Snakenberg v. Hartford Cas. Ins. Co., Inc.

• Decision Date: 24 January 1989
• Docket Number: No. 1359,1359
• Citation: 299 S.C. 164,383 S.E.2d 2
• Court: South Carolina Court of Appeals
• Parties: John P. SNAKENBERG, Appellant, v. The HARTFORD CASUALTY INSURANCE COMPANY, INC., Respondent. . Heard

Page 2

383 S.E.2d 2

299 S.C. 164

John P. SNAKENBERG, Appellant, v. The HARTFORD CASUALTY INSURANCE COMPANY, INC., Respondent.

No. 1359.

Court of Appeals of South Carolina.

Heard Jan. 24, 1989.

Decided June 26, 1989.

Moss, Dore & Kuhn, Beaufort, Andrew N. Safran of Lourie, Curlee, Barrett & Popowski, Columbia, and Richard B. Ness, of Early, Kemp & Ness, Bamberg, for appellant.

Ladson F. Howell and Stephen P. Hughes, of Howell, Gibson, Boney & Hughes, Beaufort, for respondent.

"You smile and mock me, as if I meant naughtily." ¹

BELL, Judge:

This appeal raises an important question about the scope of the common law action for invasion of privacy. It arises in the form of a declaratory judgment action brought on a contract of insurance. The insured, John P. Snakenberg, seeks a declaration that the insurer, the Hartford Casualty Insurance Company, has a contractual duty to defend him against certain third party suits for invasion of privacy. The Hartford denies that Snakenberg's homeowner's policy covers the liability in question. The circuit court entered judgment for the Hartford. Snakenberg appeals. We affirm.

The facts are undisputed. Snakenberg purchased a Hartford homeowner's insurance policy for his residence in Beaufort, South Carolina. It provided both casualty and personal liability coverages. By the terms of the personal liability endorsement, the Hartford agreed:

If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage to which this coverage applies, we will:

a. pay up to our limit of liability for the damages for which the insured is legally liable; and

b. provide a defense at our expense by counsel of our choice. * * * * There followed an exclusionary clause stating that personal liability coverage does not apply to bodily injury or property damage "which is expected or intended by the insured." This appeal concerns the application of the exclusionary clause.

While the policy was in force, three teenage girls--all minors suing by a next friend--filed actions against Snakenberg for outrage and invasion of privacy. Their claims stemmed from a swimsuit "modelling session" conducted by Snakenberg on the insured premises. The complaints were substantially the same and alleged the following facts.

Snakenberg placed a want ad in the newspaper, soliciting swimsuit models at twenty-five dollars an hour. Each of the girls responded to the ad by calling the phone number listed. Snakenberg instructed each to come to his home for the modelling session. When the girls arrived, Snakenberg told them the swimsuits were in his bedroom. Using the bedroom as a dressing room, each girl modelled the swimsuits, unaware that Snakenberg had concealed a video tape camera and recorder in the dressing room and was filming and recording her changing from swimsuit to swimsuit. The girls neither authorized nor consented to let Snakenberg videotape them as they changed swimsuits. Snakenberg's actions intruded into the private activities of the girls, causing them mental suffering, shame, and humiliation.

In each instance, Snakenberg's personal attorney forwarded the complaint to the Hartford with a request that it defend the action. The Hartford refused to defend, asserting that the facts underlying the suits fell within the "intentional acts" exclusion of the policy. Because the Hartford would not defend him, Snakenberg retained his own counsel in each of the suits. The claims were ultimately settled. Thereafter, Snakenberg commenced this action against the Hartford.

I.

The applicable law can be briefly stated. The allegations of the third party complaint determine the insurer's duty to defend; and if the facts alleged in the complaint fail to bring a claim within the policy's coverage, the insurer has no duty to defend. South Carolina Medical Malpractice Liability Insurance Joint Underwriting Association v. Ferry, 291 S.C. 460, 354 S.E.2d 378 (1987).

In this case, the policy expressly excludes coverage for damages intended or expected by the insured. Such an exclusion is valid in a voluntary policy of insurance. See Rhame v. National Grange Mutual Insurance Company, 238 S.C. 539, 121 S.E.2d 94 (1961) (reasonable exclusions valid); cf., South Carolina Farm Bureau Mutual Insurance Company v. Mumford, --- S.C. ----, 382 S.E.2d 11 (Ct.App.1989) (contrasting exclusions in voluntary and mandatory insurance policies). Therefore, if the complaint against the insured alleges intentional wrongdoing, the insurer has no duty to defend.

Snakenberg acknowledges these principles of law. Indeed, he has already conceded that the Hartford has no duty to defend the girls' claims for outrage. As the gist of outrage is the intentional infliction of emotional distress, he admits it falls within the intentional acts exclusion of the policy.

On the other hand, he argues, the same principles do not apply to the causes of action for invasion of privacy. According to Snakenberg, because malice is not an element of the cause of action, invasion of privacy may be a negligent tort in some cases. He then goes on to argue that the complaints do not allege he videotaped the girls for the purpose of invading their privacy. Instead he suggests, under the pleadings it is possible he simply concealed the videotape camera and recorder as a security measure to insure that the swimsuits, which could be easily stolen, were not removed from the premises. In such an event, he contends, the intrusion on the girls' private activities would be incidental, unintentional, and, at most, negligent. Consequently, the Hartford would have a duty to defend the suits.

Snakenberg's argument has several defects, but the most fundamental is a misconception about invasion of privacy as a civil delict. Since there is often confusion about the nature of this tort, ² we take the opportunity to clarify the law.

II.

A basic purpose of the common law is to preserve the community's security and liberty by enforcing a reciprocal system of rights and duties among its members. The law assumes there can be neither security nor liberty without some restraint on the power of each person to harm the other. The law seeks to prevent harm by protecting the person, property, and obligations ³ of each member in a civil society. The security and liberty of the person have traditionally been regarded as involving so called dignitary interests, while security and liberty of property and obligation generally involve pecuniary interests. The right to privacy is one kind of dignitary interest.

The law recognizes that each person has an interest in keeping certain facets of personal life from exposure to others. This interest in "privacy" is a distinct aspect of human dignity and moral autonomy. It is embraced by the more general rights of personal security and personal liberty we have already alluded to. See Pavesich v. New England Life Insurance Company, 122 Ga. 190, 50 S.E. 68 (1905). However, in the classical common law, this privacy interest did not give rise to a separate cause of action for damages. In part, this was because many interests we now regard as rights of "privacy" were already protected by the common law in other ways. For example, if Richard Roe entered John Doe's dwelling, or opened his diary, or beset him in public, or put hands on him, Doe could sue Roe for trespass to his land, his things, or his person. Other types of intrusive conduct gave rise to additional actions for nuisance, defamation, and the like. See, e.g., Moore v. New York Elevated Railroad Company, 130 N.Y. 523, 29 N.E. 997 (1892) (nuisance); Tolley v. J.S. Fry & Sons [1931] A.C. 333 (defamation); Moore v. Rugg, 44 Minn. 28, 46 N.W. 141 (1890) (breach of implied contract).

At the beginning of this century, however, American courts began to recognize a separate tort liability for interference with another's privacy, and the right to privacy was born. Following the seminal case of Pavesich v. New England Life Insurance Company, 122 Ga. 190, 50 S.E. 68 (1905), the South Carolina Supreme Court first recognized a right of privacy in Holloman v. Life Insurance Company of Virginia, 192 S.C. 454, 7 S.E.2d 169, 127 A.L.R. 110 (1940). Although the Court has decided several "right to privacy" cases since Holloman, the common law of privacy remains largely undeveloped in South Carolina.

III.

In South Carolina, three separate and distinct causes of action can arise under the rubric of invasion of privacy: (1) wrongful appropriation of personality; (2) wrongful publicizing of private affairs; and (3) wrongful intrusion into private affairs. Rycroft v. Gaddy, 281 S.C. 119, 314 S.E.2d 39 (Ct.App.1984); Wright v. Sparrow, 298 S.C. 469, 381 S.E.2d 503 (Ct.App.1989). Although each is said to involve the "right to privacy," there are significant differences among them.

Wrongful appropriation of personality involves the intentional, unconsented use of the plaintiff's name, likeness, or identity by the defendant for his own benefit. The gist of the action is the violation of the plaintiff's exclusive right at common law to publicize and profit from his name likeness, and other aspects of personal identity.

Wrongful publicizing of private affairs involves a public disclosure of private facts about the plaintiff. The gravamen of the tort is publicity as opposed to mere publication. The defendant must intentionally disclose facts in which there is no legitimate public interest--there is no right of privacy in public matters. Additionally, the disclosure must be such as would be highly offensive and likely to cause serious mental injury to a person of ordinary sensibilities. Finally, where the plaintiff is a public figure, other considerations, including whether the defendant acted with malice, may be relevant to establishing a cause of action.

Wrongful intrusion into private affairs is the third type of invasion of privacy and the only one involved in this...