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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restrict the scope of the conduct that is proscribed . . .
to that which occurred prior to the filing of a lawsuit.’’
(Internal quotation marks omitted.)).21 This is especially
so because, as discussed, the legislature expressly included
litigation related misconduct as one means by which
an insurance company could engage in unfair claim
settlement practices. See General Statutes § 38a-816 (6)
(G). It would be incongruous for the legislature to have
declared such conduct unlawful if it believed that the
21
The court in Barefield also concluded that, although ‘‘the conduct of
an insurance company or other person in the business of insurance during
the pendency of a lawsuit may support a cause of action under the West
Virginia Unfair Trade Practices Act,’’ ‘‘an insurance company cannot be held
liable . . . for the actions of a defense attorney retained to defend an
insured, when the defense attorney’s strategy and tactics are a result of the
attorney’s independent, professional discretion with regard to the represen-
tation of the client-insured, and are not otherwise relied [on] or ratified by
the insurance company in a manner contrary to the [a]ct.’’ Barefield v. DPIC
Cos., supra, 215 W. Va. 559.
The majority cites to Harrison v. Nationwide Mutual Fire Ins. Co., 580
F. Supp. 133, 136 (E.D. Pa. 1983), for the proposition that ‘‘an unfair insurance
practices claim [that] is premised on pleadings or documents filed in and
relevant to an underlying judicial proceeding . . . is absolutely privileged,
even if the statements were made falsely or maliciously.’’ Part IV of the
majority opinion. The majority misreads Harrison. The claim in that case
was not that the defendant insurance company had violated Pennsylvania’s
Unfair Insurance Practices Act by systematically abusing the judicial process
for the purpose of coercing the abandonment of claims or favorable settle-
ments. Rather, the plaintiffs claimed that the insurance company had
defamed them by claiming that the house fire for which the plaintiffs sought
coverage was caused by arson and that they had misrepresented their dam-
ages. Id., 134. The court held that a defamatory statement contained in an
answer to a complaint is ‘‘absolutely privileged and . . . even if made
falsely or maliciously and without reasonable and probable cause, is an
absolute bar to an action of libel based on such averments.’’ (Emphasis in
original; internal quotation marks omitted.) Id., 136. This is hardly surprising,
as defamation is the paradigmatic tort to which the privilege applies.
Although the plaintiffs in Harrison did raise a claim under Pennsylvania’s
Unfair Insurance Practices Act; see id., 137; the basis for the claim was not
stated, and there is no indication that the insurance company raised a
litigation privilege defense to the claim. Rather, the court concluded that
the claim was barred because ‘‘[t]he relief sought by [the] plaintiffs [namely,
damages in excess of $20,000] is not what [the Unfair Insurance Practices]
Act provides as a penalty for its violation.’’ Id., citing Nazer v. Safeguard
Mutual Assurance Co., 293 Pa. Super. 385, 439 A.2d 165 (1981); see Nazer
v. Safeguard Mutual Assurance Co., supra, 387 (Pennsylvania act does not
create private cause of action).
March 29, 2022 CONNECTICUT LAW JOURNAL Page 117

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