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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an insurance company occasionally loses money in a
           particular case, the system ensures that insurance com-
           panies will profit from a general practice of using litiga-
           tion to coerce lowball settlements and, if that is not
           possible, to delay payment as long as possible.
               In light of the foregoing, members of this court—
           properly briefed by the parties in a case raising the
           issues squarely, as the present case does not—may well
           conclude that public policy weighs in favor of the con-
           clusion that the litigation privilege does not bar CUIPA/
           CUTPA claims based on systematic litigation conduct
           by an insurance company in furtherance of an unfair
           claim settlement practice. If the litigation privilege does
           not bar abuse of process claims or bad faith claims
           based on litigation conduct in an individual case, there
           is indeed a very strong argument that the systematic
           abuse of litigation procedures as a general business
           practice in violation of CUTPA should not be subject
           to the privilege. Perhaps it would make far better sense
           to hold that the privilege should be limited to its historic
           application to defamation claims and causes of action
           that are similar to that tort, i.e., those based on false
           statements made during the litigation that are not part of
           a systemic business practice prohibited by law. Public
           policy surely does not weigh in favor of extending the
           privilege to systematic litigation conduct in clear viola-
           tion of the law; cf. Olson v. Accessory Controls & Equip-
           ment Corp., 254 Conn. 145, 170, 757 A.2d 14 (2000)
           (‘‘ ‘we exclude from the [attorney-client] privilege com-
           munications made in furtherance of crime or fraud
           because the costs to truth-seeking outweigh the justice-
           enhancing effects of complete and candid attorney-cli-
           ent conversations’ ’’), quoting In re Grand Jury Pro-
           ceedings, 183 F.3d 71, 76–77 (1st Cir. 1999); and it is
           [lowball] offer, does not automatically preclude the plaintiff from later bring-
           ing a bad faith action that includes a request for punitive damages.’’ (Internal
           quotation marks omitted.) Id., 48.
unreasonable to assume that the legislature intended
otherwise merely because it failed to expressly exempt
CUTPA claims from the privilege. I therefore disagree
with the majority’s dictum to the extent that it suggests
that the litigation privilege would bar all CUTPA claims
based on conduct during litigation.
   I agree, however, that the plaintiff in the present case
did not adequately allege a CUTPA claim. Accordingly,
I concur in part IV of the majority opinion, in which
the majority concludes that the trial court properly dis-
missed that claim. --- 035concurrenceinpart ---

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