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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600 MARCH, 2022 342 Conn. 582
Dorfman v. Smith
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litigation. In doing so, we looked at whether the plain-
tiff’s fraud claim was premised on communication of
a false statement, like a defamation claim; see Simms
v. Seaman, supra, 308 Conn. 548; whether embedded
in a fraud claim is a balancing test with stringent safe-
guards that protect against inappropriate retaliatory liti-
gation while incentivizing the reporting of wrongdoing,
like a vexatious litigation claim; id., 549; whether, like
a defamation claim, the fraud claim in Simms was easy
to allege but difficult to prove; id.; and whether, like
defamation claims, not recognizing the litigation privi-
lege for such actions would open the floodgates to a
wave of litigation. Id., 568. In Simms, after considering
these arguments, we came down firmly on the side of
applying the litigation privilege to a fraud claim against
an attorney. See id., 568–69. We conclude similarly in
the present case that the plaintiff’s claim for breach of
the implied covenant of good faith and fair dealing has
more in common with a defamation claim than with
an abuse of process, vexatious litigation, or malicious
prosecution claim, therefore militating in favor of applying
the privilege.
The plaintiff’s claim for breach of the implied cove-
nant of good faith and fair dealing, like a defamation
claim, is premised on the communication of false state-
ments during litigation. See footnote 6 of this opinion.
Although the elements of the plaintiff’s claim do not
specifically mention communications; see part I A of
this opinion; we must consider not only the elements
of the cause of action but also whether the complaint
contains ‘‘allegations that a party suffered harm because
of a falsehood communicated by the opponent’s attor-
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‘‘Vexatious litigation requires a plaintiff to establish that: (1) the previous
lawsuit or action was initiated or procured by the defendant against the
plaintiff; (2) the defendant acted with malice, primarily for a purpose other
than that of bringing an offender to justice; (3) the defendant acted without
probable cause; and (4) the proceeding terminated in the plaintiff’s favor.’’
Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007).
March 29, 2022 CONNECTICUT LAW JOURNAL Page 65

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