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 misconduct, in violation of its statutory and
          common-law duties. The pleadings do not allege merely
          that the defendant has violated the rules of fair litigation
          owed to one another by all parties to litigation. Rather,
          the pleadings allege that the defendant insurer has vio-
          lated a direct, independent contractual and statutory
          duty owed specifically to the plaintiff-insured. For rea-
          sons that I will elaborate on, such allegations, if suffi-
          ciently pleaded, should be deemed to fall outside of the
          litigation privilege under Connecticut law.
                                       I
             My concerns focus primarily on two counts of the
          plaintiff’s operative complaint. With respect to the claim
          for breach of the implied covenant of good faith and
          fair dealing, I would hold, contrary to the majority’s con-
          clusion, that the operative complaint sufficiently alleges
          conduct outside of litigation that would support a bad
          faith claim. Specifically, the operative complaint alleges
          that the defendant insurer was contractually obligated
          to pay the plaintiff sums that she was legally entitled
          to recover from the owner or operator of an uninsured
          or underinsured motor vehicle for damages resulting
          from bodily injury, that the defendant knew that it had
          no valid defense to her claim, and that the defendant
          nonetheless compelled its insured to resort to litigation
          and to endure litigation misconduct to obtain payment.
          To the extent that the plaintiff also alleges bad faith
          litigation conduct, I would conclude that the majority’s
          suggestion that the litigation privilege bars all such
          claims fails to adequately address the complexity of the
          law governing such claims, especially as the law applies
          to first-party claims by an insured against his or her
          insurer. Particularly in light of the special considera-
          tions that arise in the insurance context—most notably,
          the asymmetry between the insured and the insurer
          with respect to bargaining power and litigation experi-
          ence, and the special vulnerabilities of an insured who
          has suffered a covered loss—I would conclude that this
March 29, 2022                 CONNECTICUT LAW JOURNAL                                       Page 89

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