AT v. State Farm Mut. Auto. Ins. Co., 97CA2020.

• Citation: 989 P.2d 219
• Decision Date: 27 May 1999
• Docket Number: No. 97CA2020.,97CA2020.
• Parties: A.T., Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeals of Colorado

989 P.2d 219

A.T., Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.

No. 97CA2020.

Colorado Court of Appeals, Div. IV.

May 27, 1999.

Certiorari Denied November 29, 1999.

Sears & Swanson, P.C., Victoria C. Swanson, Colorado Springs, Colorado, for Plaintiff-Appellant.

Seaman and Giometti, P.C., Gregory R. Giometti, Thomas J. Seaman, Denver, Colorado, for Defendant-Appellee.

Opinion by Judge NEY.

Plaintiff, A.T., appeals the summary judgment entered in favor of defendant, State Farm Automobile Insurance Company, and the court's denial of her motion to amend her complaint. We affirm.

Plaintiff, a self-employed chiropractor, sustained injuries in an auto accident. She filed three separate actions against State Farm, her insurer. Plaintiff's claim for uninsured motorist benefits was submitted to arbitration and an award was entered in her favor. The other two suits involved claims for personal injury protection and they were dismissed.

In the course of pursuing her claims, plaintiff provided medical records regarding her mental and psychological history and treatment. These records disclosed that plaintiff had been diagnosed with a psychological disorder.

Thereafter, plaintiff testified as an expert medical witness in litigation between one of her chiropractic patients and State Farm. State Farm's attorney cross-examined plaintiff, during her voir dire examination, about her psychological history and treatment, including the psychological disorder diagnosis.

Plaintiff asserted that the use of her medical history by State Farm was not authorized and brought this action against State Farm based on disclosure of confidential information. Her amended complaint includes five causes of action: extreme and outrageous conduct, intentional interference with a contractual relationship, bad faith breach of contract, breach of fiduciary duty, negligence, and breach of a confidential relationship.

Plaintiff then moved to amend her complaint to include the claim of invasion of privacy. State Farm moved for summary judgment and plaintiff filed a cross-motion for summary judgment. After a hearing on these motions, the trial court granted summary judgment in favor of State Farm, and denied plaintiff's motion to amend her complaint.

I.

The threshold issue is whether the trial court erred, as a matter of law, by determining that plaintiff's medical information disclosed during the uninsured motorist benefits arbitration was not confidential. Plaintiff argues that the arbitration proceeding was private and that the disclosed information is confidential. We disagree.

Because the facts of the case are undisputed and the court disposed of defendant's other arguments, the determinative legal issue for the trial court was whether the information disclosed in the arbitration proceeding was confidential.

The court found that the parties had not entered into a confidentiality agreement or disclosure-restriction provision regarding the arbitration. No protective order was sought by plaintiff or obtained from the arbitrators or the court. The court found that this arbitration was not conducted under the rules of the American Arbitration Association, which would have provided confidentiality, but rather, under the Uniform Arbitration Act of 1975, § 13-22-201, et seq., C.R.S.1998, which is silent on confidentiality.

The court concluded that because the arbitration statute provides that an arbitration award can be filed, enforced, and challenged in court, an arbitration record may become an open public record. Therefore, because the plaintiff did not obtain a confidentiality or protective order or agreement, the record was available for use by State Farm in later, separate litigation. Because the trial court's factual findings are undisputed and we agree with its conclusions of law, we conclude that the summary judgment was proper. See Walcott v. Total Petroleum, Inc., 964 P.2d 609 (Colo.App. 1998)

.

There is a presumption that the public has access to court records. Anderson v. Home Insurance Co., 924 P.2d 1123 (Colo. App.1996).

Because an arbitration record is potentially public in nature and plaintiff failed proactively to preserve it as confidential, we agree with the trial court's conclusion that the plaintiff's medical information disclosed in the arbitration proceeding was not confidential.

We also agree with the trial court's qualification that its conclusion does not render the entire arbitration akin to a public record available to anyone for any purpose. We hold only that the arbitration record, under the facts here, was available to defendant to use in another unrelated case in which plaintiff was involved.

Accordingly, because all of the plaintiff's claims in her first amended complaint essentially depend on the disclosed information being confidential, the trial court was correct in concluding that all such claims fail.

II.

Plaintiff also contends that the trial court committed reversible error by denying her motion to amend her complaint to include the claim of invasion of privacy. Again, we disagree.

The plaintiff's claim of invasion of privacy relies on Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo.1997), which concluded that invasion of privacy based on the unreasonable publication of one's private life is a cognizable tort. However, an element of that tort is that the published information is private. See Ozer v. Borquez, supra.

The trial court concluded, on undisputed evidence, that the information was disclosed in an arbitration that was not made private or confidential. Therefore, the plaintiff waived, at least as to State Farm's use, the confidentiality that might otherwise attach to that information. The trial court therefore concluded that the claim of invasion of privacy would necessarily fail.

We agree with the trial court's conclusion that because the disclosed information was no longer private, plaintiff's claim of invasion of privacy would fail. Thus, the court's refusal to permit amendment of the complaint to include such claim was not erroneous.

The judgment and order are affirmed.

Judge RULAND concurs.

Judge ROTHENBERG concurs in part and dissents in part.

Judge ROTHENBERG concurring in part and dissenting in part.

Insofar as plaintiff's allegations were based on the disclosure of confidential information, I agree with the majority that summary judgment was properly entered in favor of State Farm Insurance Company. However, I would reverse the trial court's order denying plaintiff leave to file her amended complaint, which asserted a claim of invasion of privacy.

Motions to amend should be freely granted. See C.R.C.P. 15; Passe v. Mitchell, 161 Colo. 501, 423 P.2d 17 (1967). Further, here, the plaintiff's motion to amend to add a new cause of action was based on the supreme court's then recent holding in Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371 (Colo.1997).

In Borquez, the court joined the majority of jurisdictions that have recognized a tort claim for invasion of privacy in the nature of unreasonable publicity given to one's private life. The court held that the following elements must be proved in order to prevail on such a claim: (1) the fact or facts disclosed must be private in nature; (2) the disclosure must be made to the public; (3) the disclosure must be one which would be highly offensive to a reasonable person; (4) the fact or facts disclosed cannot be of legitimate concern to the public; and (5) the defendant acted with reckless disregard of the private nature of the fact or facts disclosed.

Importantly, Borquez did not require that the fact or facts disclosed by defendant be confidential, only that they be private in nature. The difference is significant.

Generally, confidential communications are those made under such circumstances that the law regards them as privileged, or under circumstances where one party is duty bound to act with the utmost good faith for the benefit of the other party. See § 13-90-107, C.R.S.1998 (describing particular relations "in which it is the policy of the law to encourage confidence and to preserve it inviolate...."); Colorado State Board of Accountancy v. Raisch, 960 P.2d 102 (Colo.1998) (accountant-client privilege prevented Colorado State Board of Accountancy from obtaining confidential accountant-client communications); People v. Agado, 964 P.2d 565 (Colo.App.1998)(rejecting claim of common law privilege based upon confidential nature of specific communications between parent and child).

The requirement that information be "private in nature" is considerably broader and may include, as alleged here, the disclosure of facts relating to an embarrassing mental condition. In fact, the supreme court acknowledged this specific circumstance in Robert C. Ozer, P.C. v. Borquez, supra, 940 P.2d at 377, when it stated that:

[f]acts related to an individual's sexual relations, or unpleasant or disgraceful illnesses, are considered private in nature and the disclosure of such facts constitutes an invasion of the individual's right of privacy.

Hence, one's...