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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342 Conn. 582 MARCH, 2022 621
Dorfman v. Smith
1
ance Company for breach of the implied covenant of
good faith, negligent infliction of emotional distress,
and violations of the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42-110a et seq.,
and the Connecticut Unfair Insurance Practices Act
(CUIPA), General Statutes § 38a-815 et seq. My dis-
agreement stems from the unique features of the pres-
ent case that distinguish it—starkly, in my view—from
any other case yet decided by this court regarding the
privilege. The litigation privilege exists to create a pro-
tected space for parties to engage in the rough-and-
tumble of litigation, uninhibited by fears that their
adversary will later file a second generation lawsuit
claiming damages for harm caused by the adversary’s
(or his lawyer’s) alleged misconduct in the first case.2
Except for a narrow category of claims involving mis-
conduct comparable to vexatious litigation or abuse of
process, the litigation privilege prevents an aggrieved
party from bringing a damages lawsuit for harm caused
by litigation misconduct and limits the party’s recourse
to whatever relief may be obtained from the judge pre-
siding over the litigation or the administrative authority
with jurisdiction over the party or lawyer responsible
for the misconduct. This judge made policy makes good
sense in the ordinary case.
The present lawsuit is nothing like the ordinary case,
however, because it arises in a unique context implicat-
ing substantially different policy considerations than
those that shaped the litigation privilege. The defendant
sells automobile liability insurance. It consequently owes
its insureds a direct contractual and statutory duty to
1
I refer to Liberty Mutual Fire Insurance Company as the defendant. See
footnote 1 of the majority opinion.
2
The privilege has its origins in the law of defamation and, as such, is
concerned with misconduct by spoken or written word. See, e.g., Simms
v. Seaman, 308 Conn. 523, 531–35, 69 A.3d 880 (2013). This qualification
does not much limit the scope of the privilege because almost all litigation
activity is verbal in nature.
Page 86 CONNECTICUT LAW JOURNAL March 29, 2022

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