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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precedent regarding the applicability of the litigation
privilege to litigation conduct, as well as the various
other tools available to the court to regulate and police
litigation misconduct. See, e.g., Chadha v. Charlotte
Hungerford Hospital, supra, 272 Conn. 793 n.21 (‘‘the
legislature is presumed to be aware of prior judicial
decisions involving common-law rules’’). If the legisla-
ture thought that the particular litigation conduct at
issue—filing false discovery responses—had become
such a systemic problem that neither the judiciary nor
the Commissioner of Insurance has been able to police
it, the legislature would have been explicit in abrogating
the immunity afforded by the litigation privilege.
Nevertheless, our case law makes clear that an insurer
may be held liable under CUTPA for conduct proscribed
by § 38a-816 (6). See Mead v. Burns, 199 Conn. 651,
663, 509 A.2d 11 (1986) (‘‘it is possible to state a cause
of action under CUTPA for a violation of CUIPA’’). That
does not necessarily mean that the legislature intended
to abrogate a party’s absolute immunity from CUTPA
claims based on a business practice of filing false dis-
covery responses. Although there is minimal case law
regarding CUIPA and the litigation privilege, there is a
wealth of case law regarding CUTPA and the litigation
privilege. Courts consistently have applied the litigation
privilege to CUTPA claims premised on false communi-
cations made during and relevant to an underlying judi-
cial proceeding. See, e.g., Simms v. Seaman, supra, 308
Conn. 561–62 (discussing federal case law that consis-
tently has held that CUTPA claims premised on false
communications made during and relevant to underly-
ing judicial proceeding are barred by litigation privi-
lege); Bruno v. Travelers Cos., supra, 172 Conn. App.
722, 727–29 (CUTPA claim against insurance companies
was barred by litigation privilege); Tyler v. Tatoian,
supra, 164 Conn. App. 86–87, 93–94 (CUTPA claim against
attorney for communications made in course of prior
judicial proceeding was barred by litigation privilege).
March 29, 2022 CONNECTICUT LAW JOURNAL Page 83

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