Kresal, Tanner v. SECURA Insurance Holdings, Inc. et al
Filing
41
OPINION AND ORDER granting 30 Defendants' Motion to Dismiss. Signed by District Judge William M. Conley on 6/11/18. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
TANNER KRESAL, on behalf of himself
and all others similarly situated,
v.
Plaintiff,
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.,
OPINION AND ORDER
17-cv-766-wmc
Defendants.
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
In resolving a motion to dismiss under Rule 12(b)(6), the court takes all of the factual allegations
in the complaint as true and draws all inferences in plaintiff’s favor. Killingsworth v. HSBC Bank
Nev., 507 F.3d 614, 618 (7th Cir. 2007).
1
The documents were actually filed with the court on September 12, 2016. The court may consider
the filings themselves in deciding the pending motion to dismiss because both were referenced in
the complaint and central to plaintiff’s claims. See Geinosky v. City of Chi., 675 F.3d 743, 745 (7th
Cir. 2012) (“A motion under Rule 12(b)(6) can be based only on the complaint itself, documents
attached to the complaint, documents that are critical to the complaint and referred to in it, and
information that is subject to proper judicial notice.”).
2
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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
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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,
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including the service of process, investigation in anticipation of
litigation, and the execution or enforcement of judgments and
orders, or pursuant to an order of a Federal, State, or local
court.
18 U.S.C.A. § 2721(b).
Defendants argue that dismissal of the amended complaint is appropriate here on
two, independent grounds: (1) plaintiff failed to plausibly allege that his driver’s license
number was obtained “from a motor vehicle record,” as required under § 2722(a); and (2)
plaintiff failed to allege that defendants’ use does not fit within either of the two of the
permitted uses quoted above under § 2721(b). Because the court finds the first ground
dispositive, it need no address whether either of the permitted use exceptions apply.
As set forth above, for defendants to be liable under § 2722(a), plaintiff must
plausibly allege that plaintiff’s DLN was obtained “from a motor vehicle record.” In his
amended complaint, plaintiff alleges that he was required to provide his driver’s license to
law enforcement at the scene of the accident, and the police officer listed Kresal’s DLN on
the accident report, which defendants then obtained from that report. (Am. Compl. (dkt.
#24) ¶¶ 66-76.)
Defendants contend that since plaintiff expressly alleges that the
information came from the accident report, not from a motor vehicle record or at least not
directly from it, the requirement of § 2722(a) has not been met, and plaintiff has pleaded
himself out of court. 3 Accordingly, the parties dispute centers on whether the personal
Consistent with this court’s decision in Eggen v. WESTconsin Credit Union, No. 14-CV-873-BBC,
2016 WL 4382773 (W.D. Wis. Aug. 16, 2016), defendants do not argue that a driver’s license is
not a motor vehicle record. Id. at *3 (“[D]efendant's argument that a driver's license is not a “motor
vehicle record” is difficult to take seriously. After all, a driver's license is created by the Department
3
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information must be obtained directly from a motor vehicle record, or whether a “onceremoved” process as alleged by plaintiff is sufficient.
The Seventh Circuit appears to have answered this question in Dahlstrom v. SunTimes Media, LLC, 777 F.3d 937 (7th Cir. 2015), holding that: “[t]he DPPA proscribes
only the publication of personal information that has been obtained from motor vehicle
records. The origin of the information is thus crucial to the illegality of its publication—
the statute is agnostic to the dissemination of the very same information acquired from a
lawful source.” Id. at 949. In opposition to defendants’ motion, plaintiff relies on a
Northern District of Illinois opinion decided some six months after Dahlstrom. In Pavone
v. Law Offices of Anthony Mancini, Ltd., 118 F. Supp. 3d 1004 (N.D. Ill. 2015) (“Mancini”),
the plaintiffs alleged that a defendant law firm “obtained Illinois traffic reports and used
the information in those reports to send targeted solicitations to persons involved in car
accidents.” Id. at 1005. In determining whether the information was obtained “from a
motor vehicle record,” the court identified the “key question” as whether the “Illinois
Secretary of State was the original source of the information,” and because it was plausible
that the “information listed on the crash reports came from motor vehicle records published
by the Secretary of State,” the court denied the motion to dismiss. Id. at 1007. Indeed,
the plaintiffs in Mancini affirmatively alleged, in part, that the accident reports were
obtained from the Illinois Secretary of State. Id. (citing Am. Compl. ¶ 13).
The Mancini court then went on to state in dicta, that “even if that information is
of Motor Vehicles and it is a record of the information on the license.”).
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not directly supplied by the Secretary of State, it is plausible that the officers who write
the crash reports copy the name, license number, and address from the driver’s license,
which is a motor vehicle record.” Id. Plaintiff’s reliance on this dicta is flawed. As an initial
matter, district courts actually required to decide this question have held otherwise, holding
that personal information obtained from an individual who provided his or her driver’s
license for inspection is not a motor vehicle record subject to the DPPA’s protection. In
Whitaker v. Appriss, Inc., 266 F. Supp. 3d 1103 (N.D. Ind. 2017), the court explained that
the “decisive factor” in determining this issue is “how the police officer who created the
accident report obtained the driver’s license and vehicle title information—from the
plaintiffs’ themselves or from the state department of motor vehicles.”
Id. at 1109
(quotation marks and internal citation omitted). At summary judgment in Whitaker, the
facts established -- as plaintiff affirmatively alleges here -- that the plaintiff handed over
her driver’s license and registration to a police officer. Id. at 1105. The Whitaker court
held that “[w]hen the holder of a driver’s license hands over her personal information to
an entity other than a DMV, even when that information is printed onto a driver’s license,
the DPPA doesn’t protect it.” Id. at 1110.
In so holding, the Whitaker court relied in part on another Northern District court
decision issued just a month after Mancini. In Pavone v. Meyerkord & Meyerkord, LLC, 118
F. Supp. 3d 1046 (N.D. Ill. 2015) (“Meyerkord”), the court similarly rejected a DPPA claim
based on an allegation that plaintiffs provided the personal information to the police at the
scene of the accident, explaining that plaintiffs “fail[] to allege facts connecting the
personal information in the [Traffic] Report to the DMV to demonstrate that it was
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originally derived from a motor vehicle record.” Id. at 1055. In Whitaker, the court also
followed the reasoning of the Second and Eleventh Circuits’ holdings that a plaintiff may
not claim the protection of the DPPA for use of information taken from a driver’s license
provided by the plaintiff, rather than obtained from the state motor vehicle department.
See Fontanex v. Skepple, 563 F. App’x 847, 848 (2nd Cir. 2014) (“DPPA does not protect
against use of personal information obtained from a driver’s license provided by the holder
as proof of identity to gain access to a facility.”); Siegler v. Best Buy Co. of Minn., 519 F.
App’x 604, 605 (11th Cir. 2013) (customer allowing cashier access to scan driver’s license
removed the information obtained from the DPPA’s protections). While the Whitaker
court acknowledged that both of these decisions could be distinguished by arguing that the
plaintiffs both volunteered the driver’s licenses, while a plaintiff providing a license to police
at the scene of a car accident arguably has no choice but to do so, the court agrees that
distinguishing based on “voluntariness” would make the DPPA’s application problematic,
particularly for third-party users like the defendants here.
Regardless, the Seventh Circuit held in Dahlstrom that the origin of the personal
information is “crucial.” Dahlstrom, 777 F.3d at 949. Accordingly, the court finds the
reasoning of the Second and Eleventh Circuits, as well as those of the U.S. District Court
for the Northern District of Illinois in Whitaker and Meyerkord persuasive. Therefore,
plaintiff Kresal’s affirmative allegation that the personal information contained in the
accident report was obtained from plaintiff at the scene of the accident, even if from his
driver’s license as opposed to orally, rather than from a motor vehicle record directly,
forecloses a finding that the disclosed information was obtained from a motor vehicle
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record as a matter of law. 4 Accordingly, the court will grant defendants’ motion to dismiss. 5
ORDER
IT IS ORDERED that:
1) Defendants’ motion to dismiss (dkt. #30) is GRANTED. Plaintiff’s complaint
is DISMISSED WITH PREJUDICE.
2) The clerk of court is directed to enter judgment in defendants’ favor and close
this case.
Entered this 11th of June, 2018.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
Even if the unfettered use of this information might be precluded by the police, who obtained the
information from the driver’s license under arguably coerced circumstances, an issue would remain
whether a third-party would be precluded from doing so once subsequently published and made
available by the police in an accident report. All of the decisions this court relied upon did not
need to reach this issue, having found the information unprotected, although Whitaker answered
that question “yes.” This court similarly does not attempt an answer on this record.
4
Of course, this opinion takes no position as to whether defendants’ conduct runs afoul of Wis.
Stat. § 801.19, which is not a claim pressed by plaintiff here, except as proof of improper use by
defendants for purposes of determining the applicability of DPPA exceptions quoted above in
§ 2721(b)(1) & (2), an issue this court did not need to decide.
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