Winninger v. Kirchner

488 P.3d 1091

In Re Lindsay WINNINGER, an individual; and Sports Rehab Consulting LLC, a Colorado limited liability company, Plaintiffs,

v.Doris KIRCHNER, an individual; and Vail Clinic, Inc. d/b/a Vail Valley Medical Center, a Colorado nonprofit corporation, Defendants,andVail Clinic, Inc. d/b/a Vail Valley Medical Center, a Colorado nonprofit corporation, Third-Party Plaintiff,

v.David J. Cimino, an individual, Third-Party Defendant.

Supreme Court Case No. 21SA87

Supreme Court of Colorado.

June 14, 2021

Attorneys for Plaintiffs: Fahrenholtz & Wiens LLC, Jesse Wiens, Avon, Colorado, Sonya R. Braunschweig, Minneapolis, Minnesota, Alan L. Kildow, Burnsville, Minnesota

Attorneys for Defendant Doris Kirchner and Defendant/Third-Party Plaintiff Vail Clinic, Inc.: Davis Graham & Stubbs LLP, Janet Savage, Jacqueline V. Roeder, Daniel Richards, Denver, Colorado

Attorneys for Defendant Doris Kirchner: Reilly LLP, John M. McHugh, Denver, Colorado

Attorneys for Third-Party Defendant David Cimino: The Madden Law Firm, John W. Madden, III, Denver, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 Upon consideration of a C.A.R. 21 petition filed by plaintiffs, Lindsay Winninger and Sports Rehab Consulting LLC (collectively, "Winninger"), and joined by third-party defendant, David Cimino, we issued a rule to show cause directing defendants, Doris Kirchner and Vail Clinic, Inc. (collectively, "Vail Clinic"), to explain why:

(1) the term "theft," as that term is used in section 18-4-405, C.R.S. (2020), encompasses the theft of medical records or medical information under section 18-4-412(1), C.R.S. (2020), such that Respondents have standing to pursue their civil theft counterclaim in this case and (2) Respondents' civil theft counterclaim is not barred by section 18-4-412(5).

¶2 We now conclude that the term "theft," as that term is used in section 18-4-405, refers to "theft" within the meaning of section 18-4-401, C.R.S. (2020), and therefore does not encompass the theft of medical records or medical information under section 18-4-412(1).

¶3 In light of this determination, we make the rule to show cause absolute, and we need not address whether Vail Clinic's civil theft claim is also barred under section 18-4-412(5).

I. Facts and Procedural History

¶4 For reasons that are not abundantly clear from the record before us, the dispute below, which began as a seemingly straightforward claim for defamation and tortious interference with contract, has ballooned into a massive litigation, comprising twenty-seven claims, five counterclaims, six third-party claims, and over 1,100 filings in the district court. The issue now before us involves just one of Vail Clinic's counter- and third-party claims, and we thus limit our recitation of the facts to those necessary to understand the narrow legal question presented.

¶5 In 2004, Rehabilitation & Performance Center at Vail, LLC ("RPC-Vail") and Vail Clinic entered into a services agreement that required RPC-Vail to operate a physical therapy clinic that did business under the trade name Howard Head Sports Medicine ("Howard Head"). Under the services agreement, Vail Clinic acted as the billing and collection entity for Howard Head's services. This arrangement lasted until November 1, 2012, when Vail Clinic terminated the services agreement and took over operation of the Howard Head clinic.

¶6 Winninger and Cimino are physical therapists who, in the years implicated by these proceedings, were based primarily in Vail, Colorado. From 2008 or 2009 until 2012, Winninger worked for RPC-Vail at Howard Head, and from 2012 until 2015, Cimino did as well.

¶7 In May 2012, Winninger left Howard Head and joined the U.S. Women's Alpine Ski Team as its head physical therapist. Then, two years later, she founded Sports Rehab Consulting ("Sports Rehab"), and in 2015, she opened physical therapy clinics in both Denver and Vail. Sports Rehab hired Cimino as its first employee at the Vail location, and The Steadman Clinic, a well-known Vail orthopedic clinic that is not a party to this dispute, initially served as a significant source of referrals for Sports Rehab. Winninger anticipated that such referrals would increase, given that she had a pre-existing relationship with The Steadman Clinic and that she and her staff had expanded the breadth of services that they could offer.

¶8 As pertinent here, when both Winninger and Cimino left Howard Head, they each copied and took with them certain electronic educational, training, protocol, licensing, and personal files that were located either on their computer desktops or on RPC-Vail's shared drive. (The confidential and proprietary nature of these files has been hotly contested by the parties; nothing in this opinion should be read to express any view on that dispute.) In copying these files to portable USB drives, Winninger and Cimino also downloaded certain statutorily protected health information stored on RPC-Vail's servers, although both contend that they did so inadvertently and unknowingly and never used that information.

¶9 According to Winninger, Vail Clinic subsequently began making defamatory statements about her and Sports Rehab to people at The Steadman Clinic and elsewhere. Specifically, Winninger alleged that Vail Clinic informed Steadman physicians and executives that Winninger had stolen thousands of medical files from Vail Clinic and purportedly showed a draft complaint —which was never filed — to Steadman executives, in which Vail Clinic accused Winninger of such thefts. Winninger contends that these statements were false and were made with the intent to destroy her personal and professional reputation and to force her out of business. Allegedly as a result of Vail Clinic's claimed actions, the referrals from The Steadman Clinic came to an abrupt halt, and Sports Rehab shuttered its Vail clinic in September 2018.

¶10 Winninger then brought this lawsuit, alleging numerous separate claims of defamation, as well as claims for tortious interference with contract and with current and prospective business relationships. Vail Clinic responded by filing counterclaims against Winninger and a third-party complaint against Cimino. As pertinent here, Vail Clinic's fourth claim for relief asserts a counterclaim against Winninger and a third-party claim against Cimino for civil theft, pursuant to section 18-4-405.

¶11 In its civil theft claim, Vail Clinic alleges that Winninger and Cimino "knowingly obtained or exercised control over [Vail Clinic's] property, including [Vail Clinic] files containing protected health information (‘PHI’) and confidential and proprietary trade-secret information, without authorization." Although the claim does not mention section 18-4-412, which specifically concerns the theft of medical records or medical information, following discovery, Vail Clinic filed a motion for summary judgment in which it asserted that, to the extent its civil theft claim concerned allegedly stolen medical records or medical information, that claim was based on section 18-4-412.

¶12 Winninger then filed a motion to dismiss the civil theft claim under C.R.C.P. 12(b)(1) for lack of jurisdiction, arguing that Vail Clinic lacked standing to pursue that claim. In support of this motion, Winninger contended that the claim amounted to a civil theft claim for theft of medical records or medical information brought pursuant to a criminal statute, section 18-4-412, and that the legislature had not authorized a civil cause of action for a violation of that statute. Winninger further argued that the legislature intended for the elements of a civil theft claim brought pursuant to section 18-4-405 to be defined by the general criminal theft statute, section 18-4-401. Accordingly, in her view, proving the elements of section 18-4-412 would not provide a basis for a civil claim under section 18-4-405. (This distinction matters because Winninger asserts that to establish a civil theft claim, a claimant must show that the defendant knowingly obtained or exercised control over a thing of value of another with the intent to permanently deprive the victim of that thing of value. Vail Clinic, in contrast, contends that section 18-4-412 creates a strict liability offense and that a claimant need only show that the defendant voluntarily committed the alleged acts.)

¶13 Vail Clinic responded to Winninger's motion, contending that it had standing to pursue a civil theft claim because theft of medical records or medical information under section 18-4-412 is a predicate act for which Vail Clinic can maintain a private right of action under section 18-4-405. In so arguing, Vail Clinic contended that section 18-4-405, which allows an aggrieved owner to file a civil theft claim against the taker or possessor of "[a]ll property obtained by theft, robbery, or burglary," encompasses any of the statutory crimes of theft, including the theft of medical records or medical information.

¶14 The district court ultimately agreed with Vail Clinic and, in a written order, denied Winninger's motion to dismiss. In so ruling, the district court stated that section 18-4-405 indisputably "permits a private cause of action for theft" and it was "beyond any reasonable dispute that C.R.S. § 18-4-412 is a theft crime for medical records or medical information." In light of the foregoing, the court concluded that "if [Vail Clinic is] able to establish that [Winninger and Cimino] violated C.R.[S]. § 18-4-412 [it] may recover pursuant to C.R.S. § 18-4-405."

¶15 Winninger and Cimino then petitioned this court for relief under C.A.R. 21, and we issued a rule to show cause.

II. Analysis

¶16 We begin by addressing our jurisdiction in this case and the applicable standard of review and principles of statutory interpretation. We then construe section 18-4-405 to determine whether the term "theft" within the meaning of that statute encompasses the theft of medical records or medical information under section...