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WV Federal Court Dismisses Claims of IIED and Invasion of Privacy But Allows WVCCPA Claim to Go Forward

By Christopher J. Sears, Esq. posted 05-04-2018 14:12


In a recent decision, the United States District Court for the Southern District of West Virginia examined the evidence necessary to support claims of intentional infliction of emotional distress, invasion of privacy and unlawful debt collection practices under the WVCCPA. See O’Dell v. USAA Fed. Sav. Bank, 2018 U.S. Dist. LEXIS 57980 (D.C.W.Va., April 5, 2018).

In O’Dell, the plaintiff fell behind in payments on a credit card issued by USAA. As a result, USAA began debt collection efforts on the account by sending letters and placing phone calls to the plaintiff’s home, cell, and work numbers. The plaintiff retained a lawyer to assist him with regard to the debt and was given a script which read “PLEASE DON’T CONTACT ME ANYMORE IT MAKES ME NERVOUS. SCOTT STAPLETON OF HUNTINGTON, WEST VIRGINIA IS MY LAWYER.” The plaintiff read the script to a representative of USSA once on January 23, 2013 then hung up. Thereafter, he stopped answering any calls from USAA.

Although USAA’s records did not reflect notice of attorney representation on January 23, 2013, the records did show that the plaintiff called USAA on December 31, 2012 and advised them that he was represented by an attorney, though there was no specific attorney information provided at that time. The plaintiff’s call log showed that USAA called him 183 times over a four-month period. Subsequently, the plaintiff filed a lawsuit against USAA asserting three counts: (1) violations of the West Virginia Consumer Credit and Protection Act; (2) intentional infliction of emotional distress; and (3) invasion of privacy. After discovery, USAA moved for summary judgment on each of the claims.

1. West Virginia Consumer Credit and Protection Act

USAA first challenged the plaintiff’s claim of violation of W.Va. Code, 46A-2-128(e) otherwise known as the “representation provision”. This statute prohibits “any communication with a consumer after it appears that the consumer is represented by an attorney and the attorney’s name and address are known, or could be easily ascertained.” USAA argued that the plaintiff could not prove that USAA “knew” the identity of the plaintiff’s attorney. In this regard, USAA stated that evidence that the plaintiff merely read a script proves only that representative information was given to USAA, not that USAA understood the information conveyed. Thus, the logic goes, it is mere speculation to state that USAA “actually heard and knew” the plaintiff’s attorney’s name when it was read to USAA’s representative. The Court rejected this argument on two basis: (1) whether the USAA representative “heard and knew” of the attorney name was an issue of fact; and (2) the argument ignored the fact that the name and address of the attorney could “easily be ascertained.” On the latter point, the Court noted that a simple internet search of the name Scott Stapleton returned a panoply of listings for the plaintiff’s attorney.

Next, USAA challenged the plaintiff’s claim of violation of W.Va. Code, 46A-2-125(d), otherwise known as the “abuse provision.” At the time the calls were made in 2013, this provision prohibited a debt collector from “causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously, or at unusual times or at time knows to be inconvenient, with the intent to annoy, abuse, oppress or threaten any person at the called number.” This provision was amended in 2015 by  establishing a threshold of 30 calls per week or 10 conversations per week. USAA argued that this threshold should be applied retroactively. In support of this argument, USAA relied on a footnote of a West Virginia Supreme Court decision which refused to consider the amended provision on the basis that it was not in effect at the time of trial in the underlying case. Seizing upon this “at the time of trial” language, USAA maintained that, because the trial in the instant matter would occur after the amendment, then the amended statute should be applied to the 2013 conduct. In denying the motion for summary judgment, the Court in O’Dell noted that “retroactivity is not favored in the law” and that this “antiretroactivity principle” has been codified at W.Va. Code, 2-2-10(bb): “A statute is presumed to be prospective in its operation unless expressly made retrospective.” Thus, because the West Virginia Legislature had not demonstrated intent to give the statute retroactive force and effect by clear, strong, and imperative words or by necessary implication, the Court concluded that the 2013 version of the statute would apply. Based upon the evidence this case, the Court found that sufficient evidence of abuse existed to survive summary judgment.

2. Intentional Infliction of Emotional Distress

USAA argued that the plaintiff’s evidence in support of his claim for intentional infliction of emotional distress was insufficient as a matter of law. The Court agreed.

Under the law of West Virginia, a plaintiff must establish four elements to maintain an IIED claim:

(1) conduct by the defendant which is atrocious, utterly intolerable in a civilized community, and so extreme and outrageous as to exceed all possible bounds of decency; (2) the defendant acted with intent to inflict emotional distress or acted recklessly when it was certain or substantially certain such distress would result from his conduct; (3) the actions of the defendant caused the plaintiff to suffer emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.

Travis v. Alcon Labs. Inc., 202 W. Va. 369, 504 S.E.2d 419, 425 (W. Va. 1998) (quoting Hines v. Hills Dep’t Stores, 193 Va. 91, 454 S.E.2d 385, 392 (W. Va. 1994)).

The first element presents a high bar for a plaintiff to clear. Bourne, 998 F.Supp.2d at 507. A litigant cannot succeed upon an IIED claim by merely asserting conduct that was “annoying, harmful of one’s rights or expectations, uncivil, [or] mean-spirited.” Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418, 423 (W. Va. 1991). For the claim to survive, there must be a genuine issue as to whether the conduct can “be regarded as atrocious, and utterly intolerable in a civilized community.” Travis, 504 S.E.2d at 425. Whether Defendant’s conduct satisfies the “outrageous” requirement is a question of law.

In this case, the Court concluded that the plaintiff failed to demonstrate that USAA’s conduct met the high bar necessary to maintain the IIED claim. In support of its reasoning, the Court noted that, even if USAA had made unlawful calls, that by itself does not rise to the level of outrageousness. Indeed, there was no evidence that USAA used offensive or threatening language; in fact, the plaintiff simply did not answer the majority of the phone calls. Thus, because the record was devoid of “atrocious” behavior, the plaintiff failed to prove the first element of an IIED claim.

3. Invasion of Privacy

The Court agreed with USAA that the plaintiff failed to prove a claim for invasion of privacy. West Virginia courts recognize that an individual has a protectable right to privacy. Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70, 84 (W. Va. 1983). The law provides four theories under which a plaintiff can prosecute an invasion of privacy claim: (1) an unreasonable intrusion upon the seclusion of another; (2) an appropriation of another’s name or likeness; (3) unreasonable publicity given to another’s private life; and (4) publicity that unreasonably places another in a false light before the public. Id. at 85 (citing Restatement (Second) of Torts §§ 652A-652E (1977)). In this case, the plaintiff claimed that USAA violated his common law right to privacy through both unreasonable intrusion, and unreasonable publicity. The Court found that there was insufficient evidence to support those claims.

With regard to the claim of intrusion upon seclusion, the plaintiff was required  to demonstrate that USAA “intentionally intrude[d], physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, . . . [and that] the intrusion would be highly offensive to a reasonable person.” Harbolt v. Steel of West Virginia, Inc., 640 F.Supp.2d 803, 817 (S.D.W. Va. 2009). As it pertains to debt collection calls, the Courts in West Virginia have consistently found that repeated, persistent calling can substantiate an invasion of privacy claim. But in order to survive summary judgment, a plaintiff must show that the “phone calls were made within a short time frame or that they were placed at inappropriate hours.” Here, the Court found that, even though multiple phone calls were placed in a single day, the calls would not constitute “highly offensive” conduct to a reasonable person. For example, even though the plaintiff’s log showed as many as five phone calls in a single day, those phone calls were spaced over the course of the day and did not immediately follow each other. Thus, the Court found that these phone calls could not bee seen as placing a substantial burden on the plaintiff’s daily existence.

With regard to the plaintiff’s claim of unreasonable publication of private facts, the Court noted that this claim was based upon a phone call placed to the plaintiff’s place of work where a message was left that USAA had called. In granting summary judgment on this claim, the Court explained that, in order for their to be a finding that USAA unreasonably publicized his personal life, the plaintiff must, at the very least, produce evidence that USAA communicated some information about his personal life. In this regard, merely asking a third party to let the plaintiff know that USAA called, with nothing more, revealed nothing about the plaintiff’s personal life. As such, the plaintiff’s invasion of privacy claim fell short and was dismissed.


There are several take-aways from this case, both good and bad for the debt collection industry:

  1. The strength of the prohibition in Section 128(e) has not diminished. Thus, where it appears that the consumer is represented by counsel, a debt collector should make an effort to affirmatively ascertain the name and address of that attorney.
  2. This case solidifies the West Virginia Supreme Court’s previous finding that the 2015 amendment to Section 125(d) of the WVCCPA is not retroactive. Though argument of retroactivity of 125(d) will fade away after the last pre-amendment claims become time-barred by mid-2019, the retroactivity analysis will live on and will likely be applied to post-2015 amendments. In the future, if the Legislature intends for any amendment to be applied retroactively, then it should state its intent by clear, strong, and imperative words.
  3. The common law claims of IIED and invasion of privacy are definitely stand-alone claims with their own required burdens of proof. Thus, it is not sufficient to simply demonstrate the level of evidence required for a statutory violation of the WVCCPA. Instead, additional evidence must be established that meets the elements of these independent causes of action.