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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as improper, such as to stonewall an insured who is
         entitled to payment of a valid claim under the applicable
         policy without resorting to litigation, I see no reason
         why the litigation privilege should bar that claim at this
         preliminary stage of the proceedings. Of course, the
         plaintiff then bears the burden of proving these allega-
         tions at trial.
            I also disagree with majority’s suggestion that a prop-
         erly alleged bad faith claim based on an insurance com-
         pany’s litigation conduct would be subject to the
         litigation privilege because of the availability of alterna-
         tive remedies, including a claim pursuant to General
         Statutes §§ 52-9915 or General Statutes § 52-568.16 See
         part II C of the majority opinion. In my view, that consid-
         eration should carry little weight if public policy other-
         wise counsels in favor of recognizing such claims,
         particularly when, as here, the supposed ‘‘remedy’’ may
         provide no meaningful relief at all to the individual
         plaintiff. Unlike a lawsuit alleging bad faith, the alterna-
         tive remedies identified by the majority, such as court
         imposed sanctions, attorney grievance proceedings and
         contempt proceedings, are not intended to compensate
         the victims who actually have been injured by bad faith
         litigation conduct. Indeed, such alternative remedies
         are also available when a party has engaged in abuse
         of process, yet that tort is not subject to the privilege.
           15
              General Statutes § 52-99 provides: ‘‘Any allegation or denial made with-
         out reasonable cause and found untrue shall subject the party pleading the
         same to the payment of such reasonable expenses, to be taxed by the court,
         as may have been necessarily incurred by the other party by reason of
         such untrue pleading; provided no expenses for counsel fees shall be taxed
         exceeding ten dollars for any one offense.’’
           16
              General Statutes § 52-568 provides: ‘‘Any person who commences and
         prosecutes any civil action or complaint against another, in his own name
         or the name of others, or asserts a defense to any civil action or complaint
         commenced and prosecuted by another (1) without probable cause, shall
         pay such other person double damages, or (2) without probable cause, and
         with a malicious intent unjustly to vex and trouble such other person, shall
         pay him treble damages.’’
Page 108                   CONNECTICUT LAW JOURNAL               March 29, 2022

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