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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v. McCuskey, 96 Nev. 706, 709, 615 P.2d 957 (1980)
         (filing lawsuit to coerce nuisance settlement constitutes
         abuse of process); cf. McGann v. Allen, 105 Conn. 177,
         186–87, 134 A. 810 (1926) (filing criminal complaint for
         purpose of compelling plaintiff to settle claim for alleg-
         edly stolen goods tends to show malice for purpose of
         malicious prosecution claim).12
           The foregoing review demonstrates, at the very least,
         that the present case involves complexities and nuances
             12
                But see Bird v. Rothman, 128 Ariz. 599, 602, 627 P.2d 1097 (App. 1981)
         (‘‘[t]here was no proof of an improper use of judicial process . . . as the
         purpose of settlement is includable in the goals of proper process’’), review
         denied, Arizona Supreme Court (May 5, 1981), cert. denied, 454 U.S. 865,
         102 S. Ct. 327, 70 L. Ed. 2d 166 (1981); Azer v. Myers, 8 Haw. App. 86, 129–30
         and n.38, 793 P.2d 1189 (trial court properly instructed jury that ‘‘[t]he
         commencement of a lawsuit for the purpose of obtaining a settlement (which
         may include the payment of money or insurance proceeds) is included in
         the goals of proper process and, therefore, does not by itself give rise to
         liability for abuse of process’’), rev’d in part on other grounds, 71 Haw. 506,
         795 P.2d 853 (1990); Myers v. Cohen, 5 Haw. App. 232, 244, 687 P.2d 6
         (‘‘[e]ven if frivolous, the counterclaim had the purpose of settlement which
         is includable in the goals of proper process’’ (internal quotation marks
         omitted)), rev’d on other grounds, 67 Haw. 389, 688 P.2d 1145 (1984); 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 fraudulent.’’); W. Barker et al., ‘‘Litigating
         About Litigation: Can Insurers Be Liable for Too Vigorously Defending Their
         Insureds?,’’ 42 Tort Trial & Ins. Prac. L.J. 827, 854 (2007) (‘‘[t]he cases almost
         uniformly reject plaintiffs’ attempts to impose liability based on allegedly
         frivolous defenses, supposedly asserted only to delay an inevitable recov-
         ery’’). At least one such case arises in the first-party insurance context. See
         California Physicians’ Service v. Superior Court, 9 Cal. App. 4th 1321,
         1330, 12 Cal. Rptr. 2d 95 (1992) (Although an insurance company’s ‘‘ridicu-
         lously low’’ settlement offer could be introduced as evidence of bad faith,
         ‘‘[d]efensive pleading, including the assertion of affirmative 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 ongo-
         ing bad faith. No complaint can be grounded [on] such pleading.’’)
Page 104                          CONNECTICUT LAW JOURNAL                                March 29, 2022
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