342 Conn. 582
Conn.2022Background
- Plaintiff Dorfman was injured in a 2014 car collision with Liberty Mutual’s insured and filed an underinsured motorist claim under her policy.
- Liberty’s claim file (police report and recorded witness statements) indicated the insured was 100% at fault; Liberty conditioned payout on an affidavit of no excess insurance.
- Liberty retained outside counsel but withheld from them its file notes identifying a witness and a recorded statement, then answered pleadings and discovery (including a contributory negligence special defense) in ways the company knew were factually unsupported.
- At trial on the contract claim Liberty admitted liability and the jury awarded damages; Liberty moved to dismiss the remaining extracontractual counts (breach of implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and CUTPA claim based on CUIPA) on litigation-privilege grounds.
- The trial court dismissed the extracontractual claims as barred by the litigation privilege (except a pre-suit affidavit-related theory that was later withdrawn); the Supreme Court reviewed whether absolute immunity applies to these claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the litigation privilege bar a breach of the implied covenant of good faith and fair dealing claim premised on knowingly false litigation communications? | Dorfman: claim is the functional equivalent of vexatious litigation/abuse of process and thus not privileged; bad-faith element prevents immunity. | Liberty: claim attacks communications made in litigation and so is absolutely privileged. | Privilege bars the claim; it is premised on false communications during litigation and does not challenge the purpose of the judicial process. |
| Does the litigation privilege bar negligent infliction of emotional distress based on the same litigation communications? | Dorfman: emotional harm from litigation conduct is actionable. | Liberty: same privilege analysis applies because the allegations track the litigation communications. | Barred by the litigation privilege for the same reasons as the breach-of-covenant claim. |
| Is a CUTPA claim (based on CUIPA) alleging a business practice of filing false discovery responses barred by the litigation privilege? | Dorfman: CUIPA/CUTPA were meant to police insurer misrepresentations; privilege should not shield statutory unfair-practices claims. | Liberty: a claim premised on false statements made during litigation is absolutely privileged; CUIPA doesn’t create a private federal right that abrogates privilege. | Privilege bars a CUTPA/CUIPA claim grounded only in false litigation communications or discovery responses; such conduct is historically privileged and other remedies exist. |
| Does CUIPA or § 52‑99 (or inherent court powers) abrogate the litigation privilege or preserve jurisdiction to pursue these claims? | Dorfman: § 52‑99 and public policy against false pleadings mean privilege should not block civil claims; CUIPA’s purpose favors accountability. | Liberty: CUIPA does not expressly abrogate privilege and limits enforcement to the Insurance Commissioner; § 52‑99 and sanctions are alternative remedies. | Neither CUIPA nor § 52‑99 expressly abrogates the privilege; alternative remedies (sanctions, inherent powers, Commissioner enforcement, vexatious-litigation causes) are available, so privilege stands. |
Key Cases Cited
- Simms v. Seaman, 69 A.3d 880 (Conn. 2013) (articulates litigation-privilege limits and balancing factors; distinguishes claims that subvert judicial purpose)
- MacDermid, Inc. v. Leonetti, 79 A.3d 60 (Conn. 2013) (applies privilege broadly to litigation communications; analyzes when claims challenging improper use of courts are excepted)
- Scholz v. Epstein, 266 A.3d 127 (Conn. 2021) (summarizes policy rationales for absolute immunity in judicial contexts)
- Hopkins v. O'Connor, 925 A.2d 1030 (Conn. 2007) (privilege extends generously to pleadings and papers related to proceedings)
- DeLaurentis v. New Haven, 597 A.2d 807 (Conn. 1991) (absolute privilege protects parties and witnesses to permit candid participation in judicial proceedings)
- Mead v. Burns, 509 A.2d 11 (Conn. 1986) (recognizes that CUIPA violations may form the basis of a CUTPA action but does not address abrogation of litigation privilege)