Heard: March 10, 2016.
action commenced in the Superior Court Department on April
for summary judgment and to amend the complaint were heard by
Peter B. Krupp, J.
P. Sorett for the plaintiff.
Jeffrey S. Robbins for the defendant.
Present: Kafker, C.J., Vuono, & Henry, JJ.
case arose from an employee's improper use of
confidential information accessed through her workplace
computer. The employee gave that information to her boy
friend, who used it to intimidate a witness, Mark Adams.
Adams brought this action against the employer, Congress Auto
Insurance Agency, Inc. (Congress Agency or agency) . A
Superior Court judge dismissed four of his five claims. The
case proceeded to discovery on the remaining claim against
the agency that alleged negligent failure to safeguard
Adams's personal information. The same judge subsequently
granted the agency's motion for summary judgment on the
remaining count and in the same memorandum and order denied
Adams's motion to amend his complaint to reinstate the
dismissed claims and to add a claim for violation of 18
U.S.C. §§ 2721-2725. Adams appealed. We affirm in
part and reverse in part.
standard of review of a grant of summary judgment is whether,
viewing the evidence in the light most favorable to the
nonmoving party, all material facts have been established and
the moving party is entitled to judgment as a matter of
law." Lev v. Beverly
Enterprises-Massachusetts, Inc., 457 Mass. 234, 237
(2010) (Lev), quoting from Cargill, Inc.
v. Beaver Coal & Oil Co., 424 Mass.
356, 358 (1997). The burden rests on the defendant, as the
moving party, to affirmatively demonstrate the absence of a
genuine issue of material fact on every relevant issue.
in the light most favorable to Adams, as required at this
stage of the proceedings, the summary judgment record
discloses the following facts. The Congress Agency hired
Elizabeth Burgos in August, 2003, as a customer service
representative, promoting her to customer service manager in
2010. Burgos, through her work computer, had access to the
data systems of Safety Insurance Company (Safety), and,
through Safety's internet portal, to records maintained
by the Registry of Motor Vehicles (RMV). Safety insures
2010, the Congress Agency, by its president and owner, Gordon
Owades, drafted a data security plan for ensuring the
protection of personal information of the residents of the
Commonwealth. Owades trained all agents, including Burgos, on
the data security policies. One company policy prohibited
employees from accessing or using a driver's personal
information, obtained in the course of the employee's
work, for personal purposes. In addition, each time a
Congress Agency employee wished to access the RMV database
through the Safety portal, Safety required the agent to
affirmatively agree to use the information obtained for one
of four limited purposes: claims investigation activities,
anti-fraud activities, rating, and
13, 2012, Burgos's boy friend, Daniel Thomas, engaged in
a high-speed flight from police while driving Burgos's
Mercedes automobile. At that time, Thomas was on supervised
release for a Federal firearm violation, and was driving
without a valid license. During his flight, Thomas struck a
vehicle operated by the plaintiff, Mark Adams. Thomas
abandoned the Mercedes and fled.
24, 2012, Adams, who had filed a claim against Burgos's
automobile policy, gave a statement to a Safety claims
adjuster investigating the accident. He informed the adjuster
that he could identify the driver of the Mercedes and
provided his contact information, including his cell phone
number and home address.
Burgos reported her vehicle stolen to the police, and
subsequently filed her own insurance claim for the loss with
Safety. Burgos, using her access to confidential data through
the agency, obtained information about her own claim, and
learned Adams's identity as the individual who had filed
a claim against her Safety insurance policy and his contact
information. The next day, Adams received a threating
telephone call from Thomas. Adams immediately reported the
threat to the authorities.
Massachusetts State police visited the agency's office on
August 28, 2012; Burgos refused to speak with them. The
Congress Agency continued to provide Burgos access to the
Safety databases and to the RMV records. On December 13,
2012, Owades terminated Burgos for "her serious misuse
of access to confidential information."
January 9, 2013, in the Boston Municipal Court (BMC), Burgos
and Thomas admitted to sufficient facts and pleaded guilty to
witness intimidation and conspiracy in connection with the
threat made to Adams. In particular, Burgos admitted that she
had used her position at the agency to obtain Adams's
date of birth, address, and cell phone number.
in this matter provided additional information about an
earlier incident when Burgos engaged in criminal behavior
with, or to protect, her boy friend. Specifically, on June
19, 2010, while Thomas and Burgos were driving cross country,
the Iowa State police stopped the vehicle for speeding. In
the vehicle the police discovered two loaded semi-automatic
firearms concealed in Burgos's purse, ammunition, a
receipt for the purchase of additional ammunition in
Burgos's day book, a half-face mask, and a police
scanner. One handgun was stolen; the other had its serial
number defaced. Thomas claimed he knew nothing about the
weapons and ...