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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litigation misconduct, I would find that the complaint
is not barred by the privilege.
The majority acknowledges that the litigation privi-
lege does not bar abuse of process type claims but
concludes that the plaintiff’s bad faith claim is barred
because it more closely resembles the type of claims
to which the privilege applies, such as defamation and
fraud. Specifically, the majority concludes that the bad
faith claim is barred because, like defamation and fraud
claims, (1) the claim was based exclusively on false
statements made by the defendant in court filings; part
II B of the majority opinion; (2) the plaintiff does not
‘‘challenge the purpose of any underlying litigation’’;
part II A of the majority opinion; and (3) other remedies
exist for the complained of conduct. Part III C of the
majority opinion. I disagree and would conclude that
the bad faith claim fits comfortably within the frame-
work of an abuse of process claim because it adequately
alleges that the defendant acted with an improper pur-
pose within the meaning of the common-law abuse of
process doctrine.9
9
Regarding the majority’s conclusion that the plaintiff’s bad faith claim
is barred because it is based on false statements, I agree that the allegation
relating to the defendant’s filing of false discovery responses could be accu-
rately characterized as an allegation of making false statements but offer
two observations in response. First, as explained in part II B of this opinion,
the bad faith count is not based solely on improper conduct in the litigation
itself; it also expressly alleges a claim based on the defendant’s prelitigation
misconduct, namely, the conduct ‘‘compel[ing] [the plaintiff] to resort to
litigation to obtain what was due to her from [the defendant] under the
. . . insurance policy . . . .’’ The litigation misconduct is a continuation
of the prelitigation misconduct. Second, to the extent that the allegations
regarding false discovery responses are necessary to sustain the claim, that
fact itself does not trigger the privilege. False statements in litigation will
fall outside of the privilege if those statements are made in service of a
misuse of the litigation process itself. Indeed, verbal statements in litigation
are the means by which a party carries out the torts of vexatious litigation
and abuse of process. The statements at issue in the present case are
hardly gratuitous or peripheral in an underinsured motorist case; discovery
responses identifying witnesses are mandatory, they are signed under oath,
and they are meant to be relied on by the opposing party. See Practice Book
Page 98 CONNECTICUT LAW JOURNAL March 29, 2022

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