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When a government agency decides to get in the way of your investigation

Posts Tagged ‘ investigation ’

When a government agency decides to get in the way of your investigation

Wednesday, September 2nd, 2015

When a government agency decides to get in the way of your investigation. Much attention has been focused on the Rowan County, KY clerk who is refusing to issue marriage licenses to gay couples. This brings to mind an unfortunately regular occurrence that we, as licensed private investigators working on complex claims investigations and background checks, encounter with government agencies refusing to provide information or records that they are legally obligated to.

In some instances, the agency we are trying to work with is gigantic and the bureaucracy gets in the way. For instance, being located in metro-Detroit, we have had constant battles with the City of Detroit to try and get Freedom of Information Act requests answered. In instances like this, there is no one person getting in the way, and the carousel of “leaders” that we contact  appear not to care or lack the ability to respond. (Note: working with the City of Detroit is getting easier and they are much more efficient these days, the City of Chicago, not so much) This spring, our office received a response to a FOIA from Detroit 21 months after it was submitted! We also encounter the opposite where a smaller municipality elects not to cooperate for political reasons. In a case in 2014, we attempted to get records from a smaller city in Montana regarding a fire department call to a claimant’s residence. The city attorney turned out to be close friends with the plaintiff’s attorney and stoned walled us. In a separate instance, a City Attorney of another town said that if we did not disclose the nature of our investigation and who we were working for, which we cannot by law, he would never release this information and he would certainly find out through discovery if we sued for it.

For those of your who are familiar with FOIA law, you might ask, why not sue them? Well in most cases, our clients simply do not want us to take it that far. In others, the time, energy and cost to do so far outweighs the benefit the records may impart to the case. The really bad news is that these agencies and bureaucrats know this and the reality is that most of the time it works and the requester goes away. The salt in our wound is that sometimes our client does not appreciate this possibility and see the failure as bad investigators who don’t know what they are doing.

Surveillance remains the best option when investigating fraudulent casualty claims in Michigan

Wednesday, July 9th, 2014

Technology may change. The way we live will change too. One thing that does not change is the fact that a claimant demonstrating his or her true abilities and capabilities is still the best option when investigating fraudulent casualty claims in Michigan. Yes, privacy is the number one concern when it come to surveillance, but the reality is that true professional private investigators know the limits and they always stay within the confines of the law. Period. No matter how much it might benefit an insurance carrier to have footage of some activity that demonstrates that a claimant is healthy, they would never want it. The reason is simple, it would get kicked out of court and they would come under tremendous public scrutiny and end up paying far more than they could have ever saved. So what is risk that a casualty claims surveillance will end up violating someones rights? It resides with the private investigator. When an insurance carrier selects a PI to conduct surveillance, the integrity, education, training and oversight of the PI is the key. The vast majority of private investigators know the law and follow it. Unfortunately some investigators have erred in judgement and crossed the line. At Sherlock Investigations, we aim to set the standard in professionalism and to serve as an example to the industry on producing great work product and protecting the rights of those we are charged to investigate.

4th of July Weekend Excellent Opportunity for Insurance Claim Surveillance

Tuesday, July 1st, 2014

This year, the 4th of July falls on a Friday. This is the first time in four years that we have the holiday fall next to a weekend. With the automatic three day weekend for most of working America, it is expected that their will be a record number of people off of work and available to plan some serious recreation. For many casualty claimants who may not be working, but live and socialize with those who do, it is highly likely that you will be joining in on the fun. What better time to conduct surveillance to see what they are doing when everyone else is having fun?

Insurance claim surveillance is among the most powerful tools that an insurance carrier has to disprove fraud and embellishment. Sherlock Investigations is Michigan’s premier insurance investigative agency. If you have a last minute claim that merits investigation during this prime holiday weekend, please contact Dan Klimek, Fran Figurski, Brian Coykendall or Cara Booker. They are happy to help.

Top 5 Ways an Insurance Company Can Detect Insurance Fraud in Michigan

Thursday, June 26th, 2014

Insurance fraud in Michigan is a serious problem. Although most insurance carriers have a wide variety of ways to detect insurance fraud, particularly in the area of false casualty claims in auto accidents or workers compensation claims, but 5 common ways are tried and true and used most frequently. The top 5 ways an insurance company can detect insurance fraud in Michigan are as follows:

1. Review of medical bills, often via specialized computer applications, will note unusual billing patterns that are not consistent with a normal injury treatment protocol. Often times these are produced by doctors looking to get the maximum amount of money from the insurance company on a casualty claim and are not normally found in treatment of such and injury.

2. Personal injury mills. These are known lawyers or medical groups that have been identified as being potentially engaged in aggressive if not outright fraudulent practices aimed at getting money and keeping a claim going as long as possible. Once these types of mills are identified by the insurance carriers, many of the claims that include them will be reviewed closely for potential fraud.

3. Cross referencing of a claimant and or their address with other similar claims. Sources like ISO can be searched by insurance companies to see if you have a long history of filing casualty claims and potentially do this to make money. Statistically, it is nearly impossible for a person to end up having 5, 6, 7 auto accidents, slip and falls or the like, so those who do, need to be investigated for potential fraud.

4. A review of social media for the claimant is amazingly helpful in determining if someone is actually injured or potentially committing insurance fraud.

5. Tips from associates or the public are great ways to detect insurance fraud and are far more common than thought by many. Your little insurance fraud scheme may easily be disclosed by a friend who disapproves or an enemy who wants to see you in trouble.

Often times, once one of these types of potential insurance fraud is detected on a casualty claim in Michigan, the insurance carrier will have a firm like Sherlock Investigations assist them in investigating elements of the claim.


Michigan PIP Claims Likely To Increase

Thursday, April 3rd, 2014

Each year the Michigan State Police updates the prior years auto accident statistics and publish them here. The data includes the number of crashes, number of injuries and fatalities along with other information. The 2013 update should be out soon and as an overall statistical trend, Michigan auto accidents have been decreasing. This is believed to be due to a combination of decreased drunk driving and to a lesser degree improvements in auto safety. Despite the decrease in Michigan PIP claims, the number of PIP claim law suits, and the need for corresponding Michigan PIP claims investigations has increased. With the record setting cold and snow this winter, and a plethora of accidents, the 2014 number should be very interesting.

ISO ClaimSearch Exceeds 800 Million Claims

Tuesday, June 26th, 2012

ISO, a Verisk Insurance Solutions company, a firm dedicated to collecting property and casualty claim related information for the insurance industry, announced that it has exceeded collecting records on more than 800 million claims. The ISO database has redefined how the insurance industry investigates claims and fights insurance fraud. ISO now indicates that it has over 87,000 subscribers. Full press release


Lunacy in Colorado

Monday, October 5th, 2009

Colorado legislators are considering whether to make it harder for workers comp insurers to use video surveillance to ferret out suspicious injury claims. Legislators on an interim committee are looking into the state’s largest comp insurer, contending Pinnacol Assurance’s anti-fraud video surveillance was excessive. Pinnacol says its surveillance is legal and often is the key evidence in landing convictions for fake injury claims. One proposal that may come before the 2010 legislature would require insurers to show “probable cause” before being allowed to use video surveillance.

Victory for PA Work Comp Insurers Use of Surveillance

Wednesday, August 19th, 2009


Tagouma v. Investigative Consultant Services, Inc., et al.

Torts — Invasion of Privacy — Intrusion upon Seclusion — Expectation of Privacy

— Abuse of Process.

Plaintiff was videotaped by a private investigator who had been hired
to investigate the validity of his workers’ compensation claim for an
alleged work-related injury. He claimed an invasion of privacy because
he was videotaped while at worship in a mosque, which was open to the
public. The surveillance was conducted through a window of the
mosque with a video camera equipped with a zoom lens from a public
vantage point approximately 80 yards away.

1. In Pennsylvania, a violation of the right to privacy is an actionable tort. Harris by Harris v. Easton Publishing Co., 483 A.2d 1377, 1383 (Pa. Super. 1984).
2. Under Pennsylvania law, a party seeking workers’compensation benefits must expect to have his or her claims investigated, and is thus afforded a diminished expectation of privacy.
3. Watching or observing a person in a public place, or taking a photograph of a person who can be observed from a public vantage point, is not generally an invasion of privacy. See, e.g., Wehling v. Columbia Broadcasting System, 721 F.2d 506, 509 (5th Cir. 1983).
4. A tortious invasion of privacy must “cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” DeAngelo v. Fortney, 515 A.2d 594, 595 (1986) (quoting Hull v. Curtis Publishing Co., 125 A.2d 644, 646 (Pa. 1956).

Cross Motions for Summary Judgment. C.P., Dau. Co., No. 2006 CV
1532 CV. Defendants’ motion granted and Plaintiff’s action dismissed
in its entirety with prejudice.
David W. Knauer, for Plaintiff
James A. Bosakowski, for Defendants

TURGEON, J., May 27, 2009. –

The plaintiff asserts that the defendants invaded his privacy and abused legal process when they surreptitiously videotaped him through a window while he worshipped at an Islamic Center. The defendants, private investigators, had been hired to investigate the validity of plaintiff’s workers’ compensation claim for his alleged work-related injury and videotaped plaintiff in the performance of his daily activities. The parties have filed cross motions for summary judgment. For the reasons set forth below, this court grants defendant’s motion and dismisses plaintiff’s action.

The undisputed relevant facts set forth in the record are as follows:

On April 8, 2004, the plaintiff Ahmed Tagouma fell at work while employed at Arnold Industries. He suffered an acute fracture of his right hand. Plaintiff was later diagnosed with Reflex Sympathetic Dystrophy Syndrome (RSD).
Plaintiff sought workers’ compensation benefits and Arnold Logistics contested his claim. While the claim was pending, the workers’ compensation carrier, Sentry Insurance, retained defendant Investigative Consultant Services (ICS) to perform surveillance on plaintiff. Defendant Michael Zeigler, an investigator with ICS, was assigned to conduct the surveillance.
Plaintiff, currently 53 years old, is an Moroccan immigrant and a Muslim who worshipped at the Al-Hikmeh Institute, which is housed on the first floor of Islamic Center of PA, located at 4704 Carlisle Pike, Mechanicsburg. The Islamic Center of PA is in a non-descript two-story building that most closely resembles an apartment building. (Court Exbt. 1) Plaintiff describes the Al-Hikmeh portion of the building as a mosque. A large sign in front of the Center visible to passersby identifies the property as “The Islamic Center of PA – Al-Hikmeh Institute – Daily Worship, Arabic / Islamic Studies.” (Court Exbt. 3)
The Islamic Center sits to the south of Carlisle Pike (U.S. Highway Route 11), which is a commercial highway that runs generally eastwest in the area in question. The record indicates that there are no public sidewalks along Carlisle Pike although all the areas in front of the businesses in the vicinity are paved such that public parking is abundant. (Court Exbt. 1)
1. The record includes the parties’ summary judgment motions and exhibits attached to defendants’ motion (Exhibit A – Complaint; Exhibit B – Answer; and Exhibit C – Plaintiff Tagouma’s Deposition); responses to summary judgment motions; Supplemental Packet of exhibits provided by plaintiff following oral argument (Exhibit a – Zeigler Deposition; Exhibit b – Workers’ Compensation Petition; Exhibit c – Workers’ Compensation Answer;
Exhibit d – Workers’ Compensation Order; Exhibit e – Junkins Affidavit; and Exhibit f -Kownacki Affidavit); photos provided to the Court by plaintiff (designated Court Exhibit 1 – two Carlisle Pike photos (The Islamic Center of PA and surveillance location); Court Exhibit 2 – close-up photo of plaintiff through window; and Court Exhibit 3 – photo of sign in front of The Islamic Center),
2. RSD, also referred to as Complex Regional Pain Syndrome (CRPS), is a chronic neurological syndrome characterized by severe pain, which usually arises following injury to nerve or soft tissue (e.g. broken bone) that does not follow the normal healing path. Its development does not appear to depend on the magnitude of the injury and the sympathetic nervous system seems to assume an abnormal function after an injury.
http://www.rsds.org/2/what_is_rsd_crps/index.html (RSDSA website, last visited May5, 2009).

The Islamic Center of PA is situated just to the rear of two businesses that sit, respectively, just in front of it to its left and just in front of it to its right. (Court Exbt. 1) A driveway runs between these two businesses and leads to The Islamic Center, where public parking exists at its front, side and rear. (Plaintiff dep. at 31). Persons traveling by car on Carlisle Pike can see The Islamic Center from the highway though their view is limited by the businesses to its front right and left, respectively. A number of other buildings housing various businesses are also located in the area, including a three-store strip mall located immediately across the Carlisle Pike (on its north side) from The Islamic Center.
According to defendant Zeigler, on April 7, 2005, at approximately 9:10 p.m., he parked in front of the three-store strip mall in a public lot, though at the time he parked there, all three businesses were closed. Zeigler observed the plaintiff from across Carlisle Pike as plaintiff stood inside in the Al-Hikmeh portion The Islamic Center near a window on the building’s north side. Zeigler was between 79 and 80 yards away from The Islamic Center windows. Defendant Zeigler videotaped plaintiff for 45 minutes with a Sony 8 mm video camera and used the camera’s zoom feature. (Suppl. Exbt. f – Kownacki Affidavit)
Zeigler testified that at first he was unsure what the people inside The Islamic Center were doing, though after a while, he began to think “they
might be praying.” (Zeigler dep. at 13) He believed since plaintiff was
in plain view, he could videotape him. (Zeigler dep. at 14) He was
trained to videotape subjects so long as they were “in public” or “in
plain view,” even if inside a public building. (Zeigler dep. at 6-7) The
videotape was subsequently shown to a workers’ compensation judge.
Plaintiff was not aware that Zeigler was conducting surveillance of him or videotaping him until a later time. He testified he was standing six to eight feet from the window through which he was recorded and that the Al-Hikmeh Institute was lit inside. He was standing up and praying in the video; his prayer consisted of standing up, kneeling and placing his head upon the floor. (Plaintiff dep. at 28) Plaintiff testified that “when I go in front of God, that’s my own privacy, my own prayer between me and my God, my sacred place, my sacred time, and nobody has the right to interfere or invade that time with God — with me and God.” (Plaintiff dep. at 38-39)
3. While videotape and/or photographs were also taken of plaintiff at other locations and on other dates, including at stores, in parks and while plaintiff was walking on the street, only video taken of plaintiff at The Islamic Center is at issue in this action. (Plaintiff dep. at 20-21)

In Counts I and II of the Complaint, plaintiff alleges that defendants are liable because they invaded his privacy by videotaping him while in his mosque. In Counts III and IV of the Complaint, plaintiff asserts abuse of process. Defendants seek summary judgment arguing that based upon the undisputed facts of record, plaintiff cannot establish either claim as a matter of law. The Rule for deciding the cross motions for summary judgment, applicable here, is as follows:
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by
additional discovery or expert report, or …
Pa.R.C.P. 1035.2.
Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, admissions and affidavits demonstrate that no genuine issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Pa.R.C.P. 1035.1-.5. The trial court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. The burden is on the moving
party to prove that no genuine issue of fact exists. However, when the moving party carries its initial burden, the adverse party may not rest upon the allegations or denials contained in the pleadings, but must respond
by showing there is a genuine issue for trial. If the adverse party does not so respond, summary judgment will be entered in favor of the moving party. …
Preferred Fire Prot., Inc. v. Joseph Davis, Inc., 954 A.2d 20, 24
(Pa.Super. 2008) (citation omitted).

In Counts I and II of the Complaint, plaintiff has alleged that defendants are liable because they invaded his privacy by videotaping him while he was at worship in a mosque. The specific claim alleged by plaintiff is intrusion upon seclusion. Under the undisputed facts of record, plaintiff cannot, as a matter of law, set forth a claim for intrusion upon seclusion. The record establishes that plaintiff was videotaped at a location where he was visible to the public. In addition, he was himself located in a public place. Furthermore, under Pennsylvania law, a party seeking workers’ compensation benefits must expect to have his or her claims investigated and thus is afforded a diminished expectation of privacy. Alternatively, even if it could be assumed that plaintiff’s location in his mosque, during prayer, constituted a private or semi-private space in which plaintiff had a reasonable expectation of privacy, his claim would still fail because defendants’ conduct was not “highly offensive” as a matter of law.

In Pennsylvania, a violation of the right to privacy is an actionable tort. Harris by Harris v. Easton Publishing Co., 483 A.2d 1377, 1383 (Pa. Super. 1984). The gist of privacy is the sense of seclusion, the wish to be left alone, and it is a trespass to abuse these personal sensibilities. Bennett v. Norban, 151 A.2d 476, 479 (Pa. 1959). Our supreme court has approved of the Second Restatement of Torts’formulation of invasion of privacy, which is actually comprised of four analytically distinct torts:
(1) intrusion upon seclusion, (2) appropriation of name or likeness, (3)
publicity given to private life, and (4) publicity placing a person in false
light. Marks v. Bell Telephone Company of Pennsylvania, 331 A.2d 424,
430 (Pa. 1975). These four invasion of privacy torts are set forth in §§
652B-E of the Restatement. Although our supreme court has not specif-
ically adopted the final draft of the Second Restatement, our appellate
courts have concluded that “the Restatement most ably defines the ele-
ments of invasion of privacy as that tort has developed in Pennsylvania.”
Harris by Harris at 1383; see also, Burger v. Blair Medical Associates,
Inc., 928 A.2d 246, 250 (Pa.Super. 2007).

Plaintiff’s privacy claim alleges intrusion upon seclusion, which is
defined in the Restatement as follows:
§ 652B. Intrusion upon Seclusion
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.
Restatement (Second) of Torts § 652B. The superior court in Harris by
Harris further elaborated as follows:

An action pursuant to this section does not depend
upon any publicity given to the person whose interest is
invaded or to his affairs. Restatement (Second) of Torts
§652B, comment a. The invasion may be (1) by physical
intrusion into a place where the plaintiff has secluded
himself, (2) by use of the defendant’s senses to oversee or
overhear the plaintiff’s private affairs, or (3) some other
form of investigation or examination into plaintiff’s
private concerns. Id., comment b.
The defendant is subject to liability under this section
only when he has intruded into a private place, or has
otherwise invaded a private seclusion that the plaintiff
has thrown about his person or affairs. Id., comment c;
Fogel v. Forbes, Inc., 500 F.Supp. at 1087. There is also
no liability unless the interference with the plaintiff’s
seclusion is substantial and would be highly offensive to
the ordinary reasonable person. Restatement (Second) of
Torts § 652B, comment d.
Harris by Harris at 1383-84. “[T]his cause of action also requires that
the plaintiff have a reasonable expectation of privacy.” Kline v. Security
Guards, Inc., 386 F.3d 246, 260 (3rd Cir. 2004) (citing Harris by Harris
at 1383). Finally, a tortious invasion of privacy must “cause mental suf-
fering, shame or humiliation to a person of ordinary sensibilities.”
DeAngelo v. Fortney, 515 A.2d 594, 595 (1986) (quoting Hull v. Curtis
Publishing Co., 125 A.2d 644, 646 (Pa. 1956)).
As set forth above, intrusion upon seclusion can occur under three
situations: (1) by physical intrusion into a place where the plaintiff has
secluded himself, (2) by use of the defendant’s senses to oversee or
overhear the plaintiff’s private affairs, or (3) some other form of inves-
tigation or examination into plaintiff’s private concerns. Harris by
Harris at 1384. Plaintiff’s claim necessarily rests upon an assertion that
defendants invaded his privacy by overseeing (videotaping) his private
affairs; this is not a case where the defendants are alleged to have
physically intruded into plaintiff’s place of seclusion since it is
uncontradicted that defendants surveilled plaintiff without plaintiff’s
knowledge from a distance of 79-80 yards.
Our supreme court addressed a similar set of facts in the seminal case
of Forster v. Manchester, 189 A.2d 147 (Pa. 1963). There, the plaintiff
filed a lawsuit for personal injury damages arising from an automobile
accident. Her automobile insurer hired a private detective who conduct-
ed surveillance and filmed plaintiff in her daily activities. Plaintiff later
brought an action against the detective alleging invasion of privacy. The
trial court dismissed her claims. Id. at 148-49. On appeal, in addressing
the extent of the interest to be protected, the Pennsylvania supreme court

It is not uncommon for defendants in accident cases to
employ investigators to check on the validity of claims
against them. Thus, by making a claim for personal
injuries [plaintiff] must expect reasonable inquiry and
investigation to be made of her claim and to this extent
her interest in privacy is circumscribed. It should also
be noted that all of the surveillances took place in the
open on public thoroughfares where [plaintiffs] activi-
ties could be observed by passersby. To this extent
[plaintiff] has exposed herself to public observation
and therefore is not entitled to the same degree of pri-
vacy that she would enjoy within the confines of her
own home. … There was nothing unreasonable in the
manner in which [plaintiff] was followed nor in the taking
of motion pictures. In regard to the surveillance, it was
conducted by experienced investigators who did not use
improper techniques … there was no trespassing on appel-
lant’s property nor spying through her windows.
Id. at 150 (emphasis added). Compare, Pappa v. Unum Life Ins. Co. of
Am., 2008 U.S. Dist. LEXIS 21500; 43 Employee Benefits Cas. (BNA)
2389 (M.D. Pa. 2008) (court refused to dismiss the plaintiff insured’s
claim for intrusion upon seclusion arising from her insurer’s surveil-
lance, distinguishing Forster on basis that plaintiff in Pappa was sur-
veilled in private areas of her home including through her bedroom and
bathroom windows). Because plaintiff here had pending a contested
workers’ compensation claim, he waived his right of privacy to the
extent of a reasonable investigation.
Under Pennsylvania law, there is generally no right of privacy in pub-
lic space or in space open to public view and thus there is no reasonable
expectation of privacy in such space. See e.g., Harris by Harris at 1383
(“[t]he defendant is subject to liability under this section only when he
has intruded into a private place”). This public/private space paradigm
was analyzed by the Eastern District Court, applying Pennsylvania law,
as follows:

This tort generally does not apply to matters which occur
in a public place or a place otherwise open to the public
eye. Comment c to § 652B illustrates this point:
The defendant is subject to liability under the
rule stated in this Section only when he has
intruded into a private place, or has otherwise
invaded a private seclusion that the plaintiff has
thrown about his person or affairs. …. Nor is
there liability for observing him or even taking
his photograph, while he is walking on the pub-
lic highway, since he is not then in seclusion, and
his appearance is public and open to the public
eye. Even in a public place, however, there may
be some matters about the plaintiff, such as his
underwear or the lack of it, that are not exhibit-
ed to the public gaze; and there may still be inva-
sion of privacy when there is intrusion upon
these matters.
Comment c underscores the traditional rule that
watching or observing a person in a public place, or
taking a photograph of a person who can be observed
from a public vantage point, is not generally an inva-
sion of privacy. See, e.g., Wehling v. Columbia
Broadcasting System, 721 F.2d 506, 509 (5th Cir. 1983)
(broadcasting a picture of plaintiff’s residence which
showed nothing more than what could be seen from a
public street is not an invasion of privacy); Dempsey v.
The National Enquirer, 702 F. Supp. 927, 931 (D. Me.
1988) (a reporter’s presence on a public thoroughfare and
in a restaurant open to the public cannot constitute an
intrusion upon seclusion of another); Machleder v. Diaz,
4. Examples where courts have recognized an invasion of private affairs found in the
public are revealed in the following cases: Johnson v. Allen, 613 S.E.2d 657 (Ga. Ct. App.
2005) (surveillance in a public restroom constituted an invasion of privacy) and Daily
Times Democrat v. Graham, 162 So.2d 474, 476 (Ala. 1964) (woman photographed at a
county fair with her skirt blown up over her head stated a cause of action where the pho-
tographer was lying in wait to catch the woman in an embarrassing situation); see also,
Shulman v. Group W Prods., 18 Cal. 4th 200, 74 Cal. Rptr. 2d 843 (Cal. 1998) (triable issue
existed as to whether plaintiffs injured in accident, who were filmed by the media at the
scene, had an objectively reasonable expectation of privacy in the interior of the rescue helicopter, which served as their ambulance).

538 F. Supp. 1364, 1374 (S.D.N.Y. 1982) (no liability for
intrusion upon seclusion when defendant accosted and
filmed plaintiff on the property of a corporation, a “semi-
public” place, where he was visible to the public eye).
Wolfson v. Lewis, 924 F. Supp. 1413, 1419-20 (E.D. Pa. 1996) (empha-
sis added) (footnote supplied). See also, Brian Patrick Bronson,
Pennsylvania’s Common Law Right to Privacy Inadequately Protects
the Rights of Individual Workers’ Compensation Claimants from
Harassment Caused by Video Surveillance, 40 Duq. L. Rev. 523, 532-33
(2002) (“[c]ourts have continually defined “public space” to cover “a
wide range of locations, from bustling thoroughfares to remote getaways
… the term generally, includes any place, whether publicly or privately
owned, to which the public has access” and that “the judiciary has
expanded the definition to include anywhere that is visible from a pub-
licly accessible vantage point, such as parts of the interior of one’s home
or garden that are visible from the street[;] [public space] may even
include parts of the interior of one’s home that can be seen with the
naked eye from a neighboring apartment”) (citations omitted)).
5. Courts from other jurisdictions universally agree with the general rule that there can
be no intrusion upon seclusion for watching or observing a person in a public place, or tak-
ing a photograph/videotape of a person who can be observed from a public vantage point,
even if in a private place. See e.g., Summers v. Bailey, 55 F.3d 1564, 1566 (11th Cir. 1995)
(watching or observing a person in a public place is not an intrusion upon one’s privacy);
Furman v. Sheppard, 744 A.2d 583, 586-87 (Md. App. 2000) (because plaintiff in a personal injury action was seen doing things that could be observed by non-trespassing members of the general public, the defendant’s trespass onto a private yacht club to videotape plaintiff did not constitute an actionable intrusion); Cefalu v. Globe Newspaper Co., 391
N.E.2d 935, 939 (Mass. App. 1979) (“[t]he appearance of a person in a public place necessarily involves doffing the cloak of privacy which the law protects”); DiGirolamo v. D.P.
Anderson & Associates, Inc., 1999 Mass. Super. LEXIS 190, *13 (Mass. Super., 1999)
(workers’ compensation investigator’s observation of claimant from public street through window of her residence, without enhanced vision, did not constitute intrusion upon seclusion); Figured v. Paralegal Technical Services, Inc., 555 A.2d 663, 667 (N.J. Super. 1989)
(no intrusion upon seclusion as matter of law by investigators of auto insurance claim since defendants’ investigation took place in the open; “law supports the proposition that whatever the public may see from a public place cannot be private”); and McLain v. Boise
Cascade Corporation, 533 P.2d 343, 346 (Ore. 1975) (where surveillance was done in an unobtrusive manner and plaintiff was not aware he was being watched and filmed, and where plaintiffs activities could have been observed by his neighbors or passersby, no cause of action for invasion of privacy against trespassing investigator). See also, Patricia
Sanchez Abril, Recasting Privacy Torts in a Spaceless World, 21 Harv. J.L. & Tech. 1, 13
(2007) (“[u]nder the Restatement, an individual cannot have a reasonable expectation of
privacy in any public place”); Andrew J. McClurg, Bringing Privacy Law Out of the
Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989,
990, 991 (1995) (“[t]ort law clings stubbornly to the principle that privacy cannot be
invaded in or from a public place. … [a]s interpreted by almost all courts, the tort [of intru-
sion upon seclusion] does not protect persons in places accessible to the public”).
Page 12
[124 Dauph.
Tagouma v. Investigative Consultant Services, Inc., et al.
Our Commonwealth Court recently reiterated this well settled rule
that “[a] defendant is liable for intrusion upon seclusion only when he
intrudes into a private place, or otherwise invades a private seclusion
about a plaintiff’s person or affairs.” DeBlasio v. Pignoli, 918 A.2d
822, 825 (Pa. Commw. 2007) (citing Harris by Harris at 1383). In that
case, the court upheld the dismissal of an intrusion upon seclusion
claim brought by prison inmates where it was alleged that a mayor
watched inmates from his home via surveillance cameras placed in
holding cells. The court held that “regardless of the location of the
viewer, the place being viewed was not private,” and that as such, the
inmates viewed had no reasonable expectation of privacy. Id. at 825
(citations omitted).
Although there is no case law in Pennsylvania on point of the level of
privacy to be afforded persons in houses of worship, two cases from
other jurisdictions, persuasive on this issue, identify a house of worship
as a public place. Creel v. I.C.E. & Assoc., Inc., 771 N.E.2d 1276, 1280
(Ind. Ct. App. 2002) and Fiorillo v. Berkley Administrators, 2004 Conn.
Super. LEXIS 1210 (Conn. App. 2004) (unreported). In Creel, the court
dismissed plaintiff’s claim that a detective agency invaded her privacy
while conducting a worker’s compensation investigation. Defendant’s
investigator, posing as a worshiper, used a hidden camera to videotape
plaintiff as she played the piano in front of her church congregation. Id.
at 1278. The appellate court affirmed summary judgment in defendant’s
favor, holding that the plaintiff had no reasonable expectation of priva-
cy in her activities when the investigator’s secret videotaping simply
recorded an activity that was open to the public and was observed by the
more than a hundred persons in attendance at the religious service. Id. at
1281. In Fiorillo, an employee seeking workers’ compensation benefits
was placed under surveillance over a 21-month period during which she
was filmed at numerous public places, including entering and exiting her
church. In addition, investigators followed her into the church on two
occasions but did not encounter her. The court dismissed the plaintiff’s
claim for intrusion upon her seclusion since, as a matter of law, the sur-
veillance was limited to observations that took place in public. Id. at *8
(citing Creel). The court stated that there is no intrusion into seclusion
where the matters observed are those “exhibited to the public gaze.” Id.
at *8 (citations omitted).
As set forth above, the law interpreting the Second Restatement tort
of intrusion upon seclusion uniformly holds that if a person is located
in a public space when observed, photographed or filmed, then there is
no cause of action. In addition, even if the person is located in a
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private or quasi-private location, if he or she is nevertheless observ-
able to the public, there is no cause of action. Furthermore, a person
litigating a workers’ compensation claim must expect that his or her
claims will be subject to investigation and as such, has a diminished
expectation of privacy.
Plaintiff here was situated in a public place since houses of worship
are places open to the public. As in Creel, the surveillance consisted of
nothing more than observation of plaintiff’s activities plainly visible to
anyone inside the mosque. Under these circumstances, plaintiff could
not have a reasonable expectation of privacy in his activities. In addi-
tion, the uncontradicted evidence was that the surveillance consisted of
nothing more than observation of plaintiff’s activities plainly visible
from a public vantage point where Mr. Zeigler was permitted to be. To
the extent defendant Zeigler used his zoom lens from 80 yards away, the
record reveals that that same view was available to the naked eye since
the area immediately surrounding The Islamic Center was accessible to
the public, including a public driveway that led from Carlisle Pike
directly to the front of the building where plaintiff was admittedly stand-
ing next to a lighted window in the evening darkness. Compare
DiGirolamo at *9-10 (court drew a distinction between surveillance of
an otherwise private place (interior of a home) which was observable to
the naked eye versus surveillance of the same place with enhanced
vision, noting the former is not protected while the latter is). Everything
observed through defendant’s video camera was observable to anyone
driving toward the publicly accessible driveway that led to The Islamic
Center. Thus, defendant Zeigler’s observation of plaintiff’s activities
during his legitimate investigation does not constitute an intrusion upon
seclusion as a matter of law. Simply stated, plaintiff had no objectively
reasonable expectation of privacy in either a public place and/or in pri-
vate or quasi-private place readily observable from public view.
Even assuming it could be concluded that plaintiff was located in a
private or quasi-private place from which he should have reasonably
expected some level of privacy,
defendants’ alleged invasion of this
privacy by videotaping him from afar cannot be considered “highly
offensive” as a matter of law.
6. The Connecticut court suggested in Fiorillo, in dicta, that it might extend the cloak
of privacy to a worshipper attending services who is involved in actual worship or prayer
as against an investigator who follows him or her into the sanctuary. Id. at *11-12 (court
made particular note that at no time did the investigators who followed plaintiff into the
church on two separate occasions intrude into the worship area of the church or the plain-
tiff’s worship or prayer activities).
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Intrusion upon seclusion requires as an element that the intrusion be
“highly offensive to a reasonable person.” Restatement (Second) of
Torts § 652B. Harris by Harris clarifies that it be highly offensive to the
“ordinary reasonable person.” Id. at 1383-84 (citing Restatement
(Second) of Torts § 652B, comment d). “Conduct that is highly offen-
sive to a reasonable person is conduct that a reasonable person, in simi-
lar circumstances, would find very objectionable or that a reasonable
person in similar circumstances could be expected to take with serious
offense.” DeBlasio at 824-25 (citing Pa. S.S.J.I. (Civ. 13.12) (2005)).
In determining whether an invasion of a privacy inter-
est would be “offensive” to an ordinary, reasonable per-
son, a court should consider all of the circumstances
including “the degree of the intrusion, the context, con-
duct and circumstances surrounding the intrusion as well
as the intruder’s motives and objectives, the setting into
which he intrudes, and the expectations of those whose
privacy is invaded.”
Wolfson at 1421 (citation omitted).
The degree of the intrusion here was minimal and of a non-harassing
Plaintiff in fact had no knowledge he was being investigated at
all, much less videotaped. Furthermore, the intrusion occurred within
the context of a reasonable investigation of his workers’ compensation
claim; such investigations have been stamped with an imprimatur of
legitimacy under Pennsylvania law. Forster, supra. While some individ-
uals might expect a certain level of privacy in a house of worship, the
specific intrusion here concerned observation of the plaintiff that any
member of the non-trespassing public could have observed simply by
driving up to the building in which plaintiff was located. As such, a rea-
sonable person videotaped under similar circumstances could not have
considered such conduct “highly offensive” or have taken “serious
offense” to it. DeBlasio at 824-25.
As this record establishes, plaintiff cannot establish that his right to
privacy has been invaded under the facts and circumstances presented.
7. A line of cases recognizes that investigative conduct which amounts to a persistent
course of hounding, harassment and unreasonable surveillance, even if conducted in a pub-
lic or semi-public place, may nevertheless rise to the level of invasion of privacy based on
intrusion upon seclusion. Wolfson v. Lewis, supra at 1419-20 (citing cases). These “harass-
ing investigator cases” are distinguishable from this case since there is no claim here that
the defendants persistently harassed the plaintiff; in fact, plaintiff was unaware of defen-
dants’ surveillance of him.
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Defendants are thus entitled to summary judgment on plaintiff’s claim
of intrusion upon seclusion.
In Counts III and IV of the Complaint, plaintiff asserts an abuse of
process claim against the defendants. This tort is defined as “the use of
legal process against another ‘primarily to accomplish a purpose for
which it is not designed.’” Shiner v. Moriarity, 706 A.2d 1228, 1236 (Pa.
Super. 1998) (citations omitted). To establish abuse of process, a plain-
tiff must prove that the defendant (1) used a legal process against the
plaintiff; (2) primarily to accomplish a purpose for which the process
was not designed; and (3) harm has been caused to the plaintiff. Id.
It is not enough that the defendant had bad or mali-
cious intentions or that the defendant acted from spite
or with an ulterior motive. Rather, there must be an act
or threat not authorized by the process, or the process
must be used for an illegitimate aim such as extortion,
blackmail, or to coerce or compel the plaintiff to take
some collateral action. There is no liability where the
defendant has done nothing more than carry out the
process to its authorized conclusion, even though with
bad intentions.
Al Hamilton Contracting Company v. Cowder, 644 A.2d 188, 192 (Pa.
Super. 1994) (citations omitted).
Plaintiff has failed to identify what legal process was used by defen-
dants against plaintiff to accomplish a purpose for which that process
was not designed. The only legal process involving plaintiff concerned
litigation of the workers’ compensation claim; however, the defendants
were not a party to that claim and did not initiate any legal process
against plaintiff.
Plaintiff suggests that the surveillance conducted by the defendants
as part of the litigation of that claim amounted to a perversion of the
workers’ compensation process wherein the videotape taken of plain-
tiff at worship had no probative value with respect to disproving his
claim of a hand and arm injury. “Process” as defined in an abuse of
process claim “has been interpreted broadly, and encompasses the
entire range of procedures incident to the litigation process,” includ-
ing such matters as discovery proceedings, the noticing of depositions
and the issuing of subpoenas. Rosen v. American Bank, 627 A.2d 190,
192 (Pa.Super. 1993) (citation omitted). Even assuming that the
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defendants’ surveillance could be considered “process” encompassed
within the workers’ compensation claim, the abuse of process asser-
tion would still fail since there was no abuse here; the surveillance of
a workers’ compensation claimant was undertaken for the purpose for
which it was designed. Defendants’ surveillance did nothing more
than carry out the workers’ compensation process to its authorized
conclusion. Al Hamilton Contracting, supra. The use of surveillance
by the insurance and litigation defense industries to counter fraud has
long been accepted as a legitimate enterprise under Pennsylvania law.
See, Forster, supra. As such, plaintiff’s claim must be dismissed.
Accordingly, this court enters the following:
AND NOW, this 27th day of May, 2009, following this court’s review
of the parties’cross motions for summary judgment, the relevant record,
the parties’briefs and following oral argument thereon, this court directs
that Defendants’Motion is hereby GRANTED and Plaintiff’s Complaint
is dismissed in its entirety, with prejudice.