Bourne v. Mapother & Mapother, P.S.C.
2014 U.S. Dist. LEXIS 17759
| S.D.W. Va | 2014Background
- Plaintiff Richard Bourne alleges Mapother & Mapother, P.S.C. (and attorney Steven Mulrooney) placed repeated automated calls to his home number between Jan–Aug 2012 after Bourne had notified Mapother in Oct 2011 that he was represented by counsel for unrelated debts.
- Defendants admit 27 autodialed calls were made to 304-589-6655 but present unrefuted evidence they were trying to reach Maxine Bourne (plaintiff’s aunt) about her separate delinquent credit-card judgment; TRAK America provided that number as Maxine’s primary contact.
- Plaintiff answered one call (recognized the firm’s number) but never spoke to an agent; no messages were left.
- Plaintiff sued in West Virginia state court asserting WVCCPA violations (§§46A-2-125, 46A-2-128), negligent supervision, intentional infliction of emotional distress (IIED), and invasion of privacy; defendants removed and moved for summary judgment.
- The court found no genuine dispute of material fact and granted summary judgment for defendants on all counts.
Issues
| Issue | Bourne’s Argument | Mapother’s Argument | Held |
|---|---|---|---|
| WVCCPA §46A-2-125 / §46A-2-125(d) (harassing/abusive calls) | Calls were repeated and intended to annoy/harass; transferred intent from calls aimed at aunt applies to Bourne | Calls were intended for Maxine Bourne, not Richard; 27 calls over 8 months at normal hours do not show intent to annoy/abuse | Summary judgment for defendants: no evidence of requisite intent or abusive pattern to violate §125 or §125(d) |
| WVCCPA §46A-2-128(e) (contacting consumer represented by counsel) | Bourne’s counsel gave notice of representation; contacting Bourne post-notice violated §128(e) | Calls concerned a different consumer (Maxine) and a different debt; defendants lacked (minimal) knowledge that the called consumer was represented regarding that debt | Summary judgment for defendants: statute requires appearance of representation "with respect to" the debt called about; no such knowledge here |
| Negligent supervision (failure to verify correct debtor/number) | Mapother failed to verify numbers and supervise agents, causing harm | No WVCCPA violation occurred; absent an underlying actionable employee negligence causing injury, negligent-supervision claim fails | Summary judgment for defendants: no underlying tort/damages proven; plaintiff’s harms are only emotional and unsupported |
| Intentional infliction of emotional distress (IIED) | Repeated calls caused severe emotional distress | Calls were not extreme/outrageous and were aimed at someone else; no factual support for IIED elements | Summary judgment for defendants: conduct not "atrocious" or extreme; transferred intent not applicable; IIED fails |
| Invasion of privacy — intrusion upon seclusion | Repeated autodialed calls intruded on Bourne’s seclusion | Calls were not intentional intrusion on Bourne and were not highly offensive; aimed at aunt | Summary judgment for defendants: no intentional, highly offensive intrusion shown |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard) (explains genuine dispute/material fact analysis)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard) (burden-shifting on summary judgment)
- State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770 (W. Va. 1995) (WVCCPA construed broadly/remedially)
- Travis v. Alcon Laboratories, Inc., 202 W. Va. 369 (W. Va. 1998) (elements for IIED and high bar for outrageous conduct)
- Taylor v. Cabell Huntington Hosp., Inc., 208 W. Va. 128 (W. Va. 2000) (negligent supervision requires underlying negligent act by employee)
- Sturm v. Providian Nat’l Bank, 242 B.R. 599 (S.D.W. Va.) (multiple penalties may be imposed under WVCCPA)