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Kresal v. Secura Insurance Holdings, Inc.

United States District Court, W.D. Wisconsin

June 11, 2018

TANNER KRESAL, on behalf of himself and all others similarly situated, Plaintiff,
v.
SECURA INSURANCE HOLDINGS, INC., a/k/a SECURA INSURANCE, INC., a/k/a SECURA INSURANCE, A Mutual Company, a/k/a SECURA INSURANCE COMPANIES and KOHN LAW FIRM, S.C., Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         In this civil action, plaintiff Tanner Kresal, on behalf of himself and other similarly situated, claims that defendants SECURA Insurance company and Kohn Law Firm, S.C., violated the Driver's Privacy Protection Act, 18 U.S.C. § 2721 et seq. (“DPPA”). Specifically, plaintiff alleges that defendants publicly disclosed Kresal's driver's license number on forms for a proposed bench warrant and certificate of judgment submitted to the Circuit Court for Eau Claire County, Wisconsin. Before the court is defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting that plaintiff failed to allege: (1) the information was obtained from a “motor vehicle record”; and (2) the claimed conduct falls outside uses expressly permitted by the DPPA. (Dkt. #30.) On June 6, 2018, the court held an oral argument on defendants' motion to dismiss. Having considered the parties' arguments, the court concludes that plaintiff's allegations foreclose a finding that the information was obtained from the motor vehicle record. Accordingly, defendants' motion to dismiss will be granted.

         ALLEGATIONS OF FACT[1]

         On or about June 2, 2014, plaintiff Tanner Kresal was involved in an automobile accident with a van owned by Abby Vans, Inc. Defendant Secura insured Abby at the time of the accident, and it paid claims covering damages to Abby's van. Then, as Abby's subrogee, Secura brought a state court action to recover those payments from Kresal, eventually obtaining a money judgment in Secura Ins. v. Kresal, No. 2015-CV-000681 (Eau Claire Cty. Cir. Ct. March 7, 2016). Presumably after informal collection efforts failed, Secura retained counsel, co-defendant Krohn Law Firm to pursue collection, which it did by filing for a proposed bench warrant and supporting documentation in the form of a “Certificate of Judgment” against Kresal in Eau Claire County Circuit Court on or about September 9, 2016. Both of these documents were prepared using forms provided by that court or by the Wisconsin Department of Transportation. (Shafer Decl., Exs. 1, 2 (dkt. ##14-1, 14-2).)[2]

         Because the proposed bench warrant and Certificate of Judgment each included plaintiff's actual driver's license number (“DLN”), plaintiff alleges these filings included “personal information” as that term is defined by 18 U.S.C. § 2725(3). (Am. Compl. (dkt. #24) ¶ 64.) Plaintiff also alleges that the DLN “was derived from Plaintiff's Wisconsin driver's license card.” (Id. at ¶ 66.) In particular, plaintiff alleges that “[f]ollowing an accident with a person insured by Defendant SECURA, Plaintiff was directed, instructed and ordered by law enforcement officials to give them his Wisconsin's driver's license card.” (Id. at ¶ 71.) Consistent with that instruction, plaintiff further alleges he “gave them his Wisconsin driver's license card.” (Id. at ¶ 72.) Law enforcement then listed Kresal's DLN on an accident report, which was eventually obtained by defendants form the police. (Id. at ¶¶ 74-75.)

         Plaintiff further alleges that the disclosure of his DLN was “not essential to serve any permissible purpose under 18 U.S.C. § 2721(b).” (Id. at ¶ 80.) Material to defendant's motion, plaintiff alleges that “Defendants are not a ‘government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions' when they published Plaintiff's DLN in the aforementioned state court filings.” (Id. at ¶ 91 (citing 18 U.S.C. § 2721(b)(1)).) Plaintiff similarly alleges that “Defendants were not using Plaintiff's DLN ‘in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including . . . the execution or enforcement of judgment and orders.” (Id. at ¶ 94 (citing 18 U.S.C. § 2721(b)(4)).) With respect to uses of personal information expressly permitted by the DPPA, plaintiff finally points out that as of “July 1, 2016, the Wisconsin Supreme Court[] expressly prohibited the public disclosure of a person's DLN in Wisconsin State Court filings, by virtue of its enactment of Wis.Stat. sec. 801.19, thus eliminating any ‘permissible purpose' for the disclosure of a person's DLN in Wisconsin court filings.” (Id. at ¶¶ 91, 94.)

         OPINION

         As a general matter, the DPPA provides that:

A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity:
(1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section[.]

18 U.S.C.A. § 2721(a). The Act also provides that it “shall be unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) of this title.” 18 U.S.C. § 2722(a); see also 18 U.S.C. § 2721(c) (prohibiting resale and redisclosure). Moreover, the Act creates a private right of action against “[a] person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter.” 18 U.S.C.A. § 2724(a); see also Reno v. Condon, 528 U.S. 141, 146 (2000) (describing private remedies).

         In subsection (b), the DPPA sets forth 14 such “permitted uses, ” two of which are pertinent to the present motion to dismiss:

(1) For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions. . . .
(4) For use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State, or local court or agency or before any self-regulatory body, including the service of process, investigation in anticipation of litigation, and the execution or enforcement of ...

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