Fiorillo
v.
Berkley Administrators

Connecticut Superior Court, Judicial District of New Haven at New HavenMay 5, 2004
2004 Ct. Sup. 7354 (Conn. Super. Ct. 2004)
2004 Ct. Sup. 735437 CLR 62

No. CV-01-0458400 S

May 5, 2004


MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#115) AND MOTION FOR SUMMARY JUDGMENT (#117)


ARNOLD, JUDGE.

The defendants Berkley Administrators and Countermeasures Security Investigations, LLC, have each filed a motion for summary judgment with respect to the plaintiff's invasion of privacy claim dated November 21, 2001. The defendants claim that there are no genuine issues of material fact because as a matter of law, the surveillance of the plaintiff requested by Berkley and conducted by Countermeasures did not include an intrusion into a private place or private matter. Berkley argues in addition that even if the surveillance conducted by Countermeasures was an invasion of privacy, Countermeasures was an independent contractor, for whose acts Berkley was not liable. Countermeasures, while agreeing with Berkley that the surveillance tactics utilized by it did not amount to an invasion of the plaintiff's privacy, does not agree that its status was that of an independent contractor, as Berkley contends.

The facts reveal that on or about January 31, 1995, the plaintiff was allegedly injured at her place of employment and filed a Workers' Compensation claim against her employer, the City of Bridgeport. The City of Bridgeport, in turn, retained Berkley, a third-party claims administrator, to adjust, defend and contest the plaintiff's claim. Berkley, thereafter, retained investigation firms, including Countermeasures, to conduct surveillance of the plaintiff to determine if she had secured other employment and to determine the extent of her functional disabilities.

In the course of this surveillance conducted by Countermeasures and others, the plaintiff was periodically observed outside her home, at her church and on public streets over the period of twenty-one months. The employees of Countermeasures admittedly entered the church several times to determine the schedule of events there and to determine if the plaintiff was teaching classes there. The defendants also agree that employees of Countermeasures had a telephone conversation with the church's pastor to determine if the plaintiff was a paid employee of the church. The defendants argue that investigators did not enter into the worship area of the church or intrude upon church services or the plaintiff's worship or prayer activities. Videotape of the surveillance was made to observe the plaintiff driving and walking on public streets, transporting children to and from school, going to and from church and shopping at public businesses. The plaintiff was also observed around the area of her home, but the defendants deny that the plaintiff's property was entered at those times.

The plaintiff claims in her objection to the motion for summary judgment that investigators for Berkley followed her from November 30, 1996 to August 16, 2001, and that employees of Countermeasures participated in this surveillance from January 2000 to August 16, 2001. She "believes" that they entered her property on "at least one occasion," and that investigators entered her church to take video pictures or "to see what I did in the church." She claims that the actions of the defendants were "outrageous, offensive and unreasonable" and have caused her great emotional upset. The plaintiff claims that these actions were an intentional interference with her interest in solitude and seclusion.

The standard of law for determining a motion for summary judgment is well-established. "A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994).

The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally find in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).

There is substantive support today for the conclusion that privacy is a basic right entitled to legal protection. Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 487, 95 S.Ct. 1029, 43 L.Ed.2d; Anderson v. Drapp, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 03 040 27 37, (September 5, 2003) (Doherty, J.), 35 Conn. L. Rptr. 415.

In Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127-28, 438 A.2d 1317 (1982), set forth the categories for invasion of privacy. "The four categories of invasion of privacy are set forth in 3 Restatement (Second), Torts 652A as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." Id. "Similarly, Prosser lists the four rights of privacy as (1) appropriation, for the defendant's benefit or advantages, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's physical solitude or seclusion; (3) publicity, of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation; and (4) publicity which places the plaintiff in a false light in the public eye. (Internal quotation marks omitted) Id.; citing Prosser, Torts (4th Ed. 1971) 117, pp. 804-15; Prosser, "Privacy," 48 Cal.L.Rev. 383 (1960). In Goodrich, supra, the court held, "the right of privacy, which this court has not previously recognized, has been defined as the right to be let alone." Prosser, Torts (4th Ed. 1971) 117, p. 802; 3 Restatement (Second), Torts 652 A. "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." 3 Restatement (Second) of Torts, Sec. 652B (1997). The plaintiff's claim falls into the category of an unreasonable intrusion upon the seclusion of another and an intrusion upon the plaintiff's physical solitude or seclusion.

The defendants do not deny that there is a cause of action in Connecticut for invasion of privacy by an unreasonable intrusion upon the seclusion of another. They argue, however, that the actions of the defendants are not highly offensive to a reasonable person nor whether there was an invasion into a private seclusion. The court agrees with the defendants.

To be liable for intrusion into seclusion, the defendants must invade the privacy of the plaintiff in such a way that the "intrusion would be highly offensive to a reasonable person." Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 99 066603 (February 4, 2000, Nadeau, J.), 26 Conn. L. Rptr. 368. "The defendants must have intruded into a private place or otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs." Id. There is no intrusion into seclusion where the matters observed are those "exhibited to the public gaze." Gallagher v. Rapoport, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 149891 (May 6, 1997, D'Andrea, J.) ( 19 Conn. L. Rptr. 474); Benton v. Simpson, Superior Court, judicial district of Fairfield at Bridgeport, No. CV 01 38 56 75 5 (Sep. 18, 2002, Rush, J.).

The surveillance of the plaintiff was limited to observations of acts that took place in public. The plaintiff was in plain view of the public and was not videotaped or viewed in a private place or in a manner that revealed her private affairs so as to be outrageous, highly offensive or unreasonable. The plaintiff made a Workers' Compensation injury claim and she must expect that the employer and its insurers, adjusters and administrators would make an investigation of the claim to determine its validity.

The plaintiff was very offended that surveillance took place at her church. In Creel v. I.C.E. Associates, 771 N.E.2d 1276 (Ind.App. 2002), the court ruled that a church is a public place in which no interest of seclusion exists. Creel involved a factual situation where the plaintiff, Myra Creel was involved in an auto accident. As an employee of a hospital, she participated in its group long-term disability insurance plan. As a result of the injuries she sustained in the motor vehicle collision, Creel sought to collect long-term disability benefits under the policy. The insurer initially made payments to Creel following the accident. Thereafter, the insurer determined that she was no longer eligible for benefits under the policy and discontinued payments. Creel responded by seeking administrative review of the insurer's action.

As part of its administrative review of Creel's appeal, the insurer commissioned I.C.E., which was a licensed private detective agency, to conduct surveillance and videotape Creel's activities to confirm her unemployment and to ascertain whether her activities were consistent with her medical diagnosis and disability determination. Among other things, the insurer instructed I.C.E. to videotape Creel's activities during services at her church.

On two occasions, an investigator presented himself as a worshipper at scheduled church services at Creel's church. Each time, the investigator wore a sling on his arm that concealed a video camera. No signs were posted indicating that only church members or invitees could attend or prohibiting videotaping within the church. During the church service, Renner covertly videotaped Creel as she played piano on a stage in front of the congregation. The investigator did not inform Creel about his videotaping and surveillance activities, nor did he seek the church's or Creel's permission to videotape during church services.

When this surveillance was discovered by Creel she filed suit alleging an invasion of privacy and intentional infliction of emotional distress by I.C.E. in surreptitiously videotaping her during the church worship services. I.C.E. filed a motion for summary judgment, asserting that there were no genuine issues of material fact concerning its lack of intent to inflict emotional distress upon Creel and its lack of a physical intrusion upon her. The trial court granted I.C.E.'s motion for summary judgment.

In upholding the trial court, the court in Creel v. I.C.E. Associates, supra, ruled that Creel was not in a private area of the church and nor was she secluded when the taping took place. The church was open to the public. The investigator in Creel had no physical contact with the plaintiff Mrs. Creel, and at no time did he film into any closed area or area not visible from the public view by other church members. The court, thus, concluded as a matter of law that the plaintiff Creel had no reasonable expectation of privacy in her activities at the church.

In the present case, a review of affidavits submitted by Berkley and Countermeasures reveal that an investigator went to the plaintiff Fiorillo's church on February 8, 2000, and videotaped her entering and exiting the church building. The investigator then entered the church and proceeded to go to the lower basement area that was being used as a school. At no time while the investigator was in the building, did he view or tape the plaintiff, and at no time did he follow the plaintiff into the worship area of the church. A second affidavit from a non-defendant investigation company reveals that on one occasion in late 1999, its investigator also entered the church, but had no contact or direct communication with the plaintiff. This investigator, as well, did not intrude into the worship area of the church or the plaintiff's worship or prayer activities.

The court finds that the activities of the defendants, as a matter of law, do not amount to an intrusion into the plaintiff's seclusion. The investigation and surveillance of the plaintiff was routine in nature and reasonable for the purposes of evaluating the plaintiff's workers' compensation claim. The length of time the surveillance and investigation occurred was not unreasonable to determine the credibility of the plaintiff's claim. The investigation was not excessive. The only evidence that the plaintiff submitted regarding the claim that the defendants entered her property was her affidavit stating that "she believes" that on one occasion they did so. That is insufficient to establish a genuine issue of material fact.

The court does not address whether or not Countermeasures was an independent contractor as Berkley claims because it is determined that the surveillance conducted by Countermeasures was not an intrusion into seclusion and was not highly offensive to a reasonable person.

Accordingly, the motions for summary judgment filed by Berkley Administrators and Countermeasures Security Investigations, LLC, are both hereby granted.

THE COURT

By Arnold, J.