Interlocutory Appeal from the Marion Superior Court The
Honorable Heather A. Welch, Special Judge Trial Court Cause
Attorney for Appellant Richard B. Kaufman Indianapolis,
Attorneys for Appellee Sarah Jenkins Harmony Mappes Anna
Behrmann Faegre Baker Daniels LLP Indianapolis, Indiana
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
and Procedural History
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, 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.
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.
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 apparent
that the facts alleged in the challenged pleading are
incapable of supporting relief under any set of
Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015)
(internal citations and quotations omitted).