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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especially in the absence of adequate briefing, the court
cannot be expected to grapple with, much less resolve,
the far more complex and nuanced issues that would be
implicated in CUIPA/CUTPA cases involving genuinely
serious claims of unfair claim settlement practices
effectuated, in whole or part, through a business prac-
tice involving litigation misconduct.
B
The majority states that ‘‘the litigation privilege bars
CUTPA claims, like the claim at issue, premised solely
on general allegations of intentionally false discovery
responses . . . .’’ Part IV of the majority opinion. In
addition, the majority concludes that the claim is barred
because other remedies are available. Id. This narrow
holding appears to leave open the possibility that a
CUIPA/CUTPA claim that is not based solely on the
falsity of communications made during the course of
litigation would not be barred.18 I take this as positive
18
All of the cases cited by the majority in support of its conclusion that
the litigation privilege bars CUTPA claims involved claims by the plaintiff
that the defendant had provided false information during a judicial proceed-
ing. See Graham v. U.S. Bank, National Assn., Docket No. 3:15-cv-0990-
AC, 2015 WL 10322087, *15 (D. Or. December 2, 2015) (privilege protects
communications made during judicial proceeding), report and recommenda-
tion adopted, 2016 WL 393336 (D. Or. February 1, 2016); Trent v. Mortgage
Electronic Registration Systems, Inc., 618 F. Supp. 2d 1356, 1360 (M.D. Fla.
2007) (privilege applies to communications in judicial proceedings), aff’d,
288 Fed. Appx. 571 (11th Cir. 2008); PSN Illinois, Inc. v. Ivoclar Vivadent,
Inc., Docket No. 04 C 7232, 2005 WL 2347209, *6 (N.D. Ill. September 21,
2005) (litigation privilege precludes deceptive trade practices claim based
on statements made in course of litigation); Bruno v. Travelers Cos., 172
Conn. App. 717, 725, 161 A.3d 630 (2017) (privilege confers immunity on
‘‘those who provide information in connection with judicial and quasi-judicial
proceedings’’ (internal quotation marks omitted)); Tyler v. Tatoian, 164
Conn. App. 82, 94, 137 A.3d 801 (statements made in course of judicial
proceedings are privileged), cert. denied, 321 Conn. 908, 135 A.3d 710 (2016).
For the reasons stated in the body of this opinion, I believe that a strong
argument can be made that the policy considerations underlying this rule
carry much less weight when the defendant has made it a business practice
to provide false information in judicial proceedings. Even if the majority is
correct, however, that false statements in the course of litigation are always
subject to the privilege, that would not mean that CUIPA/CUTPA claims
March 29, 2022 CONNECTICUT LAW JOURNAL Page 113

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