Two Strikes and You're Out -- Invasion of Privacy Claim Against Allstate Dismissed

NO-FAULT – INVASION OF PRIVACY – NEW YORK CIVIL RIGHTS LAW §§ 50 & 51
Farrow v. Allstate Ins. Co.
(2nd Dept., decided 7/15/2008)

What do no-fault and invasion of privacy claims have to do with one another? I wondered that myself.

In AFFIRMING Suffolk Supreme's dismissal of plaintiff's complaint for invasion of privacy against Allstate (with costs), the Second Department held:

New York State does not recognize the common-law tort of invasion of privacy except to the extent it comes within Civil Rights Law §§ 50 and 51 (see Ram v Moritt, 205 AD2d 516, 517; see also Cohen v Herbal Concepts, 63 NY2d 379). Although the tort has assumed various forms in other jurisdictions (see Restatement, Torts, Second, § 652A), in New York privacy claims are founded solely upon Civil Rights Law §§ 50 and 51. These statutes protect against the appropriation of a plaintiff's name or likeness for a defendant's benefit and create a cause of action in favor of any person whose name, portrait, or picture is used for advertising purposes or for trade without the plaintiff's consent (see Cohen v Herbal Concepts, 63 NY2d at 383).

Here, the factual allegations in the complaint are not embraced by Civil Rights Law §§ 50 and 51. Thus, the complaint does not state a cognizable cause of action to recover damages for invasion of privacy. Accordingly, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

True to form, the Second Department's decision gives little or no underlying facts. So why is there a no-fault headnote on this post? For those not blessed with perfect recall, the answer lies where all answers lie, at least for me, with Google.

Clues to the genesis of this action lie in the Second Department's April 8, 2008 decision in Cathleen Farrow v. O'Connor, Redd, Gollihue & Sklarin. In that case, Ms. Farrow had sued her former employer, the law firm of O'Connor, Redd, Gollihue & Sklarin, and that firm's office manager, for defamation based on the defendants having allegedly sent a letter containing defamatory statements to Allstate, her no-fault insurer, which was processing her claim for no-fault benefits in connection with a car accident. In affirming the dismissal of plaintiff's complaint in that action (with costs), as well, the Second Department held that "here, the defendants demonstrated their entitlement to summary judgment by establishing that the communication at issue, which amounted to a subjective characterization of the plaintiff's behavior and an evaluation of her job performance, constituted a nonactionable form of opinion[.]" Must have been the enhanced NF-6+ form that the law firm used.

Are the two actions related? Unclear, but probably. It would not be the first time and won't be last that a claimant complains of some type of privacy right invasion in relation to an insurer's investigation of her claim. This case makes it clear that for a common-law invasion of privacy cause of action against an insurer to exist, however, there had to have been an appropriation of a claimant's or insured's name or likeness for the insurer's benefit, creating a cause of action in favor of any person whose name, portrait, or picture is used for advertising purposes or for trade without the claimant's or insured's consent.