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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ted in this case to amend that pleading numerous times
         before its sufficiency was tested by motion. If the plain-
         tiff wanted to allege that the defendant frequently
         engages in the same misconduct with other insureds,
         it is not too much to require an explicit allegation to
         that effect.
            Normally, it would not be a cause for concern that
         we proceed to take up a merits issue by assuming that
         the plaintiff’s complaint states an otherwise cognizable
         claim. But the situation is different here for three related
         reasons. First, the merits issue, even in its most basic
         formulation—namely, the applicability of the litigation
         privilege to CUTPA claims—presents an important issue
         of first impression in this court. Second, while that issue
         of first impression is difficult enough in its simplest
         form, it becomes far more complicated in the context
         of a case like this one, which involves a first-party CUIPA/
         CUTPA claim against an insurance company. The diffi-
         culty arises because the defendants in these cases are
         engaged in the business of litigation and are therefore
         able, if they choose, to misuse litigation systemically
         in a way that distinguishes CUIPA/CUTPA claims from
         the type of garden-variety tort claims in which the litiga-
         tion privilege traditionally applies, and that distin-
         guishes insurance company defendants from the class
         of litigants traditionally subject to the privilege. Third,
         this particular case is very poorly suited as a means to
         properly address the important and difficult merits
         issues, not only because the factual allegations are so
         thin and weak, but also because neither party has pro-
         vided us with adequate briefing on the CUIPA/CUTPA
         issue.
            These three reasons help explain why I would have
         avoided the merits altogether with respect to the plain-
         tiff’s CUIPA/CUTPA claim. Although the majority opin-
         ion is intended to apply only to the facts as alleged, in my
         view, it would be better to say nothing at all, because,
Page 112                        CONNECTICUT LAW JOURNAL                            March 29, 2022

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