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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that the majority does not fully examine.13 There is
ample support for the proposition that, when specific
procedures—including ‘‘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 contin-
uances’’—are undertaken for an improper ulterior pur-
pose, they are not subject to the litigation privilege,
regardless of whether the underlying litigation was
proper. Nienstedt v. Wetzel, 133 Ariz. 348, 352–53, 651
P.2d 876 (1982); see Hough v. Stockbridge, 152 Wn. App.
328, 346, 216 P.3d 1077 (2009) (‘‘Depositions, motions,
interrogatories, 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). There also is ample support
for the proposition that, for purposes of the tort of
abuse of process, an improper ulterior purpose may
include an intent by an insurance company to harass,
to drain resources, to delay payment, to coerce the
opposing party into abandoning the litigation or settling.
See General Refractories Co. v. Fireman’s Fund Ins.
Co., supra, 337 F.3d 308; Crackel v. Allstate Ins. Co.,
supra, 208 Ariz. 258–59; Givens v. Mullikin ex rel. Estate
of McElwaney, supra, 75 S.W.3d 401–402.
Similarly, if an insurance company misuses a litiga-
tion procedure with the intent of avoiding or delaying
the performance of its contractual obligations to an
insured, I see no reason why the litigation privilege
should bar a bad faith claim based on that conduct.
Such a claim is far more akin to an abuse of process
claim than to a defamation claim, and multiple courts
13
I do not fault the majority in this regard. As I have indicated, the plaintiff’s
allegations of bad faith are relatively weak, and neither party has adequately
briefed the underlying legal complexities involved. To modify the adage,
bad facts and inadequate briefing make bad law.
March 29, 2022 CONNECTICUT LAW JOURNAL Page 105

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