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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mance first (by paying premiums) and then awaits the
counter-performance in the event of a claim. Insurance
is different, however, if the insurer breaches by refusing
to render the counter-performance. In a typical con-
tract, the [nonbreaching] party can replace the perfor-
mance of the breaching party by paying the [then
prevailing] market price for the counter-performance.
With insurance this is simply not possible. This feature
of insurance contracts distinguishes them from other
contracts and justifies the availability of punitive dam-
ages for breach in limited circumstances.’’ (Footnotes
omitted; internal quotation marks omitted.) E.I. DuPont
de Nemours & Co. v. Pressman, 679 A.2d 436, 447
(Del. 1996).
As I indicated, insurance is also different because
insurance companies are effectively in the business of
litigation.22 ‘‘[I]nsurance companies are bulk purchasers
22
The majority points out that ‘‘this court consistently has applied the
litigation privilege to attorneys, who, without a doubt, are in the business
of litigation.’’ Footnote 18 of the majority opinion. The comparison between
litigation attorneys and insurance companies is inapt. First, litigation attor-
neys, unlike liability insurance companies sued in first-party actions, do not
owe any duty of care (except as imposed by ethical rules) to the opposing
party, whereas liability insurance companies owe a heightened duty of care
to their insureds. Compare State v. Acordia, Inc., 310 Conn. 1, 37, 73 A.3d
711 (2013) (stating, albeit in dictum, that ‘‘an insurer generally has a fiduciary
relationship with its insured’’), with Mozzochi v. Beck, supra, 204 Conn. 497
(stating that liability rules must not ‘‘interfere with the attorney’s primary
duty of robust representation of the interests of his or her client’’). Second,
attorneys, unlike insurance companies, are categorically excluded from
CUTPA in connection with their litigation activities, privileged or not. See
Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997)
(CUTPA applies to attorneys only with respect to ‘‘the entrepreneurial or
commercial aspects of the profession’’). Third, the crux of the problem that
I address in this opinion is precisely that liability insurance companies, as
parties, are in the business of litigation in furtherance of their business
interests outside of litigation, i.e., as insurance companies. Their unusual
hybrid character enables them, if so inclined, to systematically misuse their
litigation activities for the purpose of furthering that nonlitigation business
activity. Litigation attorneys who engage in wrongful litigation conduct, by
contrast, have both feet firmly planted in the business of litigation; any
systemic abuse they may perpetrate occurs wholly within the judicial system
March 29, 2022 CONNECTICUT LAW JOURNAL Page 119

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