Tureen v. Equifax, Inc.

• Decision Date: 21 February 1978
• Docket Number: No. 77-1420,77-1420
• Citation: 571 F.2d 411
• Parties: Bernard H. TUREEN, Appellee, v. EQUIFAX, INC., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 411

571 F.2d 411

Bernard H. TUREEN, Appellee, v. EQUIFAX, INC., Appellant.

No. 77-1420.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 18, 1977.

Decided Feb. 21, 1978.

G. Carroll Stribling, Jr., Fordyce & Mayne, St. Louis, Mo., for appellant.

Bruce M. Wurmser (argued), and Theodore D. Ponfil, Clayton, Mo., on brief, for appellee.

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and HUNTER, District Judge. ^*

ELMO B. HUNTER, District Judge.

Bernard H. Tureen brought this action for damages resulting from an alleged invasion of his privacy by Equifax, Inc. (hereinafter "defendant"). Jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332. Defendant appeals from a jury verdict in favor of plaintiff and against defendant in the amount of $5,000. The relevant facts are as follows.

During 1973 and 1974, plaintiff maintained a health insurance policy with the All-American Insurance Company. In 1973, he suffered a heart attack and in July of that year made a claim for health insurance benefits. Again in February of 1974, following a second heart attack, plaintiff made a claim of disability. All-American employed defendant to investigate each of plaintiff's claims. Defendant is an independent consumer reporting firm engaged in the business of investigating and providing information upon request to assist merchants, employers, insurers, etc. in making determinations as to whether to extend credit, hire, insure, etc. a given individual. Defendant conducted its investigation of plaintiff's second claim and issued a report to All-American. That report gives rise to this action.

Plaintiff's second claim was received by All-American in the form of a letter from one of plaintiff's employees. Upon receipt of the letter, Raymond Sawaicki, a claims adjuster for All-American, issued a written request, on a standard form supplied by defendant, for defendant to investigate the question of whether or not plaintiff was totally disabled and therefore entitled to disability insurance benefits. The request form consisted of a series of boxes which could be checked as to the type of investigation requested, and a space in which specific investigation instructions could be given. Sawaicki checked the box for a "special health" investigation, and further requested specifically that defendant make a detailed investigation as to plaintiff's business activities in St. Louis, his business holdings and his degree of participation in the management of his businesses in St. Louis and Florida during the period in question. ¹

On the back of the request form was printed information which directed that in the event a special health investigation was called for, it should answer the questions raised in Equifax Form 37 of the claim investigation report. Form 37 contains the following question:

Claim or underwriting history. (Give all claim history. Give life and health underwriting history to life and health accounts only not to claim or loss accounts. Auto insurance history may be given to all accounts. If already given, so state: Do not repeat.)

The report submitted to All-American by defendant stated:

FILE DIGEST: A thorough check of our files reveals no previous claim history on Bernard H. Tureen. The last underwriting report was a special life report done on 6-13-68. This report was for Connecticut Mutual Life Insurance Co., 140 Garden St. Hartford, Conn. 06115. The inspection showed Bernard H. Tureen residing at 100 S. New Ballas Road and his occupation was given as President of the American Duplex Corp. 3450 Russell, St. Louis, Mo. Amount applied for was $100,000 and at the time he was carrying $400,000. Beneficiary was the American Duplex Corp. of which he was President.

Insurance history indicates we had reported on 23 occasions to various account numbers for life insurance going back to 1949. Total amount applied for for (sic) life was in excess of $10,000,000 * * *.

We are not quoting the remainder of the 23 insurance companies due to their age. However, if you desire a supplemental listing of these underwriting reports, please advise and we will put this together for you at a later date.

Upon receipt of defendant's report concerning plaintiff, All-American retained the report in its claim department and did not disseminate it to any other persons.

Plaintiff brought this action originally in two counts, one alleging invasion of his privacy as a result of the investigative report, and the second alleging that the report's statements concerning his past insurance history were libelous. Due to the running of the statute of limitations on libel, that count was dismissed as time-barred, and the case proceeded to trial solely on the issue of invasion of privacy.

At the trial, Robert B. Stinson, defendant's insurance claims supervisor who reviewed the final report prior to its being forwarded to All-American, testified that the Equifax Form 37, containing plaintiff's insurance history, was filled out because a special health report had been requested. He stated that insurance companies often find insurance history helpful and necessary to learn of other carriers with coverage on the same risk. Mr. Sawaicki, who issued the written request to defendant, testified that he did not specifically request a report on plaintiff's past insurance history as a part of the investigation, and that he generally weighs each case as to whether past insurance history will be requested. He stated that All-American did not suspect any fraud or misrepresentation on the part of plaintiff in connection with his claim for disability insurance benefits. Sawaicki further testified that he did intend the investigation of plaintiff's claim to include everything which was included on the request form.

Robert C. Nixon, defendant's employee who investigated and answered the questions contained on defendant's Form 37, testified that he did so by going to defendant's file on plaintiff, pulling the last several insurance reports which had been made, and listing the information contained within the last report. Mr. Nixon stated that prior underwriting history is a standard item routinely reported upon at the request of insurance companies faced with claims.

Over defendant's objection as to relevancy, plaintiff was allowed to testify that he had not applied on 23 prior occasions for $10,000,000 worth of life insurance, as stated in defendant's report. Plaintiff asserted that he had made at most eight to ten applications for insurance from 1931 to the date of the trial, and that the total value of all such applications had not been over half a million dollars. He stated that the language of the report caused him great anguish because it made him look like a potential suicide. He also testified that the report had upset him and caused him great concern and loss of sleep.

At the close of all the evidence, defendant filed its Motion for Directed Verdict. Reserving its ruling on defendant's motion, the district court submitted the case to the jury on the following instruction:

Plaintiff, Mr. Tureen, must establish by a preponderance of the evidence: (1) that the information contained in the investigative report stamped March 19, 1974, relating to his past applications for life and health insurance, was not reasonably needed to determine whether the claim for Mr. Tureen's illness was justified; and (2) that defendant's conduct was such that it was offensive, unreasonable, serious and unwarranted to a person of ordinary sensibilities.

Counsel for defendant expressly did not object to the law as expressed in that verdict-directing instruction, but did object that there was no evidence in the record to support the giving of the instruction. The trial court further instructed the jury that:

If you find the issues in favor of the plaintiff then you must award the plaintiff such sum as you find will fairly and justly compensate the plaintiff for any damages you find Mr. Tureen sustained and is reasonably certain to sustain in the future as a direct result of the investigation of the report of March 19, 1974.

Defendant objected to the damage instruction on the basis that there was no evidence of damage to plaintiff, and no evidence of any future damage.

Following the jury's verdict for plaintiff, defendant filed its Motion for Setting Aside Verdict and Judgment in Accordance With Motion for a Directed Verdict or in the Alternative Motion for a New Trial. This timely appeal followed a denial of defendant's motion.

Defendant first contends that the trial court erred in denying defendant's motion for directed verdict at the close of the evidence. We agree.

The origin of the tort of invasion of privacy is commonly traced to an article by Warren and Brandeis in the Harvard Law Review of 1890, ² which was prompted by the authors' concern with the invasion of privacy by newspapers. ³ Their concern also extended to other aspects of their "modern" society:

If we are correct in this conclusion (the existence of a right to privacy based on an inviolate personality), the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds.

Warren and Brandeis, supra at 206.

The basis of the right of privacy is the right to be let alone. Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291, 294 (1942). See Restatement (Second) of Torts § 652A, at 376 (1977); W. Prosser, Handbook of the Law of Torts § 117, at 832 (4th ed. 1971). It has been suggested that what is actually involved is "appropriation of an interest in personality * * * which recognizes that the individual does not exist solely for the state or society but has inalienable rights which cannot be lawfully taken from him, so long as he behaves properly." Barber v. Time, Inc., supra, 159 S.W.2d at...