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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tion privilege. The lack of jurisdiction over the present
          claim did not prevent the parties from pursuing sanc-
          tions under § 52-99 or the court’s inherent authority.
             The plaintiff also fails to recognize that, unlike § 52-
          99, the purpose of the litigation privilege is not to pro-
          hibit dishonesty but to protect against retaliatory claims
          that are easily alleged but difficult to prove, like claims
          premised on dishonesty. See, e.g., Simms v. Seaman,
          supra, 308 Conn. 539–40, 549. Like a claim of fraud or
          defamation, which, likewise, involves dishonesty and
          false communications, it is easy to allege, but more
          difficult to prove, that a defendant intentionally made
          misrepresentations and advanced false allegations in
          pleadings. Although there is some evidence in the pres-
          ent case that the defendant had no basis to assert the
          special defense of contributory negligence, this kind of
          evidence—what a party knew and when—is difficult to
          prove. Withholding immunity as to the claim at issue
          has the potential to open the floodgates to retaliatory
          actions every time a plaintiff prevails in an underlying
          action in which the defendant raised an unsuccessful
          special defense or made an allegation in a pleading that
          was at odds with the verdict.
             This possibility of retaliatory litigation is made clear
          by the plaintiff’s own argument before the trial court.
          There, the plaintiff suggested that, in regard to such
          claims, a hearing is required to determine jurisdiction
          because these claims are actionable only if there was
          no basis in fact for the defendant’s special defense.
          Although no hearing was in fact held in the present
          case, and the plaintiff argues on appeal that the record
          is sufficient to establish that the defendant had no basis
          in fact for its special defense based on the deposition
          of its representative, the plaintiff’s argument shows the
          weakness of her position before this court. If a claim
          for breach of the implied covenant of good faith and
          fair dealing is exempt from immunity only if there was
March 29, 2022               CONNECTICUT LAW JOURNAL                                  Page 75

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