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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A careful examination of the common-law tort of
abuse of process demonstrates why, contrary to the
majority’s conclusion, the plaintiff’s bad faith claim in
the present case—based not only on allegations that
the defendant improperly compelled the plaintiff to
resort to litigation to obtain payment, but that the defen-
dant then misused litigation procedures in an attempt
to avoid or delay the performance of its contractual
obligation to pay the plaintiff’s valid claim—is far more
similar to an abuse of process claim, to which the litiga-
tion privilege does not apply, than to a claim of defama-
tion or fraud, to which the privilege does apply.
This court previously has held that, ‘‘[b]ecause the
tort [of abuse of process] arises out of the accomplish-
ment of a result that could not be achieved by the
proper and successful use of process, [§ 682 of the
Restatement (Second) of Torts] emphasizes that the
gravamen of the action . . . is the use of a legal process
. . . against another primarily to accomplish a pur-
pose for which it is not designed . . . . Comment [b]
to § 682 explains that the addition of primarily is meant
to exclude liability when the process is used for the
purpose for which it is intended, but there is an inciden-
tal motive of spite or an ulterior purpose of benefit to the
defendant.’’ (Emphasis in original; internal quotation
marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494,
529 A.2d 171 (1987); see 3 Restatement (Second), Torts
§ 682, p. 474 (1977); 3 Restatement (Second), Torts,
Form 213 (plaintiff’s interrogatories for uninsured/underinsured motorists
cases). If the defendant’s pleadings and response to these interrogatories
were false, and if intended to weaken her resolve to pursue the litigation
and to compel her to abandon her claim or to accept substantially less than
the amount to which she is entitled, the false statements were part and
parcel of the defendant’s abuse of process. In other words, unlike a fraud
claim, in which the essence of the claim is that the falseness of a communica-
tion itself injured the opposing party, the claim here is that the false litigation
communications were a tactic intended to prolong the litigation and to wear
down the plaintiff, in violation of the common-law and statutory duties the
defendant owed to the plaintiff.
March 29, 2022 CONNECTICUT LAW JOURNAL Page 99

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