Dorfman v. Smith
SC20556
| Conn. | Mar 29, 2022Background
- Plaintiff Tamara Dorfman (an insured) sued Liberty Mutual Fire Insurance Co. alleging breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and violations of CUIPA/CUTPA stemming from an underinsured motorist claim.
- Complaint alleges Liberty Mutual knew it owed payment, forced Dorfman to litigate to obtain benefits, engaged in prelitigation and litigation misconduct (including false discovery responses and baseless defenses).
- The defendant invoked the common-law litigation privilege to bar the claims based on conduct during judicial proceedings.
- The Connecticut Supreme Court majority held that the litigation privilege barred Dorfman’s claims; Justice Ecker issued a concurrence in part and dissent in part.
- Justice Ecker argues (dissenting) that: insurer–insured relationships are unique; prelitigation refusal to pay and litigation abuse to avoid payment fall outside the privilege; properly pleaded bad‑faith and negligent emotional‑distress claims should survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the litigation privilege bars breach of the implied covenant (bad faith) claim | Dorfman: insurer’s prelitigation refusal to pay and subsequent misuse of litigation to avoid payment constitute bad faith and fall outside the privilege | Liberty Mutual: alleged wrongful statements/acts occurred in litigation and are absolutely privileged | Majority: privilege bars the bad‑faith claim; (Justice Ecker: dissent — prelitigation refusal and litigation misuse to avoid payment can state bad faith and are not barred) |
| Whether negligent infliction of emotional distress survives | Dorfman: claim flows from alleged bad‑faith conduct and should survive if bad faith is pleaded | Liberty Mutual: underlying conduct is privileged so related emotional‑distress claim is barred | Majority: barred (dissent: would survive if bad‑faith allegations are proven) |
| Whether CUIPA/CUTPA claim (false discovery responses) is barred by the litigation privilege | Dorfman: insurer’s false discovery responses and related conduct are part of unlawful claim‑settlement practice | Liberty Mutual: statements made in judicial proceedings are absolutely privileged, so CUTPA/CUIPA-based damages claims are barred | Majority: privilege bars the CUTPA/CUIPA claim premised solely on false discovery responses; (Ecker: concurs in dismissal for inadequate pleading but warns against broad rule barring systemic litigation‑based CUIPA/CUTPA claims) |
| Whether Dorfman adequately pleaded prelitigation misconduct or a general business practice | Dorfman: complaint alleges insurer compelled litigation and admitted the conduct wasn’t uniquely directed at her, implying a practice | Liberty Mutual: plaintiff failed to plead a general business practice or actionable prelitigation misconduct outside privileged litigation acts | Court: majority treated the pleadings as insufficient to escape privilege for the CUTPA/CUIPA claim; Ecker: reads complaint (liberally) to allege prelitigation refusal to pay and says those allegations suffice for bad‑faith claim at dismissal stage |
Key Cases Cited
- Buckman v. People Express, 205 Conn. 166 (recognition that insurance contracts impose an implied covenant of good faith supporting a tort action)
- Capstone Building Corp. v. American Motorists Ins. Co., 308 Conn. 760 (elements of bad‑faith claim; bad faith requires more than negligence and often violation of express duties)
- Simms v. Seaman, 308 Conn. 523 (analysis of the litigation privilege and when claims based on litigation conduct are barred)
- MacDermid, Inc. v. Leonetti, 310 Conn. 616 (framework: determine whether a claim is more like defamation/fraud or like abuse of process/vexatious litigation)
- Mozzochi v. Beck, 204 Conn. 490 (abuse of process tort: misuse of litigation process for an improper purpose can be actionable)
- General Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297 (3d Cir.) (recognizing that severe litigation tactics by an insurer can amount to abuse of process)