Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019 Page 1 of 15

ATTORNEY FOR APPELLANT

Richard B. Kaufman

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Sarah Jenkins

Harmony Mappes

Anna Behrmann

Faegre Baker Daniels LLP 

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

“F.B.C.”, a Pseudonym,

Appellant/Cross-Appellee/Plaintiff,

v.

MDWISE, INC., d/b/a 

MDWISE, MDWISE 

NETWORK, INC., and 

MDWISE MARKETPLACE, 

INC.,

Appellees/Cross-Appellants/Defendants.

April 16, 2019

Court of Appeals Case No.

18A-CT-1934

Interlocutory Appeal from the 

Marion Superior Court

The Honorable Heather A. Welch,

Special Judge

Trial Court Cause No.

49D01-1801-CT-1781

Bradford, Judge.
Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019 Page 2 of 15

Case Summary

[1] In 2017, F.B.C. and her husband (“Husband”) had a health insurance policy 

with MDwise, Inc., d/b/a MDwise; MDwise Network, Inc.; MDwise 

Marketplace, Inc. (collectively “Insurer”). In May of 2017, F.B.C. was tested 

for various sexually transmitted diseases, and Insurer posted a statement (“the 

Statement”) listing testing for the diseases on its web portal which was 

accessible by Husband as the primary policyholder. Husband viewed the 

Statement which F.B.C. alleges caused him to cease reconciliation of their 

marriage and proceed with their pending divorce. F.B.C. filed suit against 

Insurer alleging, inter alia, disclosure of private facts to a particular public

(“Disclosure”), intrusion (“Intrusion”), and outrage (“Outrage”). Insurer 

moved to dismiss all claims, which motion was granted by the trial court on all 

claims except Outrage. F.B.C. contends that the trial court erroneously 

dismissed her claims of Disclosure and Intrusion. Insurer contends that the trial 

court erroneously denied its motion to dismiss F.B.C.’s Outrage claim. Because 

we conclude that all three claims should have been dismissed as a matter of 

law, we affirm in part, reverse in part, and remand with instructions to dismiss 

F.B.C.’s Outrage claim. 

Facts and Procedural History

[2] In 2017, F.B.C. and Husband were attempting to reconcile before following 

through with their pending divorce. The couple had a health insurance policy

through Insurer, on which Husband was the primary policyholder. On May 17, 
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2017, F.B.C. was tested for various sexually transmitted diseases. When 

Husband logged into Insurer’s online web portal, he accessed the Statement 

which listed, inter alia, the diseases for which F.B.C. was tested. As a result,

F.B.C. alleges that Husband refused to continue reconciliation and proceeded 

with the pending divorce.

[3] On January 16, 2018, F.B.C. filed a complaint against Insurer alleging, inter 

alia, Disclosure, Intrusion, and Outrage. On March 12, 2018, Insurer moved to 

dismiss all counts pursuant to Indiana Trial Rule 12(B)(6). The trial court 

granted Insurer’s motion to dismiss F.B.C.’s Disclosure and Intrusion claims 

but denied the motion as to the Outrage claim.

Discussion and Decision

[4] F.B.C. contends that the trial court erroneously dismissed her claims of 

Disclosure and Intrusion. Insurer contends that the trial court erroneously 

denied its motion to dismiss F.B.C.’s Outrage claim. Indiana Trial Rule 

12(B)(6) is a motion to dismiss for “[f]ailure to state a claim upon which relief 

can be granted[.]” 

A motion to dismiss for failure to state a claim tests the legal 

sufficiency of the claim, not the facts supporting it. When ruling 

on a motion to dismiss, the court must view the pleadings in the 

light most favorable to the nonmoving party, with every 

reasonable inference construed in the non-movant’s favor. We 

review a trial court’s grant or denial of a Trial Rule 12(B)(6) 

motion de novo. We will not affirm such a dismissal unless it is 
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apparent that the facts alleged in the challenged pleading are 

incapable of supporting relief under any set of circumstances. 

Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (internal citations and 

quotations omitted). 

I. Disclosure

[5] F.B.C. contends that the trial court erroneously dismissed her Disclosure claim. 

Because the tort of Disclosure has not yet been recognized in Indiana, we 

disagree. In Doe v. Methodist Hospital, the Indiana Supreme Court declined to 

adopt Disclosure, which is a sub-tort of invasion of privacy, as an actionable 

claim. 690 N.E.2d 681, 693 (Ind. 1997). The Court recognized that while 

neighboring states have adopted a more liberal Disclosure standard, it was not 

persuaded to adopt Disclosure as a cognizable claim in Indiana. Id. at 692–93. 

See also Felsher v. University of Evansville, 755 N.E.2d 589, 593 (Ind. 2001) (“Our 

discussion of [the history of the invasion of privacy tort] and the Second 

Restatement served as a prelude to our decision not to recognize a branch of the 

tort involving the public disclosure of private facts.”). F.B.C. has failed to 

establish that the trial court erroneously dismissed her Disclosure claim. 

II. Intrusion

[6] F.B.C. contends that the trial court erroneously dismissed her Intrusion claim. 

Intrusion occurs when there has been an “intrusion upon the plaintiff’s physical 

solitude or seclusion as by invading his home or conducting an illegal search.” 

Cullison v. Medley, 570 N.E.2d 27, 31 (Ind. 1991). F.B.C. does not claim any 
Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019 Page 5 of 15

physical intrusion by Insurer but, rather, claims that Insurer intruded upon her 

emotional solace. However, we have specifically chosen not to recognize claims 

of Intrusion where the intrusion only invades plaintiff’s emotional solace. See 

Westminster Presbyterian Church of Muncie v. Yonghong Cheng, 992 N.E.2d 859, 

868–69 (Ind. Ct. App. 2013) (concluding that the tort of Intrusion has only been 

found where there was an intrusion by physical contact or an invasion of 

plaintiff’s physical space, and refusing to extend it to cases where the only 

intrusion is upon plaintiff’s emotional solace), trans. denied. Because F.B.C. only 

claims that Insurer intruded upon her emotional solace, we conclude that the 

trial court correctly dismissed her claim of Intrusion. 

III. Outrage 

[7] Insurer cross-appeals, contending that the trial court erroneously denied its 

motion to dismiss F.B.C.’s Outrage claim. Outrage (also referred to as 

intentional infliction of emotional distress) is caused by “one who by extreme 

and outrageous conduct intentionally or recklessly causes severe emotional 

distress to another.” Branham v. Celadon Trucking Servs., Inc., 744 N.E.2d 514, 

522–23 (Ind. Ct. App. 2001) (internal citations omitted), trans. denied. To prove 

Outrage, the plaintiff must establish that the defendant (1) engages in extreme 

and outrageous conduct that (2) intentionally or recklessly (3) causes (4) severe 

emotional distress to another. Id. at 523. In appropriate cases, the question of 

what constitutes extreme and outrageous conduct can be decided as a matter of 

law. Id. Conduct is extreme and outrageous
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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!

Conwell v. Beatty, 667 N.E.2d 768, 777 (Ind. Ct. App. 1996) (internal quotations 

omitted).

[8] We conclude that Insurer’s alleged conduct was not extreme and outrageous as 

a matter of law. F.B.C. alleges that Insurer caused her severe emotional distress 

by posting the Statement listing the various diseases that she was tested for on 

its web portal, which was subsequently viewed by Husband. This is not conduct 

which is utterly intolerable in a civilized community but, rather, routine in 

today’s technologically-driven society. Health insurance companies maintain

web portals to allow policyholders instant access to their personal medical 

information, insurance claims, etc., and the current matter is no exception.

Husband was the primary policyholder with instant access to the couple’s 

medical insurance information through Insurer’s web portal. Even if we 

assume, which we do not, that Insurer intended to cause F.B.C. severe

emotional distress by posting the Statement for Husband to view, the conduct 

still does not amount to extreme and outrageous. Therefore, the trial court erred 

by failing to dismiss F.B.C.’s Outrage claim. 
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[9] The judgment of the trial court is affirmed in part, reversed in part, and 

remanded with instructions to dismiss F.B.C.’s Outrage claim. 

Brown, J., concurs.

Bailey, J., dissents with opinion. 
Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019 Page 8 of 15

I N T H E

COURT OF APPEALS OF INDIANA

“F.B.C.”, a Pseudonym,

Appellant/Cross-Appellee-Plaintiff,

v.

MDwise, Inc. d/b/a MDwise; 

MDwise Network, Inc.; and 

MDwise Marketplace, Inc.,

Appellees/Cross-Appellants-Defendants.

Court of Appeals Case No.

18A-CT-1934

Bailey, Judge, dissenting.

[10] I respectfully dissent because I believe, given the opportunity, the Indiana 

Supreme Court would recognize the torts of public disclosure of private facts 

and intrusion into emotional solace. Seeing no barrier to these claims, I would 

conclude that F.B.C. stated actionable claims of Disclosure and Intrusion. I 

would also conclude that F.B.C. stated an actionable claim of Outrage.

Disclosure

[11] Under Indiana law concerning privacy and publicity, the dead have more 

protection than the living. Indeed, state law guards against the unauthorized 

exploitation of personal attributes by conferring a broad right of publicity: a 

property right in one’s name, voice, signature, image, and gestures, among 
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other things. See Ind. Code § 32-36-1-7 & -8. Hoosiers enjoy this protection 

throughout their lives and the transferrable right of publicity lives on for 100 

years after death. See I.C. § 32-36-1-8, -16 & -19. Thus, Indiana law offers a 

remedy—even punitive damages—if one’s face is printed on a box of cereal. 

See I.C. § 32-36-1-10. Yet, Indiana law does not definitively recognize a more 

basic right—a privacy right that protects the dignity of the living by guarding 

against the unauthorized public disclosure of highly personal information.

[12] In 1997—amid the infancy of the internet, when carrying troves of personal 

information on a pocket device may have seemed “the stuff of science fiction,” 

Zanders v. State, 118 N.E.3d 736, 738 (Ind. 2019)—a plurality of the Indiana 

Supreme Court “decline[d] to recognize” the tort of public disclosure of private 

facts, see Doe v. Methodist Hosp., 690 N.E.2d 681, 682 (Ind. 1997). A few years 

later, in Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 (Ind. 2001), our 

supreme court characterized the plurality decision as a majority holding, noting 

that the discussion in Doe “served as a prelude to [its] decision not to recognize 

a branch of the tort involving the public disclosure of private facts.”

[13] Yet, since 1997, there has been an “exponential increase in the amount and 

sensitivity of personal information that has become available online . . . and [a] 

corresponding increase in the speed and ease with which that information may 

be broadcast to the public.” Robbins v. Trustees of Ind. Univ., 45 N.E.3d 1, 13 

(Ind. Ct. App. 2015) (Crone, J., concurring in part and concurring in result in 

part). For these reasons, Judge Crone thoughtfully “urge[d] our supreme court 
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to revisit its pronouncements” on the tort of public disclosure of private facts—

albeit in a case in which transfer ultimately was not sought. See id. at 13.

[14] As Judge Crone observed, “[w]hether Indiana recognizes this tort is technically 

an open question, but for all practical purposes the answer is currently no.” Id. 

Whereas Judge Crone was “not inclined to rock this particular boat” by 

recognizing the tort of public disclosure of private facts, id., I believe our 

supreme court would have clearly recognized this tort had day-to-day life in 

1997 been as inextricably intertwined with technology as it is today. Indeed,

[i]t is difficult to overstate the extent to which we have 

surrendered, by choice or compulsion, the most intimate details 

of our lives to the digital domain. Many Hoosiers are 

paid . . . online. And many Hoosiers bank, shop, conduct 

business, pay taxes, engage in social and political activity, seek 

medical and legal advice, and (pursuant to federal law) have their 

health records stored online. Although much of this information 

is expected and intended to be disseminated to a wide audience 

(family vacation photos, job résumés), much is expected and 

intended to be kept under the electronic equivalent of a lock and 

key (financial records, psychiatric treatment notes).

Id. at 13-14. Moreover, with the ubiquity of digital data, it is easier than ever 

for unwanted third parties to obtain—and share—sensitive information. See, 

e.g., Doe, 690 N.E.2d at 695 (Dickson, J., concurring in result) (“With our everincreasing population and the growing technological opportunities for invasive 

scrutiny into others’ lives, the compilation of private data, and the disclosure of 

purely personal matters, this common law tort [of disclosure] grows in 

importance as a valuable source of deterrence and accountability.”); see also
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Elizabeth M. Jaffe, Cyberbullies Beware: Reconsidering Vosburg v. Putney in the 

Internet Age, 5 Charleston L. Rev. 379, 382-85 (2011) (noting the tort 

implications of tragic events involving a college student who committed suicide 

after his roommate used a computer camera to spy on the student’s sexual 

encounters, revealed the student’s sexual orientation in a post on social media, 

and shared a link that allowed third parties to remotely view the camera feed).

[15] According to the Indiana Supreme Court, “[t]he extent to which the tort of 

invasion of privacy is recognized in Indiana is not yet settled.” Allstate Ins. Co. 

v. Dana Corp., 759 N.E.2d 1049, 1057 (Ind. 2001); see Robbins, 45 N.E.3d at 13 

(Crone, J., concurring in part and concurring in result in part) (“Whether 

Indiana recognizes this tort [of disclosure] is technically an open question.”). 

Furthermore, our supreme court has acknowledged “that unique circumstances 

may ‘give rise to the expansion of the . . . forms of tort liability for invasion of 

privacy.’” Felsher, 755 N.E.2d at 595 (quoting Restatement (Second) of Torts § 

652A cmt. c (1977)). In light of the vast technological advances that have 

profoundly reshaped day-to-day life since the 1990s, I believe the Indiana 

Supreme Court would clearly recognize not only a tort of public disclosure of 

private facts but also—as this case involves—the sub-tort of disclosure to a 

particular public. See, e.g., Doe, 690 N.E.2d at 692 (discussing this sub-tort, 

recognized in other states, where the pertinent inquiry is “whether a particular 

disclosure would be embarrassing given the plaintiff’s relationship with the 

‘particular public’ at issue”). Here, F.B.C. alleged the unpermitted disclosure of 

sensitive health information to F.B.C.’s spouse—that F.B.C. had been tested for 
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several sexually communicable diseases. I would conclude F.B.C. alleged a 

viable claim of Disclosure. Thus, I would reverse the dismissal of this count.

Intrusion

[16] With respect to the claim of Intrusion, the majority concludes dismissal of the 

claim was proper because the alleged intrusion was emotional—not physical—

in nature. The majority draws on Cullison, an Indiana Supreme Court case: 

“Intrusion occurs when there has been an ‘intrusion upon the plaintiff’s physical

solitude or seclusion as by invading his home or conducting an illegal search.’” 

Slip op. at 4 (emphasis added) (quoting Cullison v. Medley, 570 N.E.2d 27, 31 

(Ind. 1991)). The majority then cites to Westminster Presbyterian Church of Muncie 

v. Yonghong Cheng, wherein this Court—not our supreme court—declined to 

recognize a claim of intrusion where the alleged intrusion was not physical in 

nature. 992 N.E.2d 859, 868-69 (Ind. Ct. App. 2013), trans. denied.

[17] To the extent the majority reads Cullison as creating a requirement of physical 

intrusion, I respectfully disagree. The passage mentioning physical intrusion 

appears in a case involving allegations either chiefly physical in nature—

entering a residence—or, as the Court determined, not actionable because the 

allegedly intrusive actions took place in public. See Cullison, 570 N.E.2d at 31. 

Further, in mentioning physical intrusion, the Court cited to a single treatise. 

Yet, the Restatement (Second) of Torts sets forth the elements necessary to 

allege intrusion: “One who intentionally intrudes, physically or otherwise, upon 

the solitude or seclusion of another or his private affairs or concerns, is subject 
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to liability to the other for invasion of his privacy, if the intrusion would be 

highly offensive to a reasonable person.” Section 652B (1977) (emphasis 

added); cf. Munsell v. Hambright, 776 N.E.2d 1272, 1283 (Ind. Ct. App. 2002) 

(noting that the tort of intrusion “arguably embraces intrusion into emotional 

solace”), trans. denied. Ultimately, although this Court has declined to identify a 

claim of non-physical intrusion, I do not read binding precedent as foreclosing 

such a claim. Thus, in light of the technological advances since Cullison was 

decided in 1991, I would follow the Restatement, which recognizes an 

actionable claim of intrusion “physically or otherwise,” and I would reverse 

dismissal of this claim. Cf. Felsher, 755 N.E.2d at 595 (observing that “unique 

circumstances may ‘give rise to the expansion of the . . . forms of tort liability 

for invasion of privacy.’” (quoting Restatement (Second) of Torts § 652A cmt. c 

(1977)).

Outrage

[18] Turning to the final claim at issue, I cannot say—as a matter of law—that 

F.B.C. failed to allege facts supporting a claim of Outrage. The parties trade 

arguments concerning whether sharing this information actually constituted a 

violation of the Health Insurance Portability and Accountability Act of 1996 

(“HIPAA”). Nevertheless, whether or not the defendants technically violated 

HIPAA or some other law, the common law has long-recognized social risk 

associated with the status of having a sexually communicable disease. See, e.g., 

Nichols v. Guy, 2 Ind. 82, 82-83 (1850) (determining an allegedly defamatory 
Court of Appeals of Indiana | Opinion 18A-CT-1934 | April 16, 2019 Page 14 of 15

statement—that the plaintiff had “the clap”—was per se actionable without 

proof of special damages because “[t]he ground of the action for words of this

description is the presumption that the party charged will be wholly or partially 

excluded from society by reason of the charge”). Here, the alleged disclosure 

did not mention whether F.B.C. tested positive or negative. Nevertheless, 

because of the sensitivity of this type of information, I cannot say—as a matter 

of law—the public would not be sufficiently outraged to learn that, without 

permission, an insurer disclosed that F.B.C. underwent a battery of tests for 

particular diseases: “HIV-1 AG W/HIV-1 & HIV-2 AB”; “CHYMD TRACH 

DNA”; “N. GONORRHOEAE DNA”; “ACUTE HEPATITIS”; “HERPES 

SIMPLEX”; and “HERPES SIMPLEX TYPE 2.” App. Vol. 2 at 30.

[19] The majority endorses the alleged conduct as insurance-related and “routine in 

today’s technologically-driven society.” Slip op. at 6. Yet, it is not as though 

the defendants gave only general information to F.B.C.’s spouse, the primary 

policyholder—e.g., that “lab testing” had occurred. Rather, it is the specificity 

of the information that, at this stage, provides adequate support for a claim of 

Outrage. Cf. Restatement (Third) of Torts § 46 cmt. e (2012) (“Although an 

actor exercising legal rights is not liable . . . merely for exercising those rights, 

the actor is not immunized from liability if the conduct goes so far beyond what 

is necessary to exercise the right that it is extreme and outrageous.”). Indeed, at 

the very least, a reasonable fact-finder could conclude that the defendants acted 

recklessly by sharing such specific information without F.B.C.’s permission:
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An actor acts recklessly when the actor knows of the risk of 

severe emotional harm (or knows facts that make the risk 

obvious) and fails to take a precaution that would eliminate or 

reduce the risk even though the burden is slight relative to the 

magnitude of the risk, thereby demonstrating the actor’s 

indifference.

Restatement (Third) of Torts § 46 cmt. h (2012).

[20] Ultimately, the instant claim of Outrage is best left to a fact-finder. I would 

therefore affirm the denial of the Trial Rule 12(B)(6) motion as to this claim.

[21] For the foregoing reasons, I respectfully dissent.