The plaintiff appealed from that part of the trial court’s judgment dismissing
her claims against the defendant insurance company for breach of the
implied covenant of good faith and fair dealing, negligent infliction
of emotional distress, and violation of the Connecticut Unfair Trade
Practices Act (CUTPA) (§ 42-110a et seq.) based on a violation of the
Connecticut Unfair Insurance Practices Act (CUIPA) (§ 38a-815 et seq.).
The plaintiff had been involved in a motor vehicle collision with J, one
of the defendant’s insureds. The plaintiff thereafter filed a claim with
the defendant under the underinsured motorist provision of her policy.
The defendant investigated the claim, concluded that J was 100 percent
at fault and made notations of its findings in the claim file. The defendant
then notified the plaintiff that her right to pursue her claim was condi-
tioned on her provision of an affidavit of no excess insurance. The
plaintiff subsequently brought the present action. The defendant hired
attorneys to represent it in connection with the plaintiff’s action but
deliberately withheld from them its file notes, which included the
recorded statement and identity of a witness to the collision, even though
the defendant knew that information was necessary for its attorneys to
prepare accurate responses to the plaintiff’s complaint and discovery
requests. The defendant pleaded in its answer to the plaintiff’s complaint
that it denied or did not have sufficient information to admit the plaintiff’s
allegations regarding the cause of the collision and her injuries, and
asserted a special defense of contributory negligence, even though it
knew that it was without a basis in fact. The defendant also provided
false responses to the plaintiff’s discovery requests, including that it did
not know of the existence of the witness to the collision or whether any
recorded statements of witnesses existed. In the plaintiff’s deposition
of the defendant, the defendant’s designee admitted that the defendant
had been aware of the witness to the collision and his recorded statement
but failed to disclose that information in its interrogatory responses.
The designee also indicated that the defendant did not single out the
plaintiff for special or unique treatment when it conditioned her receipt
of underinsured motorist benefits on the provision of an affidavit of no
excess insurance and when it provided false responses to her discovery
requests. The defendant admitted liability with respect to the plaintiff’s
breach of contract claim, and the plaintiff was awarded damages in
connection therewith. In dismissing the plaintiff’s claims of breach of the
implied covenant of good faith and fair dealing and negligent inflection
of emotional distress, however, the trial court concluded that those
claims were barred by the litigation privilege because they were predi-
cated on communications and statements made in the course of and
related to a judicial proceeding. The court also concluded that the
litigation privilege applied to the plaintiff’s allegations regarding the
defendant’s purported business practice of responding falsely to discov-
ery requests and dismissed that portion of the plaintiff’s CUTPA claim.
The court nevertheless determined that the litigation privilege did not
bar the plaintiff’s CUTPA claim to the extent that the plaintiff alleged
that the defendant maintained an improper business practice of condi-
tioning the receipt of underinsured motorist benefits on the provision
of an affidavit of no excess insurance, which purportedly was in violation
of statute (§ 38a-336c (c)). The Appellate Court dismissed the plaintiff’s
initial appeal for lack of a final judgment. The plaintiff then amended her
complaint to remove all allegations regarding the defendant’s purported
violation of § 38a-336c (c), and the trial court rendered judgment for
the plaintiff on her breach of contract claim and for the defendant on
the plaintiff’s extracontractual claims, from which the plaintiff
appealed. Held:
1. The trial court correctly determined that the litigation privilege barred
the plaintiff’s claim of breach of the implied covenant of good faith and
fair dealing: the plaintiff’s claim that the defendant systemically abused
the judicial process challenged the defendant’s conduct in defending
against her underinsured motorist claim, rather than the purpose of
the underlying judicial proceedings, and her claim was similar to a
defamation claim, to which the litigation privilege generally applies,
insofar as it was premised on the communication of false statements
in pleadings and other documents related to litigation; moreover, the
fact that the defendant made the allegedly false communications to its
attorneys rather than in court or directly to the court or to an opposing
party did not limit the application of the litigation privilege, as the
defendant’s communications to its attorneys led to misrepresentations
and deceptive answers in pleadings and documents that had been filed
during the course of litigation; furthermore, although the plaintiff
asserted that the bad faith element of a claim of breach of the implied
covenant of good faith and fair dealing was equivalent to the malicious
intent element of a vexatious litigation claim, to which the litigation
privilege generally does not apply, a complete definition of bad faith
demonstrated that the plaintiff’s good faith and fair dealing claim was
more akin to a claim of fraud, to which courts have applied the litigation
privilege, the fact that the plaintiff’s claim involved dishonesty did not
make it akin to a claim of vexatious litigation, and the fact that the
plaintiff alleged facts that may have been sufficient to support a vexa-
tious litigation claim did not prevent the litigation privilege from applying
to the claim she actually alleged; in addition, to the extent that the
plaintiff claimed that the common-law immunity afforded to knowingly
false communications made during judicial proceedings was abrogated
by statute (§ 52-99) or that public policy disfavored immunity under
these circumstances, those claims were unavailing, and there existed
safeguards other than civil liability to deter or preclude misconduct or
to provide relief from the defendant’s alleged misconduct.
2. The trial court properly applied the litigation privilege to the plaintiff’s
claim of negligent infliction of emotional distress, and, accordingly, that
claim was properly dismissed; the plaintiff’s allegations in support of
that claim incorporated the same allegations she made in support of
her claim of breach of the implied covenant of good faith and fair dealing
and also were premised on communications that the defendant made
during and relevant to the underlying judicial proceeding.
3. The plaintiff’s claim that the defendant violated CUTPA based on a viola-
tion of CUIPA was barred by the litigation privilege: the litigation privi-
lege bars CUTPA claims, like the claim at issue, premised solely on
general allegations of intentionally false discovery responses made by
an insurer during and relevant to a judicial proceeding because those
claims merely challenge the making of false statements; moreover, there
were no allegations in the plaintiff’s complaint that the defendant’s
misconduct occurred with such frequency as to constitute a statutorily
(§ 38a-816 (6)) prohibited general business practice, as her allegations
regarding that conduct were limited to the defendant’s conduct in the
present case; furthermore, although the business practice of misrepre-
senting facts relating to insurance coverage issues is prohibited by § 38a-
816 (6), CUIPA did not abrogate absolute immunity for conduct allegedly
in violation of that statute, as CUIPA does not impose liability for such
conduct by imposing a private right of action but, instead, limits the
remedy under that act to administrative action by the Commissioner of
Insurance, that remedy was available to the plaintiff, and the legislature
could have explicitly abrogated the immunity afforded by the litigation
privilege for violations of that statute but did not.
(One justice concurring in part and dissenting in part)
Argued April 28, 2021—officially released March 29, 2022 Procedural History