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In an action for the intentional infliction of emotional distress, it is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"
Myra and Claude Creel are husband and wife. Claude is a pastor of Huntsville Evangelistic Community Church in Huntsville, Indiana. On May 13, 1994, Myra was involved in a motor vehicle collision and suffered serious injuries including a broken clavicle. At the time of the accident, Myra was employed by Winona Memorial Hospital (the hospital) as a quality control specialist in the business department. As an employee of the hospital, Myra participated in its group long-term disability insurance plan, which was funded by an insurance policy issued by Fortis Benefits (Fortis). As a result of the injuries she sustained in the motor vehicle collision, Myra sought to collect long-term disability benefits under the policy. Fortis initially made payments to Myra following the accident. Thereafter, Fortis determined that Myra was no longer eligible for benefits under the policy and discontinued payments. Myra responded by seeking administrative review of Fortis' determination. As part of its administrative review of Myra's appeal, on November 13, 1998, Fortis commissioned I.C.E., which is a licensed private detective agency, to conduct surveillance and videotape Myra's activities beginning on November 22, 1998. The purpose of this surveillance was to confirm Myra's unemployment and to ascertain whether her activities were consistent with her medical diagnosis and disability determination. Among other things, Fortis instructed I.C.E. to videotape Myra's activities during services at her husband's church. Myra sued, claiming invasion of privacy and intentional infliction of emotional distress. Claude alleged loss of consortium. The Johnson Circuit Court (Indiana) granted summary judgment to the agency. Myra and Claude appealed.
Were the Creels’ invasion of privacy claim and intentional infliction of emotional distress claim meritorious?
In agreeing with the trial court's decision to grant summary judgment, the appellate court found that there was no genuine issue of material fact. Myra and Claude were unaware of the videotaping, and could not have suffered any emotional disturbance from being filmed. They were neither alone nor secluded when the videotaping occurred. Rather, they were videotaped at a scheduled church service that was open to the general public. The service was observed by many. The investigator who did the videotaping confined his videotaped surveillance to areas of the church that were open to the public. Myra and Claude had no reasonable expectation of privacy in their videotaped activities. The case involved a routine investigation to uncover possible insurance fraud. While it may have been considered distasteful, it did not rise to the level of outrage necessary to support a claim for intentional infliction of emotional distress.