Amy L. Fox v. City of Alexandria

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-810

AMY L. FOX

VERSUS

CITY OF ALEXANDRIA

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 223,912
HONORABLE F. RAE DONALDSON SWENT, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Michael G. Sullivan, Glenn B. Gremillion, and Billy H. Ezell,
Judges.

AFFIRMED AND REMANDED.

Bobby L. Culpepper
Culpepper & Carroll, PLLC
525 East Court Avenue
Jonesboro, LA 71251
(318) 259-4184
Counsel for Plaintiff/Appellant:
Amy L. Fox

Brandon A. Sues
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
Counsel for Defendant/Appellee:
City of Alexandria

GREMILLION, Judge.

The plaintiff, Amy L. Fox, appeals the trial court’s judgment granting a

peremptory exception of no cause of action in favor of the defendant, the City of

Alexandria. For the following reasons, we affirm the exception as it pertains to Fox’s

Health Insurance Portability and Accountability claim. However, we remand the

matter as we find that her petition has sufficiently stated a cause of action for invasion

of privacy pursuant to Article 1, § 5 of the Louisiana Constitution.

FACTS

Fox, a communications officer for Alexandria, filed the instant suit after

her request for refinancing was delayed or denied based on information supplied by

Alexandria to the mortgage company, Louisiana Mortgage Lenders. As part of its

mortgage application, Louisiana Mortgage required information pertaining to the

vacation and compensation time owed to Fox through her employment. Fox

authorized Alexandria to release this information. In doing so, Mary Moore, an

accountant with Alexandria, told Louisiana Mortgage that Fox was on sick leave, she

had been on extended sick leave, she had undergone eye surgery, and that she did not

think that Fox intended to return to work. Thereafter, Louisiana Mortgage refused

or delayed Fox’s mortgage application.

In her petition, Fox claimed that Moore violated the Health Insurance

Portability and Accountability Act (HIPAA), 42 U.S.C. 1301, et seq., by disclosing

any information other than that pertaining to her compensation and vacation time.

She further sought damages for mental anguish and for all monetary damages she

suffered as a result of her failure or delay in obtaining refinancing. Alexandria

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answered and then filed a peremptory exception of no cause of action in which it

argued that Fox had no cause of action against it under either the Social Security Act

or HIPAA. Following a hearing, the trial court granted Alexandria’s exception. This

appeal by Fox followed.

ISSUES

Fox raises three assignments of error on appeal. She argues that the trial

court erred in finding that she did not have a cause of action pursuant to HIPAA, and

that it erred by dismissing her suit in full rather than allowing her to amend her

petition.

EXCEPTION OF NO CAUSE OF ACTION

The standard of review pertaining to an exception of no cause of action

was laid out by the court in Johnson v. State of Louisiana, 06-2024, p. 3 (La.App. 1

Cir. 6/8/07), So.2d :

The function of the peremptory exception of no cause of action
is to test the legal sufficiency of the petition, which is done by
determining whether the law affords a remedy on the facts alleged in the
pleading. Ramey v. DeCaire, 2003-1299, p. 7 (La.3/19/04), 869 So.2d
114, 118. In the context of the peremptory exception, a cause of action
is defined as the operative facts that give rise to the plaintiff's right to
judicially assert the action against the defendant. Id. No evidence may
be introduced to support or controvert the exception of no cause of
action. La. C.C.P. art. 931. Consequently, a court reviews the petition
and accepts well-pleaded allegations of fact as true. The issue at the
trial on the exception is whether, on the face of the petition, the plaintiff
is legally entitled to the relief sought. Id.

This court reviews a judgment of the trial court pertaining to an
exception of no cause of action de novo. The pertinent question is
whether, in the light most favorable to plaintiff and with every doubt
resolved in plaintiff’s behalf, the petition states any valid cause of action
for relief. Ramey, 2003-1299, at pp. 7-8, 869 So.2d at 119.

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Even accepting that the facts pleaded in Fox’s petition are true, we find

that she has failed to state a cause of action pursuant to HIPAA. HIPAA was

described in State v. Downs, 04-2402, p. 4 (La.App. 1 Cir. 9/23/05), 923 So.2d 726,

728:

HIPAA is a massive federal statute that consists of extensive
regulations. These regulations identify and limit select entities’ capacity
to disclose patients’ medical records. The implementation of these
regulations applies to the following: (1) a health plan; (2) a health care
clearinghouse; and (3) a health care provider who transmits any health
information in electronic form in connection with a transaction covered
by these regulations. See 45 C.F.R.§§ 160.102 and 164.104. These
regulations provide limited circumstances when disclosures are
permitted for judicial and administrative proceedings. See 45 C.F.R. §
164.512.

As HIPAA only applies to health plans, health care clearing houses, or

certain health care providers who transmit health information via electronic means,

its regulations do not apply to Alexandria. Thus, we find that Fox’s petition fails to

state a cause of action against Alexandria pursuant to that act.

INVASION OF PRIVACY

On appeal, Fox further argues that the trial court erred by not allowing

her the opportunity to amend her petition so as to remove Alexandria’s grounds for

its objection of no cause of action. For the first time, she now claims that her petition

contains facts sufficient to state a cause of action for invasion of privacy under either

the Louisiana Constitution or La.Civ.Code art. 2315.

At the conclusion of the hearing on the exception, the trial court stated

that it was dismissing any claim Fox had pursuant to HIPAA. However, it did not

indicate a delay in which Fox could amend her petition to state any other claim she

might have.

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After reviewing the petition, we find that Fox is entitled to continue with

her suit. Although she has failed to state a cause of action pursuant to HIPAA, her

petition reveals that she has stated facts sufficient to plead a cause of action for

invasion of privacy pursuant to Louisiana Constitution, Article 1, § 5. See Taylor v.

Hixson Autoplex of Alexandria, Inc., 00-1096 (La.App. 3 Cir. 3/28/01), 781 So.2d

1282, writ not considered, 01-1539 (La. 9/14/01), 796 So.2d 670. Accepting the facts

pleaded as true and in a light most favorable to Fox, her petition states that Moore,

through her employment with Alexandria, released private information pertaining to

Fox which caused her to suffer general and monetary damages. Article 1, § 5

provides, “Every person shall be secure in his person, property, communications,

houses, papers, and effects against unreasonable searches, seizures, or invasions of

privacy.” Accordingly, we remand this matter to the trial court for further

proceedings on Fox’s claim that she suffered an invasion of privacy as a result of

Alexandria’s release of information concerning her potential work status.

CONCLUSION

For the foregoing reasons, the judgment of the trial court dismissing

Fox’s claims pursuant to HIPAA is affirmed. However, the matter is remanded to the

trial court for further proceedings based on a finding that she has stated a cause of

action for invasion of privacy pursuant to Louisiana Constitution Article 1 § 5. Costs

of this matter are assessed to plaintiff-appellant, Amy L. Fox.

AFFIRMED AND REMANDED.

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