CRONE, Judge.
Roukaya Ali appeals a summary judgment in favor of Alliance Home Health Care, LLC ("Alliance"), L.J.L. Enterprises, Inc. ("LJL"), and LJL's sole owner Larry J. Logsdon (collectively "Appellees") on her claims of defamation, malicious prosecution, false imprisonment, intentional infliction of emotional distress, and vicarious liability, all stemming from Appellees' claims that she stole jewelry from two of her home healthcare patients.
The undisputed facts are as follows. Alliance is a home healthcare company in the business of providing skilled home nursing, therapy, and companion services for senior adults who often cannot care for themselves. Ali, a certified nurse's aide ("CNA") and certified home health aide
On January 31, 2011, Alliance patient Albert Barnes and his wife discovered that twelve pieces of jewelry were missing from their home. Among the missing items was Barnes's unique ring with Greek letters, small diamonds, and an anchor pin attached to it. The Barneses notified the Indianapolis Metropolitan Police Department ("IMPD"), which began an investigation. Barnes's wife told IMPD that she remembered seeing the jewelry on January 28, and Barnes said that he wore some of the rings on January 29. The couple also reported the theft to their insurance company, which in turn notified Alliance. Alliance's human resources department began an internal investigation and subsequently hired an outside company, LJL, to conduct the investigation. LJL's sole owner and president is Logsdon, a retired sheriff's department investigator. Logsdon checked the employee schedule and found that only two Alliance employees had worked at the Barnes residence between January 28 and January 31, 2011. One of those was Ali, who did not regularly work for Barnes but had worked at his home as a fill-in on January 30 and 31 from 11:00 a.m. to 5:00 p.m.
On February 7, 2011, Betty McIntyre, the regular fulltime nurse for another Alliance patient, Jack Morris, discovered that Morris was not wearing his Masonic ring. Morris was elderly and needed 24/7 care, and McIntyre knew that he never took off his Masonic ring. She noticed that he was wearing a different ring, one with Greek letters, diamonds, and an anchor pin attached. Morris's son reported the theft of the Masonic ring to IMPD. When Alliance received word of the Morris theft, Logsdon went to interview McIntyre, who told him that she last remembered seeing the Masonic ring on Morris's finger on February 4, 2011, and that she had heard Morris say, on February 7, 2011, that his ring was missing and had been replaced with a different one. Logsdon also interviewed Theresa Azikiwe, the Alliance employee who worked for Morris on February 9, 2011. Azikiwe reported that Morris had pointed to the ring with the Greek letters, diamonds, and anchor pin and said that he wanted his son to have it.
The Barneses subsequently identified the unique anchor ring found on Morris's finger as one of the items stolen from their residence. Logsdon consulted the Alliance schedules and discovered that Ali had worked as fill-in at Morris's residence on February 6, 2011. Six other Alliance employees had worked for Morris, but a comparison of the schedules showed that Ali was the only employee who had worked for both Barnes and Morris during the timeframes that they had pinpointed for the thefts. Barnes and Morris lived about fourteen miles apart and were not acquainted.
Alliance terminated Ali's employment on February 27, 2011. When Ali applied for unemployment benefits, the Department of Workforce Development ("DWD") sent Alliance a form inquiring as to the reason for her termination. Alliance responded that the reason was theft. Alliance also contacted the Indiana State Department of Health ("ISDH") concerning the results of its theft investigation against Ali. ISDH conducted an evidentiary hearing and determined that Ali had misappropriated the jewelry from Barnes and Morris. As a result, ISDH revoked Ali's healthcare certifications.
IMPD conducted an investigation of both thefts and interviewed numerous witnesses and suspects, including Ali. Alliance and Logsdon cooperated by providing IMPD with the information gathered during
Marion County Deputy Prosecutor Robert Reel reviewed the evidence submitted by IMPD and concluded that probable cause existed to charge Ali with both thefts. A Marion Superior Court judge made a determination of probable cause and issued a warrant for Ali's arrest. The State charged her with two counts of class D felony theft. She is an African immigrant subject to deportation for a felony conviction. She was acquitted following a bench trial.
Ali filed a civil action against Appellees, alleging defamation, malicious prosecution, false imprisonment, negligent supervision (subsequently withdrawn), vicarious liability, intentional infliction of emotional distress, and negligent infliction of emotional distress. Appellees sought summary judgment, which the trial court granted. The trial court subsequently issued an order clarifying that its summary judgment order pertained to LJL and Logsdon as well as to Alliance. Ali now appeals. Additional facts will be provided as necessary.
Ali maintains that the trial court erred in granting summary judgment in favor of Appellees. We review a summary judgment de novo, applying the same standard as the trial court and drawing all reasonable inferences in favor of the nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.2014). In conducting our review, we consider only those matters that were designated at the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229 (Ind.Ct.App. 2011). Summary judgment is appropriate if the designated evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule 56(C).
The moving party bears the initial burden of demonstrating the "absence of any genuine issue of fact as to a determinative issue." Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009). Then the burden shifts to the nonmoving party to "come forward with contrary evidence" showing a genuine issue for the trier of fact. Id. at 762. The nonmoving party cannot rest upon the allegations or denials in the pleadings. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind.Ct.App.2005). In Hughley, our supreme court emphasized that the moving party bears an onerous burden of affirmatively negating the opponent's claim. 15 N.E.3d at 1003. This approach is based on the policy of preserving a party's day in court, thus erring on the side of allowing marginal cases to proceed to trial on the merits rather than risking the short-circuiting of meritorious claims. Id. at 1003-04. A trial court's grant of summary judgment arrives on appeal clothed with a presumption of validity. Williams, 914 N.E.2d at 762.
We note that the trial court issued findings of fact and conclusions thereon as part of its summary judgment order. Special findings are neither required nor binding on appeal of a summary judgment. New Albany Preservation Comm'n v. Bradford Realty, Inc., 965 N.E.2d 79, 84 (Ind.Ct.App.2012). However, the findings offer valuable insight into the trial court's rationale and are helpful in facilitating our review. Id.
Ali submits that the trial court erred in granting summary judgment
Haegert, 953 N.E.2d at 1230 (citations omitted).
"[A] plaintiff who sues for defamation must set out the alleged defamatory statement[s] in the complaint." Id. "When specific statements that are alleged to be defamatory have not been sufficiently identified in a plaintiff's complaint, an award of summary judgment for the defendant is proper." Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944, 956 (Ind.Ct.App.2014), trans. denied (2015).
In Counts II and III of her complaint,
Appellant's App. at 32-33. This allegation does not specifically identify the statements alleged to have been made by each of the several named individuals "or other agents." Id. Nor does it specify the persons to whom (or in front of whom) the alleged defamatory statements were published. We find that it lacks the specificity necessary to state a claim for defamation. Ali's subsequent attempts in both her brief in opposition to summary judgment and her appellant's brief to add specific examples of allegedly defamatory statements are not sufficient to salvage her claims. Notwithstanding, we address her supplemental allegations of defamatory statements as best we can discern them.
Appellees assert that the communications cited by Ali in her brief and in her motion in opposition to summary judgment are protected by qualified privilege or by statute.
Appellees claim that their statements to law enforcement concerning Ali's connection to the thefts are subject to the qualified privilege exception. It is well established that "communications made to law enforcement to report criminal activity are qualifiedly privileged." Williams, 914 N.E.2d at 763 (quoting Kelley v. Tanoos, 865 N.E.2d 593, 600 (Ind. 2007)). This furthers the compelling public interest of encouraging citizens not only to report suspected wrongdoing but also to assist law enforcement in investigating and apprehending persons who engage in criminal activity. Id. at 762-63.
Id. at 765.
Significantly, it was Barnes's and Morris's relatives, not Appellees, who initiated the contact with IMPD by reporting the thefts. Appellees simply cooperated with IMPD by sharing the results of their internal investigation. Ali now claims Appellees acted with ill will based on her race and immigrant status. She relies on our recent decision in Bah v. Mac's Convenience Stores, LLC, claiming that this renders summary judgment inappropriate because her claim hinges on state-of-mind and witness credibility. 37 N.E.3d 539, 548-49 (Ind.Ct.App.2015), trans. denied (2016).
We find Bah distinguishable. There, the plaintiff/employee had a contentious relationship with her supervisor that included his giving her a negative evaluation, his transferring her to a smaller store over her objection, her attempts to go over his head to report malfeasance, and her refusal to resign. Id. In contrast, here, Ali designated no evidence of any history of a negative relationship with Alliance personnel. Logsdon did not know her or even know of her until he began his investigation, and his conclusions were based largely on information contained in the employee schedules showing that she was the link between the two unacquainted victims. None of this implicates her race or immigrant status, and she neither raised such an allegation in her complaint nor designated evidence to that effect. Nor has she designated evidence substantiating her claim that Logsdon essentially commanded IMPD to arrest her. In short, she failed to designate evidence to overcome the qualified public interest privilege concerning Appellees' communications with law enforcement.
Ali also claims that Alliance's correspondence with its insurance agent is defamatory. Alliance asserts that these communications are protected by the common interest privilege.
Cortez v. Jo-Ann Stores, Inc., 827 N.E.2d 1223, 1232-33 (Ind.Ct.App.2005) (citations omitted).
Here, Alliance's human resource manager Roselyn Howard sent an email titled "Liability Claim" to the company's insurance agent. Appellant's App. at 281. The email briefly explained that a family member of Morris had inquired about whether Alliance's insurer would reimburse Morris the cost of replacing his stolen ring. In the email, Howard indicated her intent to fax the applicable police reports. She also provided contact information for Morris's son in case the insurer needed additional information. The email included a standard "CONFIDENTIALITY NOTICE" indicating that the communication was "proprietary, privileged, confidential and/or exempt from disclosure under applicable law." Id.
We conclude that the communication between Alliance and its insurer was a good faith attempt to discern whether the insurer would cover its client's loss, an issue of common interest to both insurer and insured. The communication was limited in scope and nature and included an adequate admonition regarding its confidential nature. As such, it was protected by the qualified common interest privilege as a matter of law.
Ali asserts that Appellees defamed her to ISDH, thereby causing her to lose her licenses to practice as a CNA and CHHA. Indiana Code Section 16-28-13-9(3) states, "A person ... who in good faith ... makes a report to the state department [of health] or the nurse registry [] is immune from both civil and criminal liability arising from those actions." Importantly, Alliance did not submit its report to ISDH until after IMPD and Logsdon had completed their independent investigations and concluded that Ali had committed the thefts. ISDH then conducted a hearing and made an independent determination that Ali had taken the jewelry from the victims. Logsdon's testimony was merely part of that hearing. Ali did not designate evidence indicating that Appellees had ill will or a lack of belief in the truth of the findings contained in their report to ISDH. This is exactly the type of information protected by the statute.
Similarly, Alliance's communications with DWD are privileged pursuant
Here, Alliance did not initiate contact with DWD. Rather, DWD initiated contact with Alliance after Ali sought unemployment benefits. As required by law, Alliance filled out a form responding to DWD's inquiry concerning the reason for Ali's termination, theft. The record is devoid of any designated evidence indicating that Alliance acted with ill will or a lack of good faith in simply complying with this statutory obligation. Rather, this is precisely the type of communication that the statute is intended to protect.
The designated evidence shows that Logsdon made statements to IMPD, the victims, and certain Alliance healthcare workers as part of his investigation. As discussed, his communications to IMPD are protected by the qualified privilege. As for his communications to the theft victims concerning the results of his investigation, we conclude that they do not amount to defamation because they were not false and defamatory. Haegert, 953 N.E.2d at 1230 (stating that in a defamation action, plaintiff must establish that defendant made statements that were both "false and defamatory"). Instead, he was simply reporting that the evidence led him to conclude that Ali was the thief and that IMPD was charging her as such. This is also true of his statement to another Alliance employee previously under suspicion. Ali characterizes these statements as direct accusations that she stole the jewelry rather than merely recitations of Logsdon's investigation results. Even assuming that Logsdon's statements were so direct, Ali has designated no evidence to support an inference that his statements were knowingly false when made. Rather, she simply relies on her subsequent criminal acquittal and launches an unsubstantiated claim of bigotry against a person who had no history with her and did not even know of her prior to the investigation. Based on the foregoing, we conclude that the trial court did not err in granting summary judgment on this or any of Ali's defamation claims.
Ali maintains that the trial court erred in granting summary judgment on her malicious prosecution claim. To establish a case for malicious prosecution, the plaintiff must prove that "(1) the defendant instituted or caused to be instituted an action against the plaintiff; (2) the defendant acted maliciously in so doing; (3) the defendant had no probable cause to institute the action; and (4) the original action was terminated in the plaintiff's favor." Crosson v. Berry, 829 N.E.2d 184, 189 (Ind.Ct.App.2005), trans. denied. "[A] judicial determination of probable cause in a criminal proceeding constitutes prima facie evidence of probable cause in a subsequent civil lawsuit alleging malicious prosecution." Glass v. Trump Ind., Inc., 802 N.E.2d 461, 467 (Ind.Ct.App.2004). The plaintiff may overcome such a prima facie showing of probable cause only by demonstrating that it was induced by false testimony, fraud, or other improper means. Id.
In short, the prosecutor, not Appellees, initiated the action based on IMPD's investigation, and Ali failed to designate evidence to rebut the prima facie judicial determination of probable cause. Thus, her malicious prosecution claim fails as a matter of law.
Ali contends that the trial court erred in granting summary judgment on her false imprisonment claim. The tort of false imprisonment amounts to an "unlawful restraint upon one's freedom of movement or the deprivation of one's liberty without consent." Miller v. City of Anderson, 777 N.E.2d 1100, 1104-05 (Ind. Ct.App.2002), trans. denied (2003). Below, Ali never alleged that Appellees unlawfully detained or restrained her.
Where the plaintiff claims false arrest, she must demonstrate the absence of probable cause to make the arrest. Id. at 1104. "Probable cause for arrest is demonstrated by facts and circumstances known to the arresting officer which would warrant a person of reasonable caution and prudence in believing that the accused had committed or was committing a criminal offense." Id. Where "the plaintiff in a false arrest action fails to demonstrate the absence of probable cause, or if the record as a whole reflects probable cause for the arrest, then the plaintiff's case must fail." Id.
Ali alleges that she never would have been arrested in the first place had Appellees not provided false information to IMPD. In other words, her claim flows from what she deems a false arrest and imprisonment based on false information. Acting on evidence from IMPD, the prosecutor determined that probable cause existed to charge Ali with theft, and the criminal court made a determination to the same effect. A judicial determination
Nothing in the designated evidence shows malicious or fraudulent intent on the part of Appellees. The peculiar circumstances of Barnes's ring ending up on the finger of Morris, a perfect stranger living fourteen miles away, as a replacement for Morris's missing ring led Appellees to check for a link between the two patients. Documentary evidence in the form of employee schedules showed that link to be Ali, the only home healthcare worker who cared for each man immediately before his jewelry was discovered missing. Simply put, Ali failed to designate evidence indicating a malicious or fraudulent motive. Thus, the trial court did not err in granting summary judgment on Ali's false imprisonment claim.
The tort of intentional infliction of emotional distress ("IIED") occurs when the defendant "(1) engages in extreme and outrageous conduct (2) which intentionally or recklessly (3) causes (4) severe emotional distress to another." Bah, 37 N.E.3d at 549 (quoting Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind.Ct. App.2011)). The requirements to prove this tort are rigorous, and at its foundation is "the intent to harm the plaintiff emotionally." Id. at 550. As often quoted from Comment d of the Restatement (Second) of Torts Section 46 (1965),
Id. The question of what amounts to extreme and outrageous conduct depends in part on prevailing cultural norms and values, and "[i]n the appropriate case, the question can be decided as a matter of law." Id.
This is one of those cases. Ali designated no evidence to indicate that Alliance intended to cause her emotional harm. Instead, the designated evidence shows that she had no past incidents during her four-year employment that would have caused her superiors to single her out for detrimental treatment. Cf. Bah, 37 N.E.3d at 548-49 (where employee and supervisor had contentious relationship that included employee's objection to her transfer to smaller store, refusal to resign, negative evaluation, and going over supervisor's head to report concerns). Similarly, Ali designated no evidence indicating that Logsdon, an independent contractor hired to conduct Alliance's internal theft investigation, knew or even knew of Ali before interviewing her. Rather, Ali was just one of several Alliance home healthcare employees interviewed as part of the investigation. Logsdon simply followed
Finally, Ali asserts that the trial court erred in granting summary judgment on her vicarious liability claim. Under the doctrine of respondeat superior, vicarious liability will be imposed upon an employer whose employee commits a tort while acting within the scope of employment. Barnett v. Clark, 889 N.E.2d 281, 283 (Ind.2008). By definition, respondeat superior requires that there be an underlying tort in the first place and that the underlying tort be incidental to the employee's authorized conduct or, to an appreciable extent, done to further the employer's business. Id.
Here, Ali did not allege any tort by an individual employee of Alliance. As for whether Logsdon's conduct can be attributed to Alliance, we observe that Logsdon was not an employee of Alliance. He was sole owner and employee of LJL and was merely hired as an independent contractor to conduct an investigation of alleged thefts committed against Alliance's home healthcare patients. We have long held that, subject to specific exceptions, a principal is not liable for the torts of independent contractors. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). The exceptions, none of which apply here, are:
Id.
As previously discussed, Logsdon did not commit a tort. Thus, respondeat superior does not apply against any Appellees as a matter of law. Even if Logsdon's conduct had amounted to an actionable tort, it would not be chargeable to Alliance. The trial court did not err in granting summary judgment on this issue. Accordingly, we affirm.
Affirmed.
VAIDIK, C.J., and BAILEY, J., concur.
