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Panko v. Consolidated Mutual Insurance Co.


decided: January 5, 1970.


Hastie, Chief Judge, and McLaughlin and Van Dusen, Circuit Judges.

Author: Hastie


HASTIE, Chief Judge.

This appeal has been taken from an adverse summary judgment in an action by the appellant against Consolidated Mutual Insurance Company for allegedly inducing a doctor to breach professional and fiduciary duties that he owed to appellant's decedent by divulging information about her condition while she was under his care.

Mrs. Barrett, the appellant's decedent, consulted a cancer specialist in Philadelphia after she slipped and fell in the aisle of a food market operated by Food Fair Stores, Inc., in New Jersey. Mrs. Barrett subsequently brought suit against Food Fair in the United States District Court for the District of New Jersey, alleging that trauma resulting from her fall had activated and aggravated a dormant cancer of the right breast. Thereafter, Consolidated Mutual, Food Fair's liability insurer, wrote to the cancer specialist in his capacity as Mrs. Barrett's treating physician, and requested that he fill out a medical report form relating to Mrs. Barrett's condition. The doctor completed the form and returned it without informing Mrs. Barrett and without obtaining any authorization from her.

In answer to one of the questions on the form, the doctor stated:

"It is clear that this woman's difficulties with advanced carcinoma of the breast were not a result of her accident. Whether the accident exaggerated her troubles is speculative. * * *"

The doctor allegedly discussed Mrs. Barrett's condition with representatives of Food Fair and Consolidated Mutual, and ultimately testified and accepted compensation as an expert witness for Food Fair at the trial of the personal injury action in February, 1967.

Shortly before the trial, the doctor wrote a letter to Mrs. Barrett stating:

"I have been informed by the attornies [sic] for the defense that I am likely to have to respond to subpoena at your trial. I wanted to let you know that this might well turn out to be the case, so that I would not appear to be doing anything behind your back."

Except for this letter, Mrs. Barrett was not advised of the doctor's communications with the insurance company, and she did not consent to the doctor's disclosures at any time.

Mrs. Barrett died on March 17, 1967, and her suit against Food Fair was carried on by her administratrix. A jury verdict in favor of Food Fair in that action was affirmed by this court. Panko v. Food Fair Stores, Inc., 3d Cir.1968, 403 F.2d 62 (per curiam).*fn1

The present suit against Consolidated Mutual for allegedly inducing the doctor to divulge information about Mrs. Barrett's condition was instituted in a state court and removed to the United States District Court for the Eastern District of Pennsylvania on the ground of diversity of citizenship. An amount in excess of $10,000 was claimed as compensation for the loss of the prior personal injury action and as punitive damages. Since jurisdiction is based on diversity, the law of Pennsylvania, including its choice-of-law rules, furnishes the principles to determine liability. Klaxon Co. v. Stentor Elec. Mfg. Co., 1941, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477. However, the district court did not attempt to use the functional approach suggested by Griffith v. United Air Lines, Inc., 1964, 416 Pa. 1, 203 A.2d 796, to solve the difficult choice-of-law problem presented by the facts,*fn2 apparently because it found no significant difference between the relevant laws of New Jersey and Pennsylvania.

The specific conduct alleged in the complaint to establish that the insurance company tortiously induced divulgence of confidential information consisted of requesting the doctor to fill out a medical report form, discussing Mrs. Barrett's condition with the doctor, and securing the doctor's testimony. All of these allegedly wrongful acts were committed by agents of the insurance company after commencement of Mrs. Barrett's negligence suit against Food Fair, and the only injury alleged as the basis for the present action is the loss of that suit.

In order to sustain her cause of action against the insurance company for inducement, plaintiff must be able to show that the doctor's disclosures themselves constituted an actionable wrong,*fn3 and that the wrongful disclosures caused the adverse verdict.*fn4 Since the disclosures made by the doctor during the course of his testimony at trial of the prior negligence action were not wrongful,*fn5 only the pre-trial disclosures could furnish a basis for this action. But even assuming that the pre-trial disclosures were tortious, the allegations of the complaint and the facts established on motion for summary judgment provide no basis for an affirmative finding that the pre-trial disclosures resulted in the specific injury alleged, namely, the loss of Mrs. Barrett's suit against Food Fair for personal injury.*fn6

The judgment will be affirmed.

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