TAMARA DORFMAN v. JOSCELYN M. SMITH
(SC 20556)
Supreme Court of Connecticut
Argued April 28, 2021-officially released March 29, 2022
Robinson, C. J., and McDonald, D’Auria, Ecker and Keller, Js.
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Syllabus
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) (
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 vexatious 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 (
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 violation of CUIPA was barred by the litigation privilege: the litigation privilege 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 (
(One justice concurring in part and dissenting in part)
Argued April 28, 2021-officially released March 29, 2022
Procedural History
Action to recover damages for injuries sustained as a result of the named defendant‘s alleged negligence, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Robaina, J., granted the plaintiff‘s motion to add Liberty Mutual Fire Insurance Company as a defendant; thereafter, the action was withdrawn as against the named defendant; subsequently, the court, Noble, J., granted the motion filed by the defendant Liberty Mutual Fire Insurance Company to bifurcate the trial as to the second count of the operative complaint; thereafter, the second count was tried to the jury before Noble, J.; verdict for the plaintiff; subsequently, the court, Noble, J., granted in part the motion to dismiss the remaining counts filed by the defendant Liberty Mutual Fire Insurance Company; thereafter, the plaintiff withdrew the amended complaint in part, and the court, Noble, J., rendered judgment in part for the plaintiff and in part for the defendant Liberty Mutual Fire Insurance Company, from which the plaintiff appealed. Affirmed.
Philip T. Newbury, Jr., for the appellee (defendant Liberty Mutual Fire Insurance Company).
Opinion
The following facts and procedural history, as alleged in the complaint, construed in the light most favorable to the plaintiff, and contained in the record, are relevant to our review of these claims. In 2014, the plaintiff was injured when her motor vehicle collided with a vehicle operated by Joscelyn M. Smith, who failed to stop his vehicle at a stop sign. At the time of the collision, the defendant insured the plaintiff under a contract of motor vehicle insurance, which contained a provision for uninsured-underinsured motorist coverage as required by
As part of its general business practices, the defendant investigated the collision to determine the cause and legal responsibility. In investigating the plaintiff‘s claim, the defendant acquired the police report regarding the collision, the plaintiff‘s recorded statement, and the recorded statement of Birbahadu Guman, a witness to the collision who was not listed in the police report. The report and the statements all noted Smith‘s failure to stop at the stop sign. Based on this information, two claims specialists employed by the defendant both concluded that Smith was 100 percent liable for the collision and noted their findings in the claim file. The defendant notified the plaintiff that her right to pursue her claim was conditioned on her providing an affidavit of no excess insurance.
To compel payment of the underinsured motorist benefits, the plaintiff brought suit against the defendant, alleging breach of contract.1 The defendant hired attorneys to represent it in connection with the plaintiff‘s claim but deliberately withheld from them its file notes regarding the claim, Guman‘s name and existence, and Guman‘s recorded statement, even though it knew this information was necessary for its attorneys to prepare accurate responses to the plaintiff‘s complaint and discovery requests. In answering the complaint, the defendant pleaded that either it denied or did not have sufficient information to admit the allegations that Smith had failed
The plaintiff‘s attorney then noticed the defendant‘s deposition to address, in part, the factual basis behind its answer and special defense. The defendant moved for a protective order. Additionally, the defendant provided false responses to the plaintiff‘s discovery requests, including that it did not know of the existence of any witnesses not listed in the police report and whether any recorded statements existed. In further response to the deposition notice, the defendant‘s corporate designee testified under oath, admitting that “[t]here was no basis in fact for [the defendant‘s] accusation that [the plaintiff] was in any way responsible for causing the accident” and that the defendant “had known that there was nothing [the plaintiff] could have done to avoid the accident . . . .” The defendant‘s designee also admitted that the defendant was aware that Guman had witnessed the accident and made a recorded statement but failed to disclose this information in its interrogatory responses. On the basis of this conduct, the plaintiff alleges that the defendant “used intentional misstatements, intentional misrepresentations, intentionally deceptive answers, and violated established rules of conduct in litigation,” and “knowingly and intentionally engaged in dishonest and sinister litigation practices by taking legal positions that were without factual support” to try to prevent the plaintiff from receiving the benefits owed to her under the contract.
The defendant‘s designee also testified under oath that, in addition to this misconduct, “[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 but was instead pursuing conduct that Liberty Mutual Corporation routinely takes in its handling of claims from other policyholders as well.” Similarly, the defendant‘s designee “testified under oath that [the defendant] did not single out [the plaintiff] for special or unique treatment when it responded falsely to [her] discovery requests.”
Following this deposition, the trial court granted the plaintiff permission to amend her complaint to include claims for breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and violation of CUTPA based on a violation of CUIPA. The defendant moved to bifurcate the breach of contract claim from the extracontractual claims, which the trial court granted. Prior to trial on the breach of contract claim, the defendant withdrew its special defense of contributory negligence. At trial on the breach of contract claim, the defendant admitted liability, and a jury awarded the plaintiff $169,928.
After the verdict, the defendant moved to dismiss the remaining claims for lack of subject matter jurisdiction on the ground that the litigation privilege barred those claims. The trial court granted the motion in part and denied it in part. Specifically, as to the plaintiff‘s claims for breach of the implied covenant of good faith and fair dealing and negligent inflection of emotional distress, the trial court held that, because the claims were predicated on communications and statements filed in the course of and related to a judicial proceeding, the litigation privilege applied. For the
The plaintiff appealed from the trial court‘s decision on the defendant‘s motion to dismiss, but the Appellate Court dismissed the appeal for lack of a final judgment in light of the continued viability of the CUTPA claim. The plaintiff subsequently requested and received permission to amend her complaint to remove all allegations regarding the alleged violation of
I
Before addressing the applicability of the litigation privilege, “[w]e begin our analysis with a review of [this] doctrine . . . as set forth in Simms v. Seaman, 308 Conn. 523, 531-40, 69 A.3d 880 (2013). In Simms, we noted that the doctrine of absolute immunity originated in response to the need to bar persons accused of crimes from suing their accusers for defamation. . . . The doctrine then developed to encompass and bar defamation claims against all participants in judicial proceedings, including judges, attorneys, parties, and witnesses. . . . We further noted that, [l]ike other jurisdictions, Connecticut has long recognized the litigation privilege, and that [t]he general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely, knowingly, and with express malice, impose no liability for damages recoverable in an action in slander . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 616, 627, 79 A.3d 60 (2013).
Recently, in Scholz v. Epstein, 341 Conn. 1, 10, 266 A.3d 127 (2021), we recognized the policy rationales underlying this privilege.2 Although we articulated these
We since have recognized that absolute immunity extends to an array of retaliatory civil actions beyond
claims of defamation, including intentional interference with contractual or beneficial relations arising from statements made during a civil action, intentional infliction of emotional distress arising from statements made during judicial proceedings, and fraud against attorneys or party opponents for their actions during litigation. See id., 628; Tyler v. Tatoian, 164 Conn. App. 82, 92, 137 A.3d 801 (2016), cert. denied, 321 Conn. 908, 135 A.3d 710 (2016). This expansion is premised on the rationale that, “because the privilege protects the communication, the nature of the theory [on which the challenge is based] is irrelevant.” (Emphasis omitted; internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 628.
This court in Simms, however, explained that there are limits to the application of the litigation privilege. See Simms v. Seaman, supra, 308 Conn. 540-41. Specifically, the litigation privilege does not bar claims for abuse of process, vexatious litigation, and malicious prosecution. Id., 540-42. This is because “whether and what form of immunity applies in any given case is a matter of policy that requires a balancing of interests . . . .” (Citation omitted; internal quotation marks omitted.) Id., 541-42.
Specifically, Simms identified the following factors as relevant to any determination of whether policy considerations support applying absolute immunity to any particular cause of action:3 (1) whether the
The plaintiff does not address these factors as to each count the trial court dismissed but, rather, argues generally that counts three, four, and five are not barred
by absolute immunity because all three counts are premised on the defendant‘s improper use of the courts, all three counts are the functional equivalent of a claim for vexatious litigation, to which absolute immunity does not apply, and statutes and case law establish a public policy against applying the litigation privilege to the alleged conduct.
The applicability of absolute immunity implicates the court‘s subject matter jurisdiction.5 E.g., Bruno v. Travelers Cos., 172 Conn. App. 717, 723, 161 A.3d 630 (2017); cf. Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005) (like colorable claim of sovereign immunity, to protect against threat of lawsuit, colorable claim of absolute immunity based on participation in judicial and quasi-judicial proceedings gives rise to immediately appealable final judgment). “When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss . . . a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 626. Whether absolute immunity applies to the causes of action at issue is a question of law subject to de novo review. See, e.g., Simms v. Seaman, supra, 308 Conn. 530. This is consistent with our de novo review of a trial court‘s ultimate legal conclusion and resulting determination of a motion to dismiss. See, e.g., MacDermid, Inc. v. Leonetti, supra, 626.
We address in turn each of the plaintiff‘s arguments as to each dismissed count.
II
The plaintiff‘s claim for breach of the implied covenant of good faith and fair dealing appears in count three of her complaint. The plaintiff alleged that the defendant falsely responded to the complaint, including by asserting a special defense the defendant knew had no basis in fact, as well as falsely responding to interrogatories and discovery requests. As a result, the defendant “used intentional misstatements, intentional misrepresentations, intentionally deceptive answers, and violated established rules of conduct in litigation,” and “knowingly and intentionally engaged in dishonest and sinister litigation practices by taking legal positions that were without factual support in order to further frustrate [the plaintiff‘s] ability to receive benefits due [to her] under her contract.” According to the plaintiff, through this conduct, the defendant (1) engaged in unfair, deceptive, and self-serving conduct, (2) deceitfully and maliciously attributed responsibility for the car crash to the plaintiff, (3) compelled the plaintiff to resort to litigation to obtain her benefits, and (4) filed false and misleading answers in pleadings and discovery responses it knew had no basis in fact to prolong litiga-
tion and to attempt to reduce the plaintiff‘s insurance benefits.
No appellate authority from this state addresses whether absolute immunity protects against this kind of claim. As a result, we must examine our case law, and the policies underpinning it, to determine whether the plaintiff‘s good faith and fair dealing claim is more akin to claims of vexatious litigation and abuse of process, to which this court has not afforded absolute immunity, or to claims of fraud and defamation, to which this court has afforded absolute immunity. We conclude that all factors-those considered in Simms and those unique to this case-weigh in favor of applying the litigation privilege to bar the plaintiff‘s claim in the present case.
A
The plaintiff argues that her claim for breach of the implied covenant of good faith and fair dealing alleges conduct showing that the defendant systemically abused the judicial process and thereby improperly used the courts. “We have . . . recognized a distinction between attempting to impose liability [on] a participant in a judicial proceeding for the words used therein and attempting to impose liability [on] a litigant for his improper use of the
Thus, in determining whether the plaintiff‘s claim challenges the purpose of an underlying judicial proceeding, we look at the elements of the claim itself. See Simms v. Seaman, supra, 308 Conn. 546; see also MacDermid, Inc. v. Leonetti, supra, 310 Conn. 629, 631. “To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff‘s right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.” (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 399, 142 A.3d 227 (2016).
The plaintiff‘s claim does not challenge the purpose of any underlying litigation. Rather, her claim challenges the defendant‘s conduct in defending against her underinsured motorist claim.6 A claim of breach of the covenant of good faith and fair dealing in general does not challenge the purpose of an underlying judicial proceeding, like a claim of vexatious litigation or abuse of process. Additionally, claims regarding good faith and fair dealing are distinguishable from other claims that the litigation privilege does not bar. Specifically, in MacDermid, Inc. v. Leonetti, supra, 310 Conn. 631, we held that the litigation privilege does not apply to claims alleging a violation of
The fact that the misconduct at issue allegedly affected the underlying judicial proceeding does not alter our analysis. Although the plaintiff‘s complaint contains allegations that the defendant, through its litigation conduct, improperly used and abused the judicial process, unless the plaintiff‘s cause of action challenges the purpose of the litigation or litigation procedure,
these allegations do not suffice to establish an improper use of the judicial system. A claim of abuse of process may be premised on the improper use of a particular judicial procedure. But allegations of the improper use of judicial procedure do not satisfy the requirement that the plaintiff‘s cause of action must itself challenge the purpose of the underlying litigation or litigation procedure. If the concurrence and dissent were correct that the plaintiff‘s factual allegations were sufficient in the present case to challenge the defendant‘s use of the courts, any plaintiff could pierce the litigation privilege with any cause of action by merely including allegations that a defendant‘s conduct constituted an abuse of the judicial system.
As a result, although these allegations do implicate the underlying judicial proceedings, they do not challenge their purpose. Rather than subverting the purpose of the proceedings, the alleged conduct would have rendered the proceeding unfair. As with claims of fraud, although we do not condone such conduct, such unfairness does not bar absolute immunity but, instead, makes clear the importance of the availability of other remedies. See also part II C of this opinion. Thus, the plaintiff‘s claim for breach of the covenant of good faith and fair dealing does not challenge the purpose of an underlying judicial proceeding.
B
The plaintiff argues that this claim is not only similar to, but is actually the functional equivalent of, a vexatious litigation claim. In considering the plaintiff‘s arguments, it is helpful to examine how we analyzed a similar argument in Simms in relation to a claim of fraud. In Simms, this court compared the elements of fraud against the elements of defamation7 and vexatious litigation.8 In doing
the privilege.
The plaintiff‘s claim for breach of the implied covenant of good faith and fair dealing, like a defamation claim, is premised on the communication of false statements during litigation.9 Although the elements of the plaintiff‘s claim do not specifically mention communications; see part II A of this opinion; we must consider not only the elements of the cause of action but also whether the complaint contains “allegations that a party suffered harm because of a falsehood communicated by the opponent‘s attorney.” Simms v. Seaman, supra, 308 Conn. 548; see also Bruno v. Travelers Cos., supra, 172 Conn. App. 728. The allegations in the plaintiff‘s complaint make clear that she is challenging the defendant‘s conduct in defending against the underlying underinsured motorist claim. Specifically, her claim is premised on allegations that the defendant used “intentional misstatements, intentional misrepresentations, [and] intentionally deceptive answers” to “knowingly and intentionally [engage] in dishonest and sinister litigation practices by taking legal positions that were without factual support . . . .” The plaintiff clearly premises her claim in this action on false statements made in pleadings and other documents filed in relation to the breach of contract claim in the underlying action.
This court consistently has held that communications made during and relevant to a judicial proceeding are afforded immunity because “[w]itnesses and parties to judicial proceedings must be permitted to speak freely, without subjecting their statements and intentions to later scrutiny by an indignant jury, if the judicial
To the extent the plaintiff‘s claim is premised on false statements contained in pleadings and documents related to the litigation-such as the allegedly false statements contained in the defendant‘s answer, special defense, and discovery responses-the privilege clearly applies. The plaintiff makes no argument that these statements were not related to or made in the course of the litigation of her underinsured motorist insurance claim. This is logical given that a defendant‘s answer, special defense, and discovery responses clearly are relevant to and made during the underlying litigation.
The plaintiff argues, however, that her claim is not premised on false communications but on misconduct-specifically, that the defendant intentionally withheld information from its attorneys and thus knew that the answer, special defense, and discovery responses were false and had no basis in fact. We are not persuaded. The crux of the plaintiff‘s claim remains false communications, regardless of how the defendant went about making those false communications. For example, immunity would apply if either (1) the defendant‘s attorneys had made these statements but knew them to be false, or (2) the defendant, in the underlying litigation, had made these same misrepresentations in the pleadings and discovery responses. See DeLaurentis v. New Haven, supra, 220 Conn. 264 (“a party . . . is not liable for the words used in the pleadings and documents used to prosecute the suit“); Petyan v. Ellis, supra, 200 Conn. 251-52 (“it applies to statements made in pleadings or other documents prepared in connection with a court proceeding“); Alexandru v. Strong, 81 Conn. App. 68, 83, 837 A.2d 875 (2004) (“The privilege applies . . . to statements made in pleadings or other documents prepared in connection with a court proceeding. . . . That absolute privilege applies regardless of whether the representations at issue could be characterized as false, extreme or outrageous.” (Citations omitted; internal quotation marks omitted.)), cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). The fact that the defendant made these misrepresentations to its own attorneys with the intent that the attorneys would then file false pleadings and discovery responses does not change the outcome. The only factual difference in the present case is that the defendant‘s attorneys served as intermediaries. The fact that the defendant did not makes these false communications in court, or directly to the trial court or an opposing party, does not limit the application of the privilege. See, e.g., Hopkins v. O‘Connor, supra, 282 Conn. 826 (“the absolute privilege that is granted to statements made in furtherance of a judicial proceeding extends to every step of the proceeding until final disposition“); id., 832 (“[t]he scope of privileged communication extends not merely to those made directly to a tribunal, but also to those preparatory communications that may be directed to the goal
Our Appellate Court has relied on a similar rationale in applying the litigation privilege to a claim for negligent infliction of emotional distress premised on the
withholding of information. In Stone v. Pattis, 144 Conn. App. 79, 96, 72 A.3d 1138 (2013), the plaintiffs alleged that the defendants conspired to unduly subpoena witnesses, to conceal from the court the reasons for not calling certain witnesses, and not to disclose certain information. The plaintiffs argued that their claim was premised on deceptive and unfair conduct, not false communications. See id.. The Appellate Court disagreed, concluding that the alleged conduct constituted “communications made within the context of a judicial proceeding,” even though the false communications were the result of an alleged conspiracy to withhold information. Id., 99.
The present case is similar to Stone.10 The plaintiff‘s claim of breach of the implied covenant of good faith and fair dealing is premised on the defendant‘s false communication of information to its attorneys, leading to misrepresentations and deceptive answers filed in pleadings and documents during the course of litigation. That the defendant knew these communications were false and did not take steps to notify its attorneys of the truth does not preclude application of the litigation privilege. The accuracy of a statement is irrelevant to the application of the privilege, even if the defendant knows the statement is false. See Simms v. Seaman, supra, 308 Conn. 548 (” ‘because the privilege protects the communication, the nature of the theory [on which the challenge is based] is irrelevant ’ (emphasis omitted)); Hopkins v. O‘Connor, supra, 282 Conn. 838 (if “the communications are uttered or published in the course of judicial proceedings,
Additionally, unlike the elements of a claim for vexatious litigation,11 the elements of a claim for breach of the implied covenant of good faith and fair dealing lack any safeguards that balance the need to protect against inappropriate retaliatory litigation while incentivizing the reporting of wrongdoing. See footnote 9 of this opinion. The elements of the good faith and fair dealing claim at issue require the plaintiff to allege only that the defendant impeded the plaintiff‘s right to receive benefits that she reasonably expected to receive under the contract and did so in bad faith. See, e.g., Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 399.
The plaintiff nevertheless argues that this bad faith element is equivalent to the malicious intent element of a vexatious litigation claim, requiring that the defendant acted “primarily for a purpose other than that of bringing an offender to justice“; Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007); because bad faith is defined
as “more than mere negligence; it involves a dishonest purpose.” (Internal quotation marks omitted.) This argument misses the mark because the plaintiff does not fully define “bad faith” in the context of a breach of the implied covenant of good faith and fair dealing claim. This court has explained that, in relation to such a claim, “[b]ad faith in general implies . . . actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one‘s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Emphasis added; internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 399-400.
This more complete definition of bad faith demonstrates that this claim is more akin to a claim of fraud, to which our appellate courts have applied the litigation privilege. See Simms v. Seaman, supra, 308 Conn. 568-69; Tyler v. Tatoian, supra, 164 Conn. App. 91-92. If a claim of breach of the implied covenant of good faith and fair dealing may be premised on fraud in relation to a contract, and claims of fraud are afforded absolute immunity, it is logical that the immunity likewise extends to claims of breach of the implied covenant of good faith and fair dealing. As to the other ways to establish the element of bad faith-misleading, deceiving, or acting with a sinister or interested motive-such conduct is similar to the requirement of a fraud claim that the defendant knowingly made an untrue
Additionally, the elements of the plaintiff‘s claim do not include safeguards such as those found in a vexatious litigation claim: for example, that the prior action was brought without probable cause or that it terminated in the plaintiff‘s favor. The plaintiff does not dispute this. Rather, she argues that she alleged sufficient facts to satisfy the stringent vexatious litigation elements, and, thus, as alleged, her claim is equivalent to a claim for vexatious litigation, including all of its safeguards.12 Specifically, she argues that her allegation that the defendant knew it had no factual basis to allege the special defense of contributory negligence was the equivalent of alleging a lack of probable cause under a vexatious litigation claim. She also argues that the fact that the underlying claim for breach of contract resulted in a verdict in her favor is the equivalent of an underlying proceeding terminating in her favor.
The question, however, is not whether her factual
allegations are similar to the allegations necessary to raise a claim for vexatious litigation but whether the elements of the claim she has alleged provide similar safeguards to balance the competing interests at stake. See Simms v. Seaman, supra, 308 Conn. 545. The fact that the plaintiff alleged facts that may have been sufficient to support a claim for vexatious litigation does not prevent the litigation privilege from applying to the claim alleged. See Perugini v. Giuliano, supra, 148 Conn. App. 874-75 (holding that absolute immunity barred claim alleging that defendant attorney engaged in misconduct for purpose of personal financial gain but noting that plaintiff may have been able to, but did not, bring abuse of process action). The plaintiff could have, but did not, advance a claim for vexatious litigation.
The plaintiff further argues that her claim is similar to a claim of vexatious litigation because protection of allegedly dishonest conduct does not further the public policy of candor in judicial proceedings but, rather, violates the state‘s public policy against untrue allegations or denials in the course of litigation, as evidenced by
To the extent the plaintiff is attempting to argue that
To the extent the plaintiff is arguing that public policy disfavors immunity under these circumstances, we disagree. If anything, as discussed more in part II C of this opinion,
for addressing and disincentivizing the alleged conduct. Additionally, our case law does not support a public policy disfavoring immunity for false pleadings but, to the contrary, manifests, as discussed, a policy in favor of immunizing communications made during and relevant to litigation, even if they are intentionally false and malicious. The cases the plaintiff cites in support of her public policy argument either are vexatious litigation and abuse of process cases-causes of action that were not alleged in the present case-or do not involve the litigation privilege.
Our conclusion does not, as the plaintiff argues, render
The plaintiff also fails to recognize that, unlike
This possibility of retaliatory litigation is made clear by the plaintiff‘s own argument before the trial court. There, the plaintiff suggested that, in regard to such claims, a hearing is required to determine jurisdiction because these claims are actionable only if there was no basis in fact for the defendant‘s special defense. Although no hearing was in fact held in the present case, and the plaintiff argues on appeal that the record is sufficient to establish that the defendant had no basis in fact for its special defense based on the deposition of its representative, the plaintiff‘s argument shows the
weakness of her position before this court. If a claim for breach of the implied covenant of good faith and fair dealing is exempt from immunity only if there was evidentiary support for the allegation that the defendant knew its statement had no basis in fact, and a “jurisdictional” hearing would have to be held to determine this preliminary issue, then individuals will be forced to defend themselves in these hearings against retaliatory claims. Such a procedure is in direct conflict with the purpose of the litigation privilege-to ensure “the proper and efficient administration of justice“; Hopkins v. O‘Connor, supra, 282 Conn. 839; and to protect individuals from “incurring the costs and inconvenience associated with defending a [retaliatory] suit . . . .” (Internal quotation marks omitted.) Simms v. Seaman, supra, 308 Conn. 539.
Accordingly, the plaintiff‘s claim for breach of the implied covenant of good faith and fair dealing is more akin to a claim of defamation or fraud.
C
Finally,13 we consider whether safeguards other than civil liability deter or preclude misconduct or provide relief from the alleged misconduct. See id., 552. This factor is answered by the plaintiff‘s own arguments, which highlight other such safeguards. First,
misconduct and deprive insureds of their contractual benefits.
In sum, because the plaintiff‘s claim for breach of the implied covenant of good faith and fair dealing is premised on false communications, does not challenge the purpose underlying a judicial proceeding, is more akin to a claim for defamation or fraud, and may be addressed by other remedies, we conclude that the trial court properly applied the litigation privilege.
III
For the same reasons, we conclude that the trial court properly applied the litigation privilege to the plaintiff‘s claim of negligent infliction of emotional distress. Connecticut appellate courts consistently have held that claims of negligent infliction of emotional distress14 premised on communications made during and relevant to an underlying judicial proceeding are afforded absolute immunity. See, e.g., Bruno v. Travelers Cos., supra, 172 Conn. App. 719, 727; Perugini v. Giuliano, supra, 148 Conn. App. 873-74; Stone v. Pattis, supra, 144 Conn. App. 99-100; see also Simms v. Seaman, supra, 308 Conn. 569-70 (applying litigation privilege to claim of intentional infliction of emotional distress premised on communication made during and relevant to underlying judicial proceeding).
In the present case, the plaintiff‘s allegations in support of this claim incorporate the same allegations she made in her claim for breach of the implied covenant of good faith and fair dealing. In light of our holding in Simms that that claim is premised on communications made during and relevant to an underlying judicial proceeding, the same analysis and holding apply here. See Simms v. Seaman, supra, 308 Conn. 570. Accordingly, the trial court properly applied the litigation privilege to the plaintiff‘s claim for negligent infliction of emotional distress.
IV
The plaintiff‘s final count, asserting a violation of CUTPA based on a violation of CUIPA, presents a more difficult issue. To address this issue, it is important first to specify the allegations advanced in support of this count. The plaintiff incorporated by reference the allegations she made in support of her claim for breach of the implied covenant of good faith and fair dealing. Additionally, she alleged that the defendant‘s designee “testified under oath that [the defendant] did not single out [the plaintiff] for special or unique treatment when it responded falsely to [her] discovery requests.”15 According to the plaintiff,
and equitable settlement of claims, and (5) compelled insureds to institute litigation to recover amounts due under an insurance policy.
“CUTPA is, on its face, a remedial statute that broadly prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. . . . To give effect to its provisions, [
Relevant to the present claim, CUIPA prohibits unfair claim settlement practices, which the legislature has defined as “[c]ommitting or performing with such frequency as to indicate a general business practice any of the following: (A) [m]isrepresenting pertinent facts or insurance policy provisions relating to coverages at issue . . . (C) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (D) refusing to pay claims without conducting a reasonable investigation based [on] all available information . . . (F) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear; (G) compelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds . . . .” (Emphasis added.)
At oral argument before this court, the plaintiff‘s appellate counsel, in response to a question, repre-
sented that the plaintiff‘s complaint contained an allegation that the defendant has a business practice of withholding information from its attorneys to ensure false pleadings, as well as a business practice of alleging contributory negligence as a special defense in response to every claim, even if it knows the allegation is false. The plaintiff argued that this alleged
If the plaintiff‘s complaint actually contained such allegations of a general business practice, perhaps this might have been a closer case. But we have scoured the plaintiff‘s complaint in search of these allegations about the defendant‘s business practices to no avail. Although there are allegations that, in the plaintiff‘s particular case, the defendant intentionally concealed information and evidence from its attorneys and alleged the special defense of contributory negligence despite knowing this allegation to be false, there are no allegations in the plaintiff‘s complaint that this conduct occurred with such frequency as to constitute a general business practice, despite the trial court‘s having permitted the plaintiff to amend her complaint to include a claimed violation of CUTPA after she learned of the defendant‘s conduct through discovery. Rather, the plaintiff‘s allegations regarding this conduct are limited to the defendant‘s conduct in this case alone.
The plaintiff alleged only that the defendant “did not single [her] out . . . for special or unique treatment when it responded falsely to [her] discovery requests.”16 The plaintiff then alleged that such conduct constituted a general business practice. Even if we assume that these allegations are sufficient to allege that this conduct occurred with such frequency as to indicate a general business practice,17 the plaintiff‘s CUTPA claim, as alleged, is barred by the doctrine of absolute immunity under the litigation privilege.
A business practice of responding falsely to discovery requests, to the extent it involves “[m]isrepresenting pertinent facts or insurance policy provisions relating to coverages at issue,” is prohibited under CUIPA.
proceeding, the conduct is absolutely privileged, even if the statements were made falsely or maliciously.
The plaintiff argues, however, that absolute immunity would undermine the legislative intent of CUIPA, which is to
Nevertheless, our case law makes clear that an insurer may be held liable under CUTPA for conduct proscribed by
164 Conn. App. 86-87, 93-94 (CUTPA claim against attorney for communications made in course of prior judicial proceeding was barred by litigation privilege). These holdings are in line with case law from other jurisdictions, the majority of which have applied the litigation privilege to both common-law and statutory causes of action, including claims for unfair trade practices brought pursuant to the jurisdiction‘s analogue to CUTPA. See, e.g., Graham v. U.S. Bank, National Assn., No. 3:15-cv-0990-AC, 2015 WL 10322087, *16 (D. Or. December 2, 2015) (“Statutory torts are subject to the litigation privilege. Where the Oregon legislature explicitly or implicitly creates a cause of action for violating state law, such a cause of action is a statutory tort [including state law claims for trespass to chattels and under the Oregon Unlawful Trade Practices Act].“); Trent v. Mortgage Electronic Registration Systems, Inc., 618 F. Supp. 2d 1356, 1360 (M.D. Fla. 2007) (holding that litigation privilege “precludes communications attached to or made part of a foreclosure complaint from forming the basis of [an unfair trade practices claim]” but does not preclude such a claim premised on presuit communications), aff‘d, 288 Fed. Appx. 571 (11th Cir. 2008); PSN Illinois, Inc. v. Ivoclar Vivadent, Inc., No. 04 C 7232, 2005 WL 2347209, *6 (N.D. Ill. September 21, 2005) (“the litigation privilege also precludes [the defendant‘s] deceptive trade practices claim based on
Under this precedent, the litigation privilege bars CUTPA claims, like the claim at issue, premised solely on general allegations of intentionally false discovery responses because these claims merely challenge the making of false statements. Additionally, there are other remedies available to deter the alleged conduct.18 See Tyler v. Tatoian, supra, 164 Conn. App. 93-94. This does not mean, however, that a defendant enjoys absolute immunity from all CUTPA claims under the litigation privilege, even those premised on a violation of CUIPA. Rather, we merely hold that this specific claim-a business practice of filing false discovery responses-is afforded absolute immunity. We recognize that the legislature intended to prohibit certain unfair and deceptive business practices by enacting CUTPA and CUIPA, but the plaintiff has not cited, and we have not discovered, any provision of these statutes that explicitly abrogates the common-law litigation privilege, which, historically, has been applied to false and malicious statements made during and relevant to judicial proceedings. Our holding leaves open the possibility that other CUTPA claims may not be barred by absolute immunity under the litigation privilege. Thus, we con-
clude that the litigation
The judgment is affirmed.
In this opinion ROBINSON, C. J., and McDONALD and KELLER, Js., concurred.