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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A business practice of responding falsely to discovery
         requests, to the extent it involves ‘‘[m]isrepresenting
         pertinent facts or insurance policy provisions relating to
         coverages at issue,’’ is prohibited under CUIPA. General
         Statutes § 38a-816 (6) (A). The parties have not cited
         any case law—from this court, the federal courts, or
         sister state courts—that has addressed whether the liti-
         gation privilege applies to claims for violating statutes
         prohibiting unfair insurance practices. In our own
         research, we have found only one case addressing this
         issue. The United States District Court for the Eastern
         District of Pennsylvania, in Harrison v. Nationwide
         Mutual Fire Ins. Co., 580 F. Supp. 133, 136 (E.D. Pa.
         1983), and its progeny, held that, when an unfair insur-
         ance practices claim is premised on pleadings or docu-
         ments filed in and relevant to an underlying judicial
         proceeding, the conduct is absolutely privileged, even
         if the statements were made falsely or maliciously.
            The plaintiff argues, however, that absolute immunity
         would undermine the legislative intent of CUIPA, which
         is to hold insurers accountable for misrepresenting
         facts relating to coverage issues. In essence, the plaintiff
         argues that CUIPA abrogates absolute immunity as to
         the conduct alleged under § 38a-816 (6). Contrary to the
         plaintiff’s argument, CUIPA does not explicitly abrogate
         absolute immunity. Although § 38a-816 (6) in fact pro-
         hibits the business practice of misrepresenting facts
         relating to coverage issues, CUIPA does not impose
         liability for this conduct by authorizing a private right
         of action but, instead, limits the remedy under that
         act to administrative action by the Commissioner of
         Insurance. Rather than establishing that immunity
         should be abrogated, § 38a-816 shows that the legisla-
         ture prescribed remedies other than civil liability for
         deterring and curing the alleged conduct, and such rem-
         edies are available to the plaintiff in the present case.
         Additionally, the legislature is aware of both this court’s
Page 82                   CONNECTICUT LAW JOURNAL               March 29, 2022

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