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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taken as part of their day-to-day business practices.4
         It could be argued that such a broad immunity is wise
         policy in light of the competing considerations at play.
         But, in my view, that conclusion is hardly self-evident,
         and it certainly is not compelled or even suggested by
         either our existing precedent or the few statutory tea
         leaves currently available for guidance.
            There are alternatives. One is to defer to the legisla-
         ture regarding this complex issue of public policy; if a
         broad immunity is to be extended to insurance compa-
         nies in this context, it should be conferred by an affirma-
         tive act of the legislature upon consideration of all
         relevant policy implications, not by this court under the
         rubric of the common-law litigation privilege. Another
         option, developed at some length in this opinion, is
         to fashion a more nuanced privilege adapted to cases
         involving parties, like the defendant in the present case,
         whose commercial activities involve frequent use of the
         courts as an integral aspect of their business operations
         and who are alleged to have breached a contractual,
         common-law, or statutory duty owed to the plaintiff by
         engaging in, among other things, litigation misconduct.
         Indeed, our existing litigation privilege doctrine, prop-
         erly applied, is well suited to the task. See parts II C
         and III B of this opinion.
            To summarize, the present context is miles away
         from that in which the litigation privilege was originally
         formulated, and lies equally distant from the cases in
         which we have found the privilege applicable to date.
         The plaintiff is not simply the defendant’s adversary;
         she is its insured. Her lawsuit alleges that the defendant
         purposely engaged in bad faith insurance claim settle-
         ment practices involving both prelitigation and litiga-
           4
              I am not sure that this is the effect intended by the majority, which
         seems open to the idea that another case with different facts involving
         litigation misconduct by an insurance company may fall outside the scope
         of the privilege. See footnote 17 of this opinion and accompanying text.
Page 88                   CONNECTICUT LAW JOURNAL                March 29, 2022

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