Sasser v. State Farm Ins. Co.

• Decision Date: 26 May 2021
• Docket Number: Court of Appeals Case No. 20A-CT-2068
• Citation: 172 N.E.3d 313
• Court: Indiana Appellate Court
• Parties: Deanne SASSER, Appellant/Cross-Appellee-Plaintiff, v. STATE FARM INSURANCE COMPANY and Kelly Urycki, Appellees/Cross-Appellants-Defendants.

172 N.E.3d 313

Deanne SASSER, Appellant/Cross-Appellee-Plaintiff,

v.STATE FARM INSURANCE COMPANY and Kelly Urycki, Appellees/Cross-Appellants-Defendants.

Court of Appeals Case No. 20A-CT-2068

Court of Appeals of Indiana.

Filed May 26, 2021

Publication Ordered June 18, 2021

Attorneys for Appellant/Cross-Appellee: Daniel H. Pfeifer, James P. Barth, Pfeifer, Morgan & Stesiak, South Bend, Indiana

Attorneys for Appellee/Cross-Appellant State Farm Insurance Company: Robert J. Feldt, Eichhorn & Eichhorn, LLP, Hammond, Indiana, Michael A. Warner, Jr., Erin S. Johnson, Franczek, P.C., Chicago, Illinois

Attorneys for Appellee/Cross-Appellant Kelly Urycki: Joseph P. Carlasare, Michael L. Resis, Smith Amundsen, LLC, Chicago, Illinois

Kirsch, Judge.

[1] Deanne Sasser ("Sasser") appeals the trial court's order granting summary judgment in favor of State Farm Insurance Company ("State Farm") and Kelly Urycki ("Urycki") (together, "Defendants") in her action for defamation and

breach of contract. She raises the following issues for our review:

I. Whether the trial court erred in granting summary judgment on her claim of defamation because she claims that there are genuine issues of material fact as to whether the statements at issue were actionable as defamation per se or defamation per quod; and

II. Whether the trial court erred in granting summary judgment on her claim of breach of a written contract because Sasser failed to identify or produce any written contract that was breached.

Defendants also raise the following cross-appeal issue for our review: whether the trial court erred when it denied Defendants’ motion for sanctions which, among other things, sought an order barring Sasser and her counsel from using or retaining confidential and privileged information of State Farm and its insureds in the litigation or for any purpose, ordering Sasser and her counsel to return all privileged and confidential information in their possession to State Farm without retaining any copies, and sought sanctions for fees and costs incurred by Defendants as a result of Sasser's discovery violations.

[2] We affirm and remand with instructions.

Facts and Procedural History

[3] Sasser was hired by State Farm on August 9, 1995 as a Claims Litigation Counsel ("CLC") in the Crown Point, Indiana office. Appellant's Conf. App. Vol. 2 at 79, 88. In her position as CLC, Sasser represented State Farm and State Farm insureds in personal injury litigation matters covered by insurance policies issued by State Farm. Id. at 90. Although Sasser claimed that she signed a "written contract at the time she was hired" in 1995, she did not know the terms of the contract, and a copy of this contract was not provided by either party during this dispute. Id. at 78-79, 87. Every year of her employment with State Farm, Sasser signed an acknowledgment that she had read and agreed to follow State Farm's Code of Conduct. Id. at 88, 89, 138-47. She understood that under the Code of Conduct she had an obligation to preserve the confidentiality of State Farm confidential and proprietary information. Id. at 89-90, 149-58. Sasser also understood that, as an attorney licensed in Indiana, she had additional confidentiality duties under the Indiana Rules of Professional Conduct. Id. at 90. As CLC, Sasser understood that she acted as an attorney for both State Farm and State Farm's insureds. Id.

[4] State Farm's Claim Litigation Counsel Memo 91-1 ("Memo 91-1"), which Sasser received and reviewed during her employment, further clarified the ethical obligations of CLC attorneys. Id. at 92, 160-69. Sasser understood that neither the Code of Conduct nor Memo 91-1 contained any job protection guarantee if, in her employment, she was given a direction that she believed was contrary to her own professional legal judgment or ethics. Id. at 93. If a client asked her to do something that she felt violated the Rules of Professional Conduct, she was required to refuse to do it even if it meant losing her job. Id.

[5] In her employment with State Farm, Sasser reported directly to the managing attorney of the Crown Point CLC office, a role held by Carolyn Fehring ("Fehring") since 2011. Id. at 83, 183, 188. Sasser also worked closely with State Farm's claims department and interacted with claims representatives and team managers, who supervised the claims representatives assigned to evaluate claims against State Farm and its insureds. Id. at 97-98, 101, 190-91, 209-10, 217, 225. Team managers are responsible for staying up to date on the status of a claim, questioning litigation strategy, providing authority for settlement, and providing semi-annual surveys to the managing attorneys of CLC attorneys with whom they worked to provide feedback on the quality of service received from the assigned attorney. Id. at 101, 209-10, 216, 217.

[6] Urycki worked as a team manager in State Farm's claims department. Id. at 209. From May 2000 until October 2013, she managed litigation claims that were being handled by attorneys in the Crown Point CLC office, including Sasser. Id. at 209, 214. In October 2013, Urycki was transferred to the Downers Grove, Illinois office, and from October 2013 until May 2017, Urycki did not have any interactions with Sasser or other Crown Point CLC attorneys. Id. at 98, 116, 117-18, 214, 215. In May 2017, Urycki was assigned to manage Indiana claims and resumed working with the Crown Point CLC office. Id. at 215.

[7] During the time that Urycki was working with the Crown Point CLC office, she made two allegedly defamatory statements in reference to Sasser that were made or learned of by Sasser within two years of the filing of the complaint in this action. Tr. Vol. 2 at 26-27. The first statement was purportedly made by Urycki to John Link ("Link"), a former CLC attorney who worked in the Crown Point CLC office in or around 2012. Appellant's Conf. App. Vol. 2 at 234. According to Link, in approximately 2012, he was in a meeting with Urycki and another claims representative at the Valparaiso Claims Office to discuss a file review or other project, and Urycki made a comment regarding Sasser that, "just because she has blond hair and big boobs does not make her a good attorney." Id. at 211, 234; Tr. Vol. 2 at 27. This comment did not negatively impact Link's opinion of Sasser, and Link did not report it to anyone until his deposition in the present case, which occurred in 2019. Appellant's Conf. App. Vol. 2 at 234, 235, 236.

[8] The second statement occurred in May or June 2017, shortly after Urycki again became responsible for managing Indiana claims. Id. at 215, 217. This statement was made during a telephone conference that included Sasser, Fehring, Urycki and Urycki's immediate supervisor, Mark McCaslin ("McCaslin"), and concerned the evaluation of a case that was scheduled to go to trial in August. Id. at 108-09, 192, 218. According to Sasser, after she provided her assessment of the case, McCaslin commented "it clearly looks like you don't want to take this case to trial." Id. at 109; Appellant's Conf. App. Vol. 3 at 17. The discussion then turned to whether a "sudden emergency" defense was viable, and Sasser explained why she did not believe that this was a viable defense. Appellant's Conf. App. Vol. 2 at 194, 218. Urycki commented that she thought that "any competent attorney" could obtain a defense verdict in the case, which Sasser identified as a defamatory statement by Urycki. Id. at 111; Tr. Vol. 2 at 26.

[9] On August 15, 2017, Sasser sent a nine-page letter by e-mail to Fehring and other members of State Farm CLC management, complaining about Urycki's treatment of her throughout the time they worked together. Appellant's Conf. App. Vol. 2 at 103; Appellant's Conf. App. Vol. 3 at 12-20. State Farm conducted an investigation into her complaint and concluded that the complaint was unfounded. Appellant's Conf. App. Vol. 2 at 103, 173. On August 21, 2017, one week before she was set to start trial, Sasser went on a medical leave of absence due to stress and anxiety and was unable to try the case. Id. at 112, 114, 125; Appellant's Conf. App. Vol. 3 at 23. State Farm granted Sasser's request for a leave of absence and extended her leave multiple times at her request. Appellant's Conf. App. Vol. 2 at 125 at 173-74; Appellant's Conf. App. Vol. 3 at 23. In total, Sasser was on leave for one year and seven months, which was beyond what State Farm typically provided under its internal policies. Appellant's Conf. App. Vol. 2 at 125, 173-74; Appellant's Conf. App. Vol. 3 at 23.

[10] In January 2019, State Farm offered Sasser the opportunity to return to work in a role that would not require her to work with Urycki or Fehring. Appellant's Conf. App. Vol. 2 at 121-22, 173-74, 175; Appellant's Conf. App. Vol. 3 at 25. Sasser declined this position because she stated she was still medically unable to work as an attorney in any capacity. Appellant's Conf. App. Vol. 2 at 124, 175. Because Sasser declined State Farm's offer to return to work, and had exhausted all available medical leave, State Farm terminated her employment effective March 22, 2019. Appellant's Conf. App. Vol. 3 at 23.

[11] On May 31, 2018, Sasser filed her original complaint in this matter, and she subsequently filed an amended complaint on September 18, 2018, which alleged defamation against Urycki and State Farm and breach of contract against State Farm. Appellant's Conf. App. Vol. 2 at 26-30, 31-35. Specifically, Sasser alleged that Urycki made defamatory statements about Sasser in the course of Urycki's employment with State Farm and that State Farm was responsible for the actions of Urycki. Id. at 31-33. Sasser further alleged that she had entered into a written employment agreement with State Farm in 1995, and State Farm breached this contract. Id. at 33-34.

[12] On January 25, 2019, State Farm served its First Set of Interrogatories and First Request for Production of Documents on Sasser, which sought production of all...