Bodah v. Lakeville Motor Express, Inc.

• Decision Date: 20 August 2002
• Docket Number: No. C5-02-276.,C5-02-276.
• Citation: 649 N.W.2d 859
• Parties: Sandra BODAH, et al., on their own behalf and on behalf of all others similarly situated, Appellants, v. LAKEVILLE MOTOR EXPRESS, INC., Respondent.
• Court: Minnesota Court of Appeals

649 N.W.2d 859

Sandra BODAH, et al., on their own behalf and on behalf of all others similarly situated, Appellants, v. LAKEVILLE MOTOR EXPRESS, INC., Respondent.

No. C5-02-276.

Court of Appeals of Minnesota.

August 20, 2002.

Alf E. Sivertson, Sivertson and Barrette, P.A., St. Paul, MN; and Thomas J. Lyons, Thomas J. Lyons, Jr., Thomas Lyons & Associates, P.A., Little Canada, MN, for appellants.

Richard L. Gill, William A. Webster, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, for respondent.

Considered and decided by PETERSON, Presiding Judge, SCHUMACHER, Judge, and MINGE, Judge.

OPINION

MINGE, Judge.

The safety director of respondent trucking company faxed a list of 204 employee names and social security numbers to 16 trucking terminals in six states. Appellants brought an invasion of privacy class-action lawsuit. The district court dismissed the complaint for failure to state a claim, ruling that the dissemination did not constitute publication to the public at large or to a substantial group of people. Appellants contend that (a) respondent's dissemination meets the established "publicity" thresholds; and (b) this court should adopt a new publicity threshold because the traditional publicity definition as applied to social security numbers was inappropriate. Because we determine that admitted and alleged facts could constitute adequate publication and shift the burden of going forward to the respondent, we reverse and remand.

FACTS

Appellants Sandra Bodah, Wayne Senne, John Tonsager, and Mark Urick are former or current employees of respondent Lakeville Motor Express, Inc. Respondent is a trucking company that does business throughout the upper Midwest. Respondent uses trucking terminals that are either wholly owned by respondent or are owned by independent trucking companies and serve as respondent's agents.

On January 4, 2001, respondent's safety director, William Frame, faxed a memo listing the names of 204 truck drivers and their social security numbers to the managers of 16 trucking terminals in six states, including several terminals that contracted with the respondent. The memo stated:

In order for the safety department to keep computer records for terminal accidents, injuries, etc. we need to have social security numbers, names, hire date, and termination date. Please review list for your terminal, add or delete accordingly. Fax back to me. Once this is done it will be just a matter of communications.

No confidentiality admonition was contained in the cover sheet. Shortly after the dissemination of this memo, appellant Tonsager confronted Frame and respondent's president, Peter Martin, about the wrongful dissemination of these social security numbers and expressed concerns about identity theft.

On May 1, 2001, Martin sent a letter to respondent's drivers and dockmen explaining that the list of drivers and their social security numbers was prepared for "insurance renewal purposes" and was "mistakenly sent to other terminals." Martin continued:

Once I learned of the problem, I instructed the Safety Department to contact the terminal managers who were sent the list, asking them to destroy or return it immediately. This was done. As far as I know, the contents of the list were not shared with anyone beyond the small group of terminal managers. I am confident that after destroying the information, they did nothing further with it. I do not know of any employee who has been hurt by disclosure of this limited information.

Appellants allege that (1) "the private information has not been redacted or erased and is still being shared or is accessible in general;" and (2) the employees had incurred and would continue to "incur costs to monitor their credit ratings and [to] take preventive measures against identity theft."

In August 2001, appellants initiated a class-action lawsuit against respondent for invasion of privacy. Respondent moved for dismissal of the complaint pursuant to Minn. R. Civ. P. 12.02(e) for failure to state a claim. Aside from the contents of appellants' complaint, there is no factual record. Respondent neither filed an answer nor furnished any affidavits. On December 11, 2001, the district court dismissed appellants' complaint holding that respondent's communication to 16 terminal managers—who were either respondent's employees or agents—constituted a private communication rather than a public one. The district court added that the actions of respondent's president directing the terminal managers to destroy or return the list negated any inference that the publication would be disseminated to the public at large. Judgment was entered, and this appeal followed.

ISSUE

Does an employer's faxing 204 employees' social security numbers to 16 managers of affiliated businesses in six states together with alleged continued sharing and accessibility of the information state a legally sufficient claim for invasion of privacy?

ANALYSIS

Standard of Review

On appeal from a dismissal for failure to state a claim upon which relief can be granted, "a reviewing court must only determine whether the complaint sets forth a legally sufficient claim for relief." Geldert v. Am. Nat'l Bank, 506 N.W.2d 22, 25 (Minn.App.1993),review denied (Minn. Nov. 16, 1993). Whether the plaintiff can prove the facts alleged is immaterial. Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn.App.2001),review denied (Minn. Feb. 19, 2002). The facts in the complaint are accepted as true, and the plaintiff has the benefit of all favorable and reasonable inferences. Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 275-76 (Minn.App. 1998). Dismissal of a complaint for failure to state a claim is only proper if there are no facts consistent with the pleading that support the relief demanded. Brakke v. Hilgers, 374 N.W.2d 553, 555 (Minn.App. 1985). An appellate court reviews the claim's legal sufficiency de novo. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).

Right of Privacy

The Minnesota Supreme Court recognized the tort of invasion of privacy in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn.1998):

Today we join the majority of jurisdictions and recognize the tort of invasion of privacy. The right to privacy is an integral part of our humanity; one has a public persona, exposed and active, and a private persona, guarded and preserved. The heart of our liberty is choosing which parts of our lives shall become public and which parts we shall hold close.

The court identified three distinct causes of action within the scope of this privacy right: intrusion upon seclusion, appropriation of name or likeness, and publication of private facts. Id. at 233. It rejected a fourth cause of action: false light publicity. Id. at 236. Its analysis drew from the Restatement (Second) of Torts. In this regard, the court observed that publication of private facts constitutes an invasion of privacy when one

gives publicity to a matter concerning the private life of another * * * if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

Id. at 233 (quoting Restatement (Second) of Torts § 652D (1977)).

The right of privacy is a relatively new concept in the law and is developing quickly. The range of situations covered by a right to privacy claim does not always fit within the Restatement categories. The Restatement itself was drafted prior to 1970 and is in some respects eclipsed by subsequent evolving caselaw. Be that as it may, our supreme court in the Lake decision used the Restatement categories in recognizing the right of privacy, and the parties in this case have proceeded on the assumption that this situation falls under the category of publication of private facts.

Two key determinations must be made incident to this cause of action: (1) whether a person's social security number is indeed a private fact; and (2) whether publication has occurred. Id.

Social Security Numbers as Private Facts

Social security numbers are broadly recognized as confidential information. The federal government and the states have passed numerous laws on the right of privacy, and courts have recognized that social security numbers are private information. See Flavio Kamuves, We've Got Your Number: An Overview of Legislation And Decisions To Control The Use Of Social Security Numbers as Personal Identifiers, 16 J. Marshal J. Computer & Info. L. 529, 531-535, 565-567 (1998). Appellants persuasively argue that social security numbers are a key to identity in our society. Unlike certain information such as medical conditions, social security numbers are not on their face revealing, compromising, or embarrassing. They are, however, such a significant identifier that they facilitate access by others to many of our most personal and private records and can enable someone to impersonate us to our embarrassment or financial loss. See generally Greidinger v. Davis, 988 F.2d 1344, 1354 (4th Cir.1993)

(stating that "the harm that can be inflicted from the disclosure of a SSN to an unscrupulous individual is alarming and potentially financially ruinous"). This is part of the so-called identity-theft phenomenon that is an increasing risk and problem in our society.

In In re Crawford, 194 F.3d 954, 958 (9th Cir.1999), the court dramatically described the problem:

In an era of rampant identity theft, concern regarding the dissemination of SSNs is no longer reserved for libertarians inveighing against the specter of national identity cards. See Greidinger at 1353 ("[A]rmed with one's SSN, an unscrupulous individual could obtain a person's welfare benefits or Social Security benefits, order new checks at a new address on that person's checking account, obtain credit cards, or even obtain a person's paycheck."). Unlike a telephone number or even a name, an individual's SSN serves as a unique identifier that cannot be changed and is not

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