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Adams v. Congress Auto Insurance Agency, Inc.

Appeals Court of Massachusetts, Middlesex

December 21, 2016

MARK ADAMS
v.
CONGRESS AUTO INSURANCE AGENCY, INC.

          Heard: March 10, 2016.

         Civil action commenced in the Superior Court Department on April 16, 2013.

         Motions for summary judgment and to amend the complaint were heard by Peter B. Krupp, J.

          Henry P. Sorett for the plaintiff.

          Jeffrey S. Robbins for the defendant.

          Present: Kafker, C.J., Vuono, & Henry, JJ.

          HENRY, J.

         This 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.

         1. Summary judgment.

         "The 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. Ibid.

         a. Facts.

         Viewed 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 Burgos's vehicle.

         In 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 underwriting.[1]

         On July 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.

         On July 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.

         Meanwhile, 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.[2] Adams immediately reported the threat to the authorities.

         The 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."

         On 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.

         Discovery 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 ...


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