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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under its insurance policy. See part II A of this opinion
(discussing common law); cf. General Statutes § 38a-
816 (6) (G). The litigation privilege does not bar such
a claim.
C
To the extent that the plaintiff’s bad faith claim is
based in part on her allegations of litigation misconduct,
it is far from clear to me that it is barred by the litigation
privilege, and I am unpersuaded by the majority’s appli-
cation of the privilege under these circumstances. There
is good reason to develop a more nuanced doctrine adapted
to cases involving parties whose commercial activities
involve frequent use of the courts as an intrinsic compo-
nent of their business activities, and who are alleged
to have breached a duty owed to the plaintiff in part by
engaging in litigation misconduct. Our existing litigation
privilege doctrine, properly applied to the present cir-
cumstances, readily accommodates this approach.
As the majority recognizes, when confronted with
the question of whether the litigation privilege bars a
claim, the inquiry is whether, viewed in its factual con-
text, the plaintiff’s claim—be it for fraud, tortious inter-
ference, or a statutory violation—is more like a claim
for defamation or fraud, on the one hand, or a claim
for vexatious litigation or abuse of process, on the other.
See MacDermid, Inc. v. Leonetti, 310 Conn. 616, 631,
79 A.3d 60 (2013) (considering whether ‘‘the allegations
in the counterclaim [for retaliation] are more akin to an
abuse of process claim [than] a defamation or tortious
interference claim’’ (internal quotation marks omitted));
Simms v. Seaman, 308 Conn. 523, 547–51, 69 A.3d 880
(2013) (analyzing whether fraud is similar to defamation
for purposes of litigation privilege). Applying this analy-
sis to the plaintiff’s claims of bad faith, and even assum-
ing that the claim relies necessarily on allegations of
March 29, 2022 CONNECTICUT LAW JOURNAL Page 97

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