Setzer v. Schimpf ( 2006 )


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  •                                                                                F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                             UNITED STATES COURT OF APPEALS
                                                                                   June 23, 2006
                                         TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                                   Clerk of Court
    
     VICKIE SETZER,
    
               Plaintiff-Appellant,
     v.
                                                                  No. 04-5100
                                                            (D.C. No. 04-CV-95-K)
     FARMERS INSURANCE COMPANY,
                                                         (Northern District of Oklahoma)
     INC.,
    
               Defendant-Appellee.
    
    
    
                                      ORDER AND JUDGMENT *
    
    
    Before HENRY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and MURPHY,
    Circuit Judge.
    
    
           On October 5, 2000, Vickie Setzer (the plaintiff), a resident of Oklahoma, filed a
    
    petition in the district court in and for Tulsa County, State of Oklahoma, against one
    
    Carolee Schimpf, (the defendant), also a resident of Oklahoma, alleging that on October
    
    17, 1998, the defendant negligently drove her vehicle into the vehicle the plaintiff was
    
    driving, and that as a result thereof the plaintiff received personal injuries for which she
    
    sought damages “well in excess of $10,000.” More specifically, plaintiff sought damages
    
    against the defendant “regarding physical injuries, medical expenses, pain and suffering
    
    
    
           *
             This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    (past, present and future), mental suffering (past, present, and future), loss of certain
    
    physical abilities, loss of wages, loss of enjoyment of life and any temporary and
    
    permanent disability resulting therefrom.” On June 4, 2002, plaintiff filed an amended
    
    petition in the same court adding her husband, Fred Setzer, as a party plaintiff. In the
    
    amended petition the plaintiff realleged her claim for damages against the defendant for
    
    the personal injuries she received in the accident, and her husband, Fred Setzer, asserted a
    
    claim against the defendant for loss of consortium. (Plaintiff and her husband, Fred
    
    Setzer, will be hereinafter referred to collectively as the plaintiffs, or by name.) In the
    
    amended petition, Vickie Setzer also asserted a claim against the defendant for
    
    “Intentional Infliction of Emotional Distress,” and an additional claim based on “Invasion
    
    of Privacy/Intrusion of Seclusion” wherein she sought additional damages “well in excess
    
    of $10,000.00.” Those two claims were based on the acts of the “defendant and her
    
    agent(s),” and were based on Oklahoma law.
    
           On November 4, 2003, the plaintiffs filed a second amended petition adding
    
    Farmers Insurance Company, Inc. (Farmers), a Kansas corporation, as a party defendant.
    
    The defendant had a policy of automobile insurance with Farmers and was represented in
    
    the present action by attorneys provided by Farmers. In the second amended petition,
    
    Vickie Setzer reasserted her claim for damages against the defendant for personal injuries
    
    and Fred Setzer reasserted his claim against the defendant for loss of consortium, and
    
    Vickie Setzer sought damages from the defendant and Farmers, “jointly or severally,”
    
    based on her claims of “Intentional Infliction of Emotional Distress” and “Invasion of
    
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    Privacy/Intrusion of Seclusion” by the “defendants and their agents.”
    
           On January 23, 2004, Vickie Setzer filed a dismissal with prejudice of her claims
    
    for intentional infliction of emotional distress and invasion of privacy against the
    
    defendant Schimpf, expressly reserving, however, those claims against Farmers. On
    
    February 2, 2004, the plaintiffs filed a dismissal with prejudice of all of their other claims
    
    against the defendant Schimpf, thereby leaving Vickie Setzer and Farmers, citizens of a
    
    different state, as the remaining parties to the state court proceeding.
    
           On February 9, 2004, Farmers removed the state court proceeding between Vickie
    
    Setzer and Farmers to the United States District Court for the Northern District of
    
    Oklahoma based on diversity and the amount in controversy. 28 U.S.C. § 1446. On
    
    February 17, 2004, Vickie Setzer filed a motion to remand the removed proceedings back
    
    to the district court in and for Tulsa County, State of Oklahoma, on the sole ground that it
    
    had not been established that the amount in controversy between plaintiff and Farmers
    
    exceeded $75,000.00, so as to confer jurisdiction in the federal district court. 28 U.S.C. §
    
    1332(a). On April 12, 2004, the federal district court denied Vickie Setzer’s motion for
    
    remand, finding that Farmers had “set forth the underlying facts supporting its assertion
    
    that the amount in controversy meets the jurisdictional requirements . . . to the satisfaction
    
    of the Court.”
    
           On April 20, 2004, Farmers filed a motion to dismiss Vickie Setzer’s petition,
    
    along with a supporting brief, asserting that the allegations in the amended petition, even
    
    if accepted as true, did not give rise to the claims asserted against Farmers by Vickie
    
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    Setzer. Farmers did not attach any evidentiary matter to its motion to dismiss, and relied
    
    solely on plaintiff’s allegations in her amended petition. On May 4, 2004, Vickie Setzer
    
    filed a response in opposition to Farmers’ motion to dismiss, attaching thereto 77 pages of
    
    evidentiary material purporting to support her claims against Farmers. Included in the
    
    evidentiary materials submitted by Vickie Setzer were a deposition of one Rhonda
    
    DuVall, a legal assistant at Farmers, several record requests of Farmers to Vickie Setzer’s
    
    doctors requesting her “complete medical records,” and attaching to its several requests a
    
    copy of the “Restricted- Limited Medical Authorization” theretofore provided Farmers
    
    by the plaintiff.
    
           By its order of June 24, 2004, the federal district court granted Farmers’ motion to
    
    dismiss, which, based on Vickie Setzer’s response to Farmers’ motion to dismiss and the
    
    evidentiary matter attached thereto, the district court treated as a motion for summary
    
    judgment. Fed.R.Civ.P. 12(b)(6). In so doing, the federal district court concluded that
    
    the alleged misconduct by Farmers “is not outrageous in the context of case investigation
    
    and defense of an insurance claim for bodily injury damages” and that Farmers’ alleged
    
    actions did not rise to the “‘highly offensive’ level required by the tort of intrusion upon
    
    seclusion.” Vickie Setzer appeals that order.
    
    
    
                                                  I
    
           Vickie Setzer on appeal argues that the district court erred in denying her motion
    
    to remand on the ground that Farmers had failed to file a motion to remove the case
    
                                                 -4-
    within one year after the commencement of the action on October 5, 2000 as required by
    
    28 U.S.C.§ 1446(b). We disagree.
    
            As indicated, on January 23, 2004, Vickie Setzer dismissed with prejudice her
    
    claim against the defendant Schimpf for intentional infliction of emotional distress and
    
    invasion of privacy/intrusion of seclusion, expressly reserving, however, those claims
    
    against Farmers. On February 2, 2004, the plaintiffs dismissed all of their remaining
    
    claims against the defendant Schimpf, thereby leaving Vickie Setzer and Farmers,
    
    citizens of different states, as the remaining parties to the state court proceeding.
    
           On February 9, 2004, Farmers removed the state court proceeding between Vickie
    
    Setzer and Farmers to the United States District Court for the Northern District of
    
    Oklahoma, pursuant to 28 U.S.C. § 1446. On February 17, 2004, Vickie Setzer filed a
    
    motion to remand the removed proceedings back to the state district court in and for Tulsa
    
    County, State of Oklahoma on the sole ground that Farmers had not shown that the
    
    amount in controversy between Vickie Setzer and Farmers exceeded $75,000, so as to
    
    confer jurisdiction in the federal district court. On April 12, 2004, the federal district
    
    court denied Vickie Setzer’s motion to remand, holding that Farmers had set forth the
    
    underlying facts supporting its assertion that the amount in controversy meets the
    
    jurisdictional requirement of $75,000.
    
           In this general regard 28 U.S.C. § 1446(b) reads as follows:
    
                  (b) The notice of removal of a civil action or proceeding shall
                  be filed within thirty days after the receipt by the defendant,
                  through service or otherwise, of a copy of the initial pleading
    
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                  setting forth the claim for relief upon which such action or
                  proceeding is based, or within thirty days after the service of
                  summons upon the defendant if such initial pleading has then
                  been filed in court and is not required to be served on the
                  defendant, whichever period is shorter.
    
                  If the case stated by the initial pleading is not removable, a
                  notice of removal may be filed within thirty days after receipt
                  by the defendant, through service or otherwise, of a copy of
                  an amended pleading, motion, order or other paper from
                  which it may first be ascertained that the case is one which is
                  or has become removable, except that a case may not be
                  removed on the basis of jurisdiction conferred by section
                  1332 of this title more than 1 year after commencement of the
                  action. (Emphasis added.)
    
           By way of general background, when a plaintiff files in state court a civil action
    
    where, because of diversity of citizenship and the amount in controversy, a federal district
    
    court would have original jurisdiction under 28 U.S.C.§1332, the defendant may remove
    
    the action to federal district court. A plaintiff objecting to the removal may thereafter file
    
    a motion asking the federal district court to remand the case to state court. Further, if the
    
    federal district court denies a plaintiff’s motion to remand we have jurisdiction to review
    
    the federal district court’s denial of the plaintiff’s motion to remand “when coupled with
    
    the appeal of a final judgment.” Our review of a federal district court’s denial of a motion
    
    to remand is de novo. Huffman v. Saul Holdings Limited Partnership, 
    194 F.3d 1072
    ,
    
    1076 (10th Cir. 1999). In Huffman we spoke, at page 1076, as follows:
    
                  At the outset, we note that there are two types of improperly
                  removed cases: those in which the federal court has no subject
                  matter jurisdiction and those with defects in the
                  removal procedure itself. A defect in subject matter
                  jurisdiction can never be waived and may be raised at any
    
                                                 -6-
                  time. A procedural defect, however, does not involve the
                  subject matter jurisdiction of the court and may be waived.
                  (Citations omitted)(emphasis added).
    
           We reject counsel’s suggestion that we are here concerned with a “jurisdictional
    
    defect.” Diversity of citizenship is not an issue in this case, nor is the amount in
    
    controversy now an issue. The issue sought to be raised on appeal, i.e., whether the
    
    motion of removal was filed within one year after the initial pleading in the state court
    
    proceeding, was not raised in the federal district court, and, under Huffman is therefore
    
    deemed to have been waived.
    
    
                                             II
    
           Vickie Setzer’s second argument in this Court is that the district court erred in
    
    treating Farmer’s motion to dismiss under 12(b)(6) as a motion for summary judgment
    
    without giving notice to the parties as required by Fed.R.Civ.P. 56. Under the
    
    circumstances of this case, we find no error.
    
           Farmers’ 12(b)(6) motion was a motion to dismiss on the basis of the material
    
    contained in the complaint itself. It was Vickie Setzer, who in her response to Farmer’s
    
    motion, included evidentiary matter outside the pleadings and asked the court to consider
    
    such in its resolution of the motion to dismiss.1 Such being the case, the district court, in
    
    accord with Vickie Setzer’s request, considered the evidentiary matter which she had
    
           1
             Farmers objected to the district court’s considering the evidentiary matter attached
    to its response to Farmer’s motion to dismiss, and its objection was overruled.
    
    
    
                                                  -7-
    tendered the court and then entered summary judgment in favor of Farmers. This case
    
    clearly comes within our pronouncement in Building & Const. Dept. v. Rockwell
    
    International, 
    7 F.3d 1487
    , 1496 (10th Cir. 1993). In that case, we spoke as follows:
    
                  Plaintiffs’ contention that the district court committed
                  reversible error in this case, however, fails on two grounds.
                  First, under our cases, plaintiffs did have adequate notice
                  under Rule 56(c). Plaintiffs were the first parties to point out
                  to the district court that defendants’ 12(b)(6) motion was in
                  fact a motion for summary judgment. Further, plaintiffs
                  submitted, and in fact were first to submit, materials outside
                  of the pleadings to the court. As a result, plaintiffs have no
                  legitimate claim that they lacked notice.
    
           In treating the motion to dismiss as a motion for summary judgment, the district
    
    court did not err.
    
    
    
                                                III
    
           As thus indicated, the federal district court treated Farmer’s motion to dismiss
    
    plaintiff’s amended petition as a motion for summary judgment and, based on the record
    
    before it, granted that motion and entered summary judgment for Farmers. Vickie Setzer
    
    contends in this appeal that the district court erred in so doing.
    
            In her amended petition, Vickie Setzer alleged two claims for relief against
    
    Farmers: (1) Intentional Infliction of Emotional Distress and (2) Invasion of
    
    Privacy/Intrusion of Seclusion, both of which are recognized torts under Oklahoma state
    
    law. Eddy v. Brown, 
    715 P.2d 74
     (Okla. 1986). In the amended petition, Vickie Setzer
    
    alleged basically the same factual material in each of her two claims. We summarize
    
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    these allegations as follows: Farmers sought and obtained from the plaintiff’s healthcare
    
    providers confidential, privileged medical records, including gynecological records,
    
    unrelated to her injuries received in the automobile accident, without valid medical
    
    authorization through the use of demand, coercion, or trickery and thereafter used them in
    
    an outrageous manner thus embarrassing, humiliating and causing damage to the plaintiff.
    
           More specifically, it would appear from the evidentiary matter which Vickie Setzer
    
    attached to her response to Farmers’ 12(b)(6) motion that, during discovery, Farmers, as
    
    Schimpf’s agent, requested a general and unlimited medical authorization from Vickie
    
    Setzer to check any and all of her prior medical records. This Vickie Setzer declined to
    
    give, and instead sent Farmers a copy of a limited authorization that she had sent to her
    
    medical providers, stating, inter alia, that “this authorization is limited in time, scope and
    
    subject matter. Beware of the restrictions to protect yourself from potential liability.”
    
    This authorization went on to state that “the specific records you may release on Vickie
    
    Setzer are only: dated December 1991, to present, and relate to low back, legs, and feet;
    
    nothing else which you may have that relates to me.”
    
           Based thereon, Farmers sent a form letter to Vickie Setzer’s medical providers,
    
    which letter in its opening paragraph referenced Vickie Setzer’s medical authorization,
    
    and attached thereto a copy of such limited authorization. The second paragraph of that
    
    form letter, which Vickie Setzer now complains about, read as follows:
    
                  Please forward to our office the complete medical records
                  (every page) including office notes, handwritten notes, initial
                  intake questionnaire, laboratory test results, medical reports,
    
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                  and correspondence received from or rendered to other
                  persons, progress or office notes, x-ray reports, consulting
                  reports, medical liens, all medical bills and all other
                  information, including doctor’s notes and reports contained in
                  the patient’s chart or file. Please understand that this request
                  is for copies of existing records only, and no request is being
                  made at this time for a new narrative report. (Emphasis in
                  original.)
    
           The gravamen of Vickie Setzer’s complaint against Farmers is that, based on the
    
    request sent by Farmers to Vickie Setzer’s medical providers, the medical providers sent
    
    Farmers medical records which included, inter alia, gynecological records containing
    
    matters even her husband didn’t know “anything about” and were outside and beyond her
    
    limited authorization which only authorized the release of such medical records as were
    
    made after 1991 and pertained to treatment of her lower back, legs and feet.
    
           It was in this general setting that the district court granted summary judgment in
    
    favor of Farmers, which plaintiff challenges in this appeal. As mentioned, Oklahoma
    
    recognizes the tort of Intentional Infliction of Emotional Distress and Invasion of
    
    Privacy/Intrusion of Seclusion. Eddy v. Brown, 
    715 P.2d 74
    , (Okla. 1986). In that case,
    
    the Oklahoma Supreme Court characterized Intentional Infliction of emotional distress as
    
    a “torts of outrage” and that in order to qualify as such the acts complained of must be so
    
    outrageous in character and so extreme in degree as to go beyond all possible bounds of
    
    decency and be regarded as atrocious and utterly intolerable in a civilized community.
    
    Further, the Oklahoma Supreme Court in Eddy also stated that it is a trial court’s
    
    responsibility to determine in the first instance whether a defendant’s conduct in a given
    
    
    
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    case is sufficiently extreme and outrageous as to require submission of the case to a jury,
    
    and that it is only when reasonable persons could differ on this issue that the case should
    
    be submitted to the jury. Finally, in that same case, the court observed the “outrageous
    
    and extreme nature of the conduct to be examined should not be considered in a sterile
    
    setting, detached from the milieu in which it took place.” Id. at 77.
    
           In this same general regard, the Oklahoma Supreme Court in Breeden v. League
    
    Services Corp., 575 P.2d 1374,1376 (Okla. 1978), spoke as follows:
    
                    The general state of the law is succinctly summarized at
                  Section 46, Restatement of Torts (Second), 1965, which
                  provides in part:
                        § 46. Outrageous Conduct Causing Emotional Distress
                        “(1) One who by extreme and outrageous conduct
                    intentionally or recklessly causes severe emotional distress
                    to another is subject to liability for such emotional distress,
                    and, if bodily harm to the other results from it, for such
                    bodily harm.”
    
                     Comment d to that Section provides in part:
                       “* * * 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!’ (Emphasis added.)
    
             In treating Farmers’ motion to dismiss as a motion for summary judgment and
    
      then entering summary judgment in favor of Farmers, the district court noted,
    
      preliminarily, that Vickie Setzer, being the non-moving party, and who thus will bear
    
      the burden of proof at trial, must go beyond the pleadings and identify “specific facts
    
                                                 - 11 -
    showing that there is a genuine issue for trial.” Mares v. ConAgra Poultry Co. Inc.,
    
    
    971 F.2d 492
    , 496 (10th Cir. 1992). This, Vickie Setzer attempted to do when she filed
    
    a response to Farmers’ motion to dismiss and attached thereto 77 pages of evidentiary
    
    matter, which the district court considered before entering summary judgment for
    
    Farmers. In so doing, the district court also noted that in order for Vickie Setzer to
    
    successfully resist Farmers’ motion she must show that Farmers’ acts were “‘beyond
    
    all possible bounds of decency’ in the setting in which it occurred.” Eddy, 715 P.2d at
    
    77. In this connection, the district court in the instant case in its order granting
    
    summary judgment observed that the defendant, “in executing its duty to investigate
    
    Plaintiff’s medical claim, Defendant for whatever reasons and by whatever means,
    
    obtained records beyond Plaintiff’s authorization. This conduct, though sloppy or even
    
    intimidating, is not outrageous in the context of an investigation and defense of an
    
    insurance claim for bodily injury damages.” As concerns the ultimate issue to be
    
    resolved, the district court in the instant case concluded that on the showing made,
    
    Farmers’ conduct did not rise to the extremely high standard required under Oklahoma
    
    law. In short, it was simply not “outrageous.” We are in accord with the district
    
    court’s understanding of Oklahoma law on this matter. We should also note that
    
    Vickie Setzer does not claim that there are “disputed facts” which would require
    
    submission of the controversy to a jury. Rather, her position is that the undisputed
    
    facts set forth in her response to Farmers’ motion to dismiss are sufficient, under
    
    Oklahoma law, to require submission of the case to a jury. In this connection, in Miller
    
                                                - 12 -
    v. Miller, 
    956 P.2d 887
    , 901, (Okla. 1998) the Oklahoma Supreme Court spoke as
    
    follows:
    
                 It is the trial court’s responsibility initially to act as
                 gatekeeper: to determine whether the defendant’s conduct
                 may reasonably be regarded as sufficiently extreme and
                 outrageous to meet the §46 [of the Restatement of Torts
                 (Second) (1977)] standards. Only when it is found that
                 reasonable people would differ in an assessment of this
                 central issue may the tort of intentional infliction of
                 emotional distress be submitted to the jury.
    
          In connection with Vickie Setzer’s separate claim of “Intrusion Upon
    
    Seclusion” the district court concluded that Farmers’ conduct was not “highly
    
    offensive to a reasonable person” citing Munley v. ISC Financial House Inc., 
    584 P.2d 1336
    , 1339-40 (Okla. 1978). We agree.
    
          Judgment affirmed.
    
    
    
                                             ENTERED FOR THE COURT
    
    
                                             Robert H. McWilliams
                                             Senior Circuit Judge
    
    
    
    
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