Dorfman v. Smith, 342 Conn. 582 (2022)

Citation: Dorfman v. Smith, 342 Conn. 582 (2022)
Parent Document: Dorfman v. Smith, 342 Conn. 582 (2022)
Jurisdiction: Connecticut (state)
Effective Date: 2022-03-29
Original Source: https://www.courtlistener.com/opinion/10278647/dorfman-v-smith/ ↗

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system, but, rather, the cause of action itself must chal-
         lenge the purpose of the underlying litigation or litiga-
         tion conduct. See Tyler v. Tatoian, supra, 164 Conn.
         App. 93. Additionally, even if the allegations in the com-
         plaint are sufficient to support a claim for vexatious
         litigation or abuse of process but such claims are not
         raised, these allegations do not remove immunity from
         a claim that falls within the scope of the litigation privi-
         lege. See Perugini v. Giuliano, 148 Conn. App. 861,
         873–74, 89 A.3d 358 (2014).
            Thus, in determining whether the plaintiff’s claim
         challenges the purpose of an underlying judicial pro-
         ceeding, we look at the elements of the claim itself.
         See Simms v. Seaman, supra, 308 Conn. 546; see also
         MacDermid, Inc. v. Leonetti, supra, 310 Conn. 629, 631.
         ‘‘To constitute a breach of [the implied covenant of good
         faith and fair dealing], the acts by which a defendant
         allegedly impedes the plaintiff’s right to receive benefits
         that he or she reasonably expected to receive under the
         contract must have been taken in bad faith.’’ (Internal
         quotation marks omitted.) Geysen v. Securitas Security
         Services USA, Inc., 322 Conn. 385, 399, 142 A.3d 227
         (2016).
           The plaintiff’s claim does not challenge the purpose
         of any underlying litigation. Rather, her claim chal-
         lenges the defendant’s conduct in defending against her
         underinsured motorist claim.6 A claim of breach of the
         covenant of good faith and fair dealing in general does
         not challenge the purpose of an underlying judicial pro-
           6
             The litigation privilege does not apply to conduct not made in the course
         of a judicial proceeding. See, e.g., Fiondella v. Meriden, 186 Conn. App.
         552, 563, 200 A.3d 196 (2018), cert. denied, 330 Conn. 961, 199 A.3d 20 (2019).
         As the master of her complaint, the plaintiff never argued to the trial court—
         and has not argued before this court—that she premised any of her claims
         on conduct that occurred outside the course of a judicial proceeding. Rather,
         she consistently has argued that, during the underlying litigation, the defen-
         dant made recovery as difficult as possible and improperly used the courts
         to avoid paying her the full amount of benefits owed.
Page 62                   CONNECTICUT LAW JOURNAL                March 29, 2022

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