed a suit against MDwise, claiming disclosure of private facts to a particular public, intrusion and outrage.

The Marion Superior Court granted a motion to dismiss the disclosure and intrusion claims, but not the outrage claim. On appeal, F.B.C. argued the trial court erroneously dismissed her claims of disclosure and intrusion, while MDwise challenged the denial of its motion to dismiss F.B.C.’s outrage claim.

A divided Indiana Court of Appeals concluded all three claims should have been dismissed as a matter of law in "F.B.C.", a Pseudonym v. MDWISE, INC., d/b/a MDWISE, MDWISE NETWORK, INC., and MDWISE MARKETPLACE, INC., 18A-CT-1934.

First, the majority of the appellate court disagreed with F.B.C.’s contention that the disclosure claim was erroneously dismissed, noting the tort of disclosure is not yet recognized in Indiana. Specifically, the majority referenced the 1997 case of Doe v. Methodist Hospital, 690 N.E.2d 681, 693, in which the Indiana Supreme Court declined to adopt disclosure as an actionable claim. It also noted disclosure is a sub-tort of invasion of privacy.

The appellate majority further noted the COA has specifically chosen not to recognize claims of intrusion in which the intrusion only invades a person’s emotional solace, and similarly concluded the trial court did not err in that regard.

However, the appellate court did find error in the trial court’s acceptance of F.B.C.’s outrage claim, finding MDwise’s conduct – posting the list of tested STDs online – was not extreme and outrageous.

“This is not conduct which is utterly intolerable in a civilized community but, rather, routine in today’s technologically-driven society,” Judge Cale Bradford wrote for the divided panel, with Judge Elaine Brown concurring. “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.”

But Judge L. Mark Bailey dissented from the majority in a separate opinion, arguing that all three of F.B.C.’s claims were actionable. If given the chance, Bailey contended, the Indiana Supreme Court would recognize the torts of public disclosure of private facts, the sub-tort of disclosure to a particular public and intrusion into emotional solace.

Bailey further argued F.B.C. did not fail to allege facts supporting her outrage claim due to the sensitivity of the issue at hand.

“The majority endorses the alleged conduct as insurance-related and ‘routine in today’s technologically-driven society,’” Bailey opined. “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.”

“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… .”

Nonetheless, the case was reversed in part and remanded with instruction to dismiss F.B.C.’s outrage claim.

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