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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The tort of abuse of process is not well defined.11 See
Italian Star Line, Inc. v. United States Shipping Board
494, and other leading authorities. We know that Simms could not have
intended such a result, moreover, because our case law, including Simms
itself, acknowledges that such claims are outside the privilege.
11
I note, for example, that there is little clarity regarding the scope and
meaning of the term ‘‘process.’’ This court has recognized that ‘‘most courts
that have considered the issue have construed the term process broadly.’’
Larobina v. McDonald, 274 Conn. 394, 406, 876 A.2d 522 (2005); see, e.g.,
Nienstedt v. Wetzel, 133 Ariz. 348, 352, 651 P.2d 876 (1982) (process ‘‘has
been interpreted broadly, and encompasses the entire range of procedures
incident to the litigation process’’); Nienstedt v. Wetzel, supra, 352–53 (‘‘we
. . . consider as ‘processes’ of the court for abuse of process purposes, the
noticing of depositions, the entry of defaults, and the utilization of various
motions such as motions to compel production, for protective orders, for
change of judge, for sanctions and for continuances’’); Barquis v. Merchants
Collection Assn. of Oakland, Inc., 7 Cal. 3d 94, 104 n.4, 496 P.2d 817, 101
Cal. Rptr. 745 (1972) (‘‘[p]rocess, as used in the tort of abuse of process,
has never been limited to the strict sense of the term, but instead has been
interpreted broadly to encompass the entire range of procedures incident
to litigation’’ (internal quotation marks omitted)); Hough v. Stockbridge, 152
Wn. App. 328, 346, 216 P.3d 1077 (2009) (‘‘Depositions, motions, interrogato-
ries, and other requests for discovery or legal maneuverings to compel or
prohibit action by an opponent all invoke the authority of the court. They
are, therefore, the type of process that will support an abuse of process
claim.’’), review denied, 168 Wn. 2d 1043, 234 P.3d 1173 (2010). As we stated
in Larobina, ‘‘[t]his broad reach of the abuse of process tort can be explained
historically, since the tort evolved as a [catchall] category to cover improper
uses of the judicial machinery that did not fit within the earlier established,
but narrowly circumscribed, action of malicious prosecution.’’ (Internal
quotation marks omitted.) Larobina v. McDonald, supra, 406. A number of
courts have held, however, that not all litigation procedures constitute
‘‘process.’’ See California Physicians’ Service v. Superior Court, 9 Cal.
App. 4th 1321, 1330, 12 Cal. Rptr. 2d 95 (1992) (Although an insurance
company’s ‘‘ridiculously low’’ settlement offer could be introduced as evi-
dence of bad faith, ‘‘[d]efensive pleading, including the assertion of affirma-
tive defenses, is communication protected by the absolute litigation
privilege. Such pleading, even though allegedly false, interposed in bad faith,
or even asserted for inappropriate purposes, cannot be used as the basis
for allegations of ongoing bad faith. No complaint can be grounded [on]
such pleading.’’); Ritter v. Ritter, 381 Ill. 549, 555, 46 N.E.2d 41 (1943)
(‘‘Under [Illinois] jurisprudence the defendant may present any defense to
such an action that he may have or that he may deem expedient, and in so
doing he will not be subjecting himself to a second suit by the plaintiff
based on the wrongful conduct of the defendant in causing the plaintiff to
sue him or in defending the action. The rule is the same even though
the wrongful conduct of the defendant is [wilful], intentional, malicious or
March 29, 2022 CONNECTICUT LAW JOURNAL Page 101

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