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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privilege. The accuracy of a statement is irrelevant to
the application of the privilege, even if the defendant
knows the statement is false. See Simms v. Seaman,
supra, 308 Conn. 548 (‘‘ ‘because the privilege protects
the communication, the nature of the theory [on which
the challenge is based] is irrelevant’ ’’ (emphasis omit-
ted)); Hopkins v. O’Connor, supra, 282 Conn. 838 (if
‘‘the communications are uttered or published in the
course of judicial proceedings, even if they are pub-
lished falsely and maliciously, they nevertheless are
absolutely privileged provided they are pertinent to the
subject of the controversy’’). Thus, the plaintiff’s claim
is premised on false communications like a claim for
defamation or fraud.
Additionally, unlike the elements of a claim for vexa-
tious litigation,11 the elements of a claim for breach of
the implied covenant of good faith and fair dealing lack
any safeguards that balance the need to protect against
inappropriate retaliatory litigation while incentivizing
the reporting of wrongdoing. See footnote 9 of this
opinion. The elements of the good faith and fair dealing
claim at issue require the plaintiff to allege only that
the defendant impeded the plaintiff’s right to receive
benefits that she reasonably expected to receive under
the contract and did so in bad faith. See, e.g., Geysen
v. Securitas Security Services USA, Inc., supra, 322
Conn. 399.
11
We note that a lack of stringent policy balancing safeguards is not
detrimental to a plaintiff’s claim that the litigation privilege does not apply.
See footnote 5 of this opinion. For example, claims of employer retaliation
under § 31-290a and abuse of process do not have these safeguards, but
this court has barred the application of the litigation privilege to those
claims because of other policy considerations. See, e.g., MacDermid, Inc.
v. Leonetti, supra, 310 Conn. 633 (‘‘the elements of abuse of process, a tort
which also falls outside the scope of absolute immunity, are less stringent
than the elements of vexatious litigation’’). The plaintiff’s claim is distinguish-
able from claims of abuse of process and employer retaliation, however,
because the plaintiff has not suggested any policy considerations that weigh
in favor of barring the litigation privilege.
Page 70 CONNECTICUT LAW JOURNAL March 29, 2022

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