February 01, 2007

Workers’ Compensation Claim Leads to Civil Action Based on Intrusion Upon Seclusion

February 01, 2007

James Burns, Jr. v. Masterbrand Cabinets, et al No. 4-06-0296

What type of claim is intrusion upon seclusion?  What does it have to do with workers’ compensation?  Before those questions can be answered, one would need a list of characters involved in this scenario.  They are best described in an appellate court decision brought by James Burns.

On April 3, 2000, Burns sustained a back injury while employed by Masterbrand Cabinets, Inc., who then retained the services of Gallagher Bassett to adjust the claim and manage the litigation.  Gallagher Bassett then engaged Metro Private Investigations, Inc., whose employee, John Kennedy, undertook to perform personal surveillance of Burns.  The factual situation is best described in the opinion of the appellate court:

Plaintiff alleges that prior to November 12, 2005, Gallagher retained codefendant Metro to perform personal surveillance of plaintiff.  On November 13, 2002, an employee of Metro, Kennedy, approached plaintiff’s mobile home and sought entry into his home under the false pretense that he was looking for a missing juvenile.  Plaintiff alleged that Kennedy was holding the picture of a young girl when he approached his home.  Once inside, plaintiff alleges that Kennedy asked him questions about the missing juvenile.

Kennedy used a hidden camera in a fanny pack to record plaintiff’s movement and conversation while plaintiff was inside his home.  Kennedy later filed an affidavit stating that the recording device did not record the conversation he had with plaintiff, only the visual interaction.  On December 17, 2002, Kennedy testified in plaintiff’s workers’ compensation case with regard to plaintiff’s physical limitations.  The entry into plaintiff’s home was the basis for Kennedy’s testimony.  Plaintiff alleges that Kennedy admitted under oath at a prior arbitration hearing that he used a false story regarding a missing juvenile to gain access to plaintiff’s home.

Plaintiff alleges the intrusion was highly offensive and that he sustained anguish and suffering as a direct and proximate cause of Kennedy’s entrance into his home.

The trial court initially dismissed Burns’ complaint but the appellate court reversed.  The court provided a thorough explanation as to how invasion by intrusion is a form ofinvasion of privacy and refers to the recent case involving Valley Forge Insurance Company in the opinion.

The court noted that Black’s Law Dictionary’s definition of ‘right of privacy,’ which is defined as ‘[a]n unjustified exploitation of one’s personality or intrusion into one’s personal activities’ and includes ‘invasion of privacy by intrusion’ ***.  [Invasion of privacy by intrusion is] defined as ‘[a]n offensive, intentional interference with a person’s seclusion or private affairs’ ***.  In addition, Webster’s defines ‘privacy’ as ‘the quality or state of being apart from the company or observation of others: seclusion.’

Plaintiff has alleged the court elements of the tort: (1) an unauthorized intrusion or prying into the plaintiff’s seclusion, (2) the intrusion must be offensive or objectionable to a reasonable man, (3) the matter upon which the intrusion occurs must be private, and (4) the intrusion causes anguish and suffering. We also acknowledge the Restatement’s definition, which says, ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Editor’s Note:

Most respondents and their insurance carriers will recall cases where surveillance, particularly those involving the video camera, have proved to be very successful in the situations involving exaggerated claims. Consistently, these investigators are very careful in avoiding any intrusion into the claimant’s residence.  However, they frequently involve surveillance of the claimant’s activities on his outside premises with the photographer being very careful to avoid entering upon the premises themselves.

It should be noted that the opinion does not describe any misconduct on the part of Masterbrand Cabinets, Inc. or Gallagher Bassett.  In addition, the court is merely permitting the claimant to file his lawsuit based on intrusion upon seclusion and is not making any decision as to the credibility of the allegations.

James Burns, Jr. v. Masterbrand Cabinets, et al No. 4-06-0296, decided January 9, 2007

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105