Allstate Ins. Co. v. Ginsberg

• Decision Date: 18 September 2003
• Docket Number: No. SC00-2614.,SC00-2614.
• Citation: 863 So.2d 156
• Parties: ALLSTATE INSURANCE COMPANY and Allstate Indemnity Company, Appellants, v. Victor GINSBERG and Elaine A. Scarfo, Appellees.
• Court: Florida Supreme Court

863 So.2d 156

ALLSTATE INSURANCE COMPANY and Allstate Indemnity Company, Appellants, v. Victor GINSBERG and Elaine A. Scarfo, Appellees.

No. SC00-2614.

Supreme Court of Florida.

September 18, 2003.

Lori J. Caldwell and David B. Shelton of Rumberger, Kirk & Caldwell, P.A., Orlando, FL, for Appellant.

Douglas H. Stein and Maurice J. Baumgarten of Anania, Bandklayder, Blackwell, Baumgarten & Torricella, Miami, FL; and Martha A. Chapman, Orlando, FL, for Appellees.

Richard E. Johnson, Tallahassee, FL; and Carol Swanson, Orlando, FL, for the National Employment Lawyers Association, Florida Chapter, Amicus Curiae.

PER CURIAM.

We have for consideration several issues of Florida law certified by the Eleventh Circuit Court of Appeals that are asserted to be determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

This case involves a declaratory decree action, which is proceeding in the federal court. The underlying tort action is proceeding in the state courts of Florida. In Allstate Ins. Co. v. Ginsberg, 235 F.3d 1331, 1333 (11th Cir.2000), the Eleventh Circuit reviewed a summary judgment holding that appellants Allstate Insurance Company and Allstate Indemnity Company (Allstate) had no duty to defend a state court complaint against its insured, appellee Victor Ginsberg, for invasion of privacy because the complaint failed to state a privacy claim. In its opinion, the Eleventh Circuit summarized the litigation history of this case:

From November 1991 until September 1992, Elaine A. Scarfo was employed as a secretary for various Florida corporations owned by Victor Ginsberg. Prior to that time, from approximately November 1987 until November 1991, Scarfo worked for her husband without pay at Ginsberg's corporation. On September 18, 1992, Scarfo was terminated. In 1993, Scarfo filed a federal civil rights action against Ginsberg in the United States District Court for the Southern District of Florida, alleging that from approximately 1988 and throughout her employment, Ginsberg subjected her to unwelcome offensive conduct, including physical touching and comments of a sexual nature. In addition, Scarfo's complaint included common law tort claims for battery, intentional infliction of emotional distress, and invasion of privacy.

During the time of the actions alleged by Scarfo, Ginsberg was covered under a Personal Umbrella Policy issued by Allstate, which applies to an "occurrence" anywhere in the world while the insurance is in force. In 1995, Ginsberg tendered the defense of the action to Allstate, demanding that Allstate indemnify him for any potential liability.

Allstate, in providing a defense to the actions under a reservation of rights, filed a declaratory judgment action seeking a determination whether Allstate's policies cover the claims alleged by Scarfo against Ginsberg. In 1997, the district court dismissed Scarfo's federal civil rights action on jurisdictional grounds, and dismissed Scarfo's state law claims without prejudice. The Eleventh Circuit affirmed the dismissal in Scarfo v. Ginsberg, 175 F.3d 957 (11th Cir.1999). Scarfo re-filed her claims against Ginsberg in the state court as common law torts.

The Personal Umbrella Policy in this case provides as follows:

Coverage—When we Pay

Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence.

The policy defines "Personal Injury" as follows:

(a) bodily injury, sickness, disease or death of any person. Bodily injury includes disability, shock, mental anguish and mental injury.

(b) false arrest; false imprisonment; wrongful detention; wrongful entry; invasion of rights; invasion of occupancy; or malicious prosecution;

(c) libel, slander, misrepresentation; humiliation; defamation of character; invasion of rights of privacy; and

(d) discrimination and violation of civil rights, where recovery is permitted by law. Fines and penalties imposed by law are not included.

(Emphasis added.)

The parties filed cross motions for summary judgment, raising the question whether Scarfo properly alleged an invasion of privacy, thereby triggering Allstate's duty to defend. On April 21, 1999, the district court issued an order granting summary judgment in favor of Allstate. The district court concluded that Scarfo's allegations of unwelcome conduct did not state a cause of action for invasion of privacy under the relevant category of that tort identified by the Supreme Court of Florida as "intrusion—physically or electronically intruding into one's private quarters." Agency for Health Care Admin. v. Assoc. Indus. of Florida, Inc., 678 So.2d 1239, 1252 (Fla.1996), cert. denied, 520 U.S. 1115, 117 S.Ct. 1245, 137 L.Ed.2d 327 (1997).

Because the Supreme Court of Florida had never directly considered whether intrusion into "one's private quarters" included unwelcome conduct directed to one's physical person, the district court looked to the Florida intermediate courts for guidance and noted that the intermediate courts appeared divided on that question. The district court concluded that the approach taken by Florida's Fourth District Court of Appeal was more in accord with the category of intrusion identified by the Supreme Court of Florida. Thus, based on the Fourth District's rationale in Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA 1980), the district court concluded that the invasion of privacy tort could not be "construed so broadly as to include a battery occurring in the workplace absent an intrusion into a place where the victim has a reasonable expectation of privacy." The district court held that Allstate had no duty to defend, and granted summary judgment in favor of Allstate. This appeal and cross-appeal followed.

Id. at 1333-34 (footnote omitted).

In view of this Court not having ruled on the precise issue framed by the Eleventh Circuit, the Eleventh Circuit certified four questions to this Court. The questions certified are:

DO PLEADINGS OF UNWELCOME CONDUCT INCLUDING TOUCHING IN A SEXUAL MANNER AND SEXUALLY OFFENSIVE COMMENTS STATE A CAUSE OF ACTION

FOR THE FLORIDA COMMON LAW TORT CLAIM OF INVASION OF PRIVACY?

DO ALLEGATIONS OF INTENTIONAL UNWELCOME CONDUCT INCLUDING TOUCHING IN A SEXUAL MANNER AND SEXUALLY OFFENSIVE COMMENTS CONSTITUTE AN "OCCURRENCE" UNDER FLORIDA LAW FOR PURPOSES OF INSURANCE COVERAGE?

DO PLEADINGS OF UNWELCOME CONDUCT INCLUDING TOUCHING IN A SEXUAL MANNER AND SEXUALLY OFFENSIVE CONDUCT FALL WITHIN THE BUSINESS EXCEPTION TO COVERAGE WHEN THE ALLEGED CONDUCT OCCURRED IN THE WORKPLACE IN THE CONTEXT OF AN EMPLOYER-EMPLOYEE RELATIONSHIP BUT DID NOT PERTAIN TO THE PURPOSE OF THE BUSINESS?

ARE ALLEGATIONS OF INTENTIONAL INVASIONS OF PRIVACY EXCLUDED FROM COVERAGE BY AN INTENTIONAL ACTS EXCEPTION WHEN THE POLICY EXPRESSLY PROVIDES COVERAGE FOR INVASIONS OF PRIVACY?

Id. at 1337-38.¹ We assume for the purpose of answering the certified questions that the pleadings to which the first certified question refers are the allegations set forth in the complaint of appellee Elaine A. Scarfo:

6. On or about November 1991, Plaintiff began her employment with the corporate Defendants as a secretary and was employed in that position until her discharge on September 18, 1992.

7. From approximately 1988 and throughout her employment with the corporate Defendants which ended in September 1992, Plaintiff was subjected to ongoing and pervasive, sexually offensive, unwelcome conduct by Defendant GINSBERG, who was Plaintiff's direct supervisor. These actions included the unwelcome touching of her body and being subjected to unwelcome sexually oriented comments and actions during and after working hours on an ongoing and repeated basis.

8. On repeated objections, Defendant GINSBERG physically touched Plaintiff in a sexually offensive and unwelcome manner, including kissing her, rubbing her shoulders and her back and touching her breasts, and forcing her to touch his penis.

9. Plaintiff repeatedly indicated to Defendant GINSBERG that such remarks and touching were not welcomed by her.

....

CLAIMS FOR RELIEF

....

C. THIRD CLAIM FOR RELIEF— INVASION OF PRIVACY

....

24. Defendant GINSBERG, individually and in his capacity as President and Director of corporate Defendants and related corporations, invaded Plaintiff's privacy by intruding into Plaintiff's solitude in an offensive and objectionable manner which would cause mental distress and injury to a reasonable person having ordinary dealings and sensibilities.

25. As a direct and proximate cause of Defendant GINSBERG's actions, Plaintiff was injured and suffered great damages to both her physical and mental well-being.

We conclude that these pleadings do not state a cause of action for the common law tort claim of invasion of privacy under Florida law. In view of this conclusion, we decline to answer the remaining questions because those questions assume that the pleadings do state a cause of action under Florida law for invasion of privacy.

ANALYSIS

In Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944), this Court first recognized the tort of invasion of privacy as a distinct cause of action in Florida. In that case, the plaintiff, a private person who claimed that publicity was extremely distasteful to her, brought an invasion of privacy claim against a well-known author, Marjorie Kinnan Baskin (also known as Marjorie Kinnan Rawlings), who had published a book which contained a biographical sketch of the plaintiff. The plaintiff alleged that the book personally violated her right to privacy by exposing private facts about her to the public. Cason, 20 So.2d at 245. This Court adopted the then recent reasoning of two legal scholars that allegations that the book published an intimate character sketch of the plaintiff could constitute a prima facie case of invasion of the plaintiff's right to privacy. Id....