
    Matthew G. ALESSI v. Thomas E. LOEHN and Safeway Insurance Company of Louisiana.
    No. 2011-CC-1914.
    Supreme Court of Louisiana.
    Dec. 16, 2011.
   PER CURIAM.

hln 2005, Matthew Alessi was involved in an accident with an insured of Safeway Insurance Company of Louisiana (“Safeway”), and made a claim against Safeway. In connection with that claim, Mr. Alessi voluntarily submitted his medical records and bills to Safeway. Mr. Alessi thereafter settled his claim.

Subsequently, Mr. Alessi was a passenger in a vehicle involved in an accident. Several occupants of the vehicle filed suit against Barriere Construction Co. (“Barri-ere”) as a result of this accident, but Mr. Alessi did not. In connection with this suit, Barriere’s attorney served a subpoena on Safeway to produce “a copy of your entire file including, but not limited to, all claims made by, or on behalf of, Matthew Alessi.” Safeway complied with the subpoena, producing its file materials, as well as Mr. Alessi’s medical records and bills received in connection with the 2005 accident.

Mr. Alessi then filed the instant suit against Safeway, alleging the release of his medical records and bills constituted an invasion of privacy. Safeway filed a motion for summary judgment, arguing it did not violate plaintiffs privacy interests |2because it produced Mr. Alessi’s records in response to a valid subpoena duces te-cum issued by the district court.

After a hearing, the district court denied Safeway’s motion for summary judgment. Safeway applied for supervisory review of this ruling. The court of appeal denied relief as to the invasion of privacy claim. This application followed.

In Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1886, 1389 (La.1979), we explained that an actionable invasion of privacy occurs only when the defendant’s conduct is unreasonable and seriously interferes with the plaintiffs privacy interest. The reasonableness of the defendant’s conduct is determined by balancing the conflicting interests at stake; the plaintiffs interest in protecting his privacy from serious invasions; and the defendant’s interest in pursuing his course of conduct. Id.

Applying these precepts to the case at bar, we find the uncontested facts establish Safeway did not act unreasonably in releasing Mr. Alessi’s medical records and bills in response to Barriere’s subpoena. The documents at issue were voluntarily submitted by Mr. Alessi to Safeway, without any restrictions on their use. Safeway had no fiduciary relationship with Mr. Al-essi to obligate it to protect his records, nor is Safeway an entity covered under the state or federal laws relating to privacy of medical records. Most importantly, Safeway did not produce the records in bad faith; rather, it did so pursuant to a subpoena validly issued by the district court. Considering these factors, we conclude Mr. Alessi is unable to establish a claim for invasion of privacy as a matter of law.

| a Accordingly, the writ is granted. The judgment of the district court is reversed, and judgment is rendered in favor of Safeway Insurance Company of Louisiana, dismissing Mr. Alessi’s claim for invasion of privacy.

JOHNSON, J., dissents.

KNOLL, J., dissents and assigns reasons.

KNOLL, J.

11With all due respect, I dissent, as I believe plaintiff, Matthew Alessi, has established a triable issue of fact as to whether defendant Safeway Insurance Company of Louisiana committed an actionable breach of his privacy.

As this Court recognized in Parish National Bank v. Lane, 397 So.2d 1282, 1286 (1981), there are four types of actionable tort claims based on breach of a privacy interest: (1) public disclosure of embarrassing private facts; (2) publicity which places the individual in a false light in the public eye; (3) appropriation of an individual’s name and likeness for another’s advantage; and (4) intrusion onto seclusion or solitude. Id. (quoting William L. Prosser, Privacy, 48 Cal. L.R. 383 (1960)). A violation of any of these privacy rights has been found to constitute a breach of a duty under La. Civ. C. art. 2315. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1389 (1979). This case involves the right to be free from public disclosure of embarrassing private facts, which has long been recognized in this state. See Denis v. LeClerc, 1 Mart, (o.s.) 297 (La.1811) (granting plaintiff relief where defendant had wrongfully published plaintiffs confidential letters).

The threshold question in a right to privacy claim is whether the plaintiff has |2a “privacy interest” in the information which he wishes to keep secret. Parish National Bank, 397 So.2d at 1286. There can be no dispute plaintiff Alessi has a protectable privacy in keeping his medical records private and confidential. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977); State v. Skinner, 08-2522, pp. 6-10 (La.5/5/2009), 10 So.3d 1212, 1216-18. In State v. Skinner this Court unequivocally stated: “We hold that a right to privacy in one’s medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable.” Id. at 1219.

Safeway argues Alessi waived his privacy right in his medical records by “voluntarily submitting” those records in connection with his prior automobile accident. Plaintiff did not give Safeway those records voluntarily; he did so because a plaintiff in a personal injury suit is required by law to allow discovery into his medical records. La. C. Evid. art. 510(B)(2)(a). Although Alessi waived any privacy rights to his medical records for the purposes of that claim, there is no evidence he intended to waive his privacy rights in perpetuity and give Safeway the right to release those records to anyone who requested them through discovery. Safeway has not introduced any evidence showing Alessi knowingly and purposefully effected such a broad waiver of his right to privacy with respect to his medical records.

The next question is whether the defendant’s disclosure of those private records was “unreasonable” and “seriously interferes with the plaintiffs privacy interest.” Parish National Bank, 397 So.2d at 1286. Determining whether the defendant’s actions were “unreasonable” requires a balancing test between the defendant’s interest in pursuing its course of conduct against the plaintiffs interest in protecting his privacy. Id.

Here, the plaintiffs strong right to privacy in his medical records far 1 outweighs any interest Safeway may have in disclosing those records to a third party. Safeway argues its countervailing interest was responding to a subpoena it received from co-defendant Thomas Loehn. However, the existence of a protected privacy right “does not evaporate merely because confidential health-care records can be or have been duly subpoenaed in connection with a court proceeding.” Washburn v. Rite-Aid Corp., 695 A.2d 495, 498 (R.I.1997). Safeway could have moved to quash the subpoena as irrelevant, overbroad, and intrusive or, at the least, contacted Alessi to inform him of the subpoena and give him a chance to object. Considering plaintiff was not a party to the second lawsuit, there was no valid reason for those medical records to be made available in discovery. Indeed, this Court has held the medical records of a non-party to a lawsuit are not the proper subject of discovery unless and until there has been a contradictory hearing before the trial court. Moss v. State, 05-1968, p. 21 (La.4/4/2006), 925 So.2d 1185, 1199-1200.

Given the strong privacy interests which plaintiff has in protecting the confidentiality of his medical records and the nonchalance with which Safeway disseminated those highly confidential records, a reasonable jury could find an actionable breach of plaintiffs right to privacy. The lower courts were correct in denying the motion for summary judgment, and I would deny the defendant’s writ. 
      
      . Barriere’s attorney, Thomas Loehn, was also named as defendant in the suit. The claims against him are not at issue for purposes of this opinion.
     
      
      . Mr. Alessi also asserted a claim for intentional infliction of emotional distress. The court of appeal granted Safeway’s motion for summary judgment as to this claim. Because Mr. Alessi did not seek relief in this court, this portion of the court of appeal’s judgment is not at issue.
     
      
      . Article 2315 states: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”
     
      
      . See, e.g., Penton v. City of Hammond Police Department, 07-2352 (La.App. 1 Cir. 5/2/08), 991 So.2d 91, 96 (granting motion to quash subpoena for non-party medical records: "Captain Miller is not a party to this matter, and [his] medical records are confidential and have absolutely no bearing on the issue”); Coulter v. Murrell, No. 10-102, 2011 WL 666894, at *4, 2011 U.S. Dist. LEXIS 14922, at *10 (S.D.Cal. Feb. 14, 2011) (granting motion to quash subpoena of non-party medical records as irrelevant); Ingram v. Mutual of Omaha Ins. Co., 170 F.Supp.2d 907, 911-12 (W.D.Mo.2001) (finding valid claim for invasion of privacy where insurance company chose to comply with overbroad subpoena rather than move to quash).
     