Dorfman v. Smith

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
TAMARA DORFMAN v. JOSCELYN M. SMITH
(SC 20556)
Robinson, C. J., and McDonald, D’Auria,
Ecker and Keller, Js.
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) (§ 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
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; there-
after, 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 sec-
ond 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 Insur-
ance 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.
Proloy K. Das, with whom were Leonard M. Isaac,
James J. Nugent, Marilyn B. Fagelson and, on the brief,
Brian Parrott, for the appellant (plaintiff).
Philip T. Newbury, Jr., for the appellee (defendant
Liberty Mutual Fire Insurance Company).
Opinion
D’AURIA, J. This appeal requires that we examine
the scope of the litigation privilege, which provides
absolute immunity from suit, in relation to alleged mis-
conduct by an insurance company. The plaintiff, Tamara
Dorfman, appeals from that part of the trial court’s
judgment dismissing her claims against the defendant
Liberty Mutual Fire Insurance Company for breach of
the implied covenant of good faith and fair dealing, negli-
gent infliction of emotional distress, and violation of
the Connecticut Unfair Trade Practices Act (CUTPA);
General Statutes § 42-110a et seq.; based on a violation
of the Connecticut Unfair Insurance Practices Act (CUI-
PA),General Statutes § 38a-815 et seq. The trial court
dismissed these claims on the ground that the litigation
privilege deprived the court of subject matter jurisdic-
tion over these claims. The plaintiff argues that, because
these claims were the functional equivalent of claims
for vexatious litigation, the litigation privilege did not
apply. We disagree and, accordingly, affirm the judg-
ment of the trial court.
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 unin-
sured-underinsured motorist coverage as required by
General Statutes § 38a-336. At the time of the collision,
Smith was underinsured, and the plaintiff filed a claim
with the defendant under the underinsured motorist
provision of her insurance contract.
As part of its general business practices, the defen-
dant investigated the collision to determine the cause
and legal responsibility. In investigating the plaintiff’s
claim, the defendant acquired the police report regard-
ing 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 attor-
neys 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 dis-
covery requests. In answering the complaint, the defen-
dant pleaded that either it denied or did not have
sufficient information to admit the allegations that
Smith had failed to stop at a stop sign, causing the
collision and the plaintiff’s resulting injuries. The defen-
dant also asserted a special defense of contributory
negligence, even though it knew this to be false. As a
result, the plaintiff alleges that the defendant’s answer
‘‘falsely responded to . . . [the] allegation[s]’’ in the
complaint, in violation of General Statutes § 52-99.
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 pro-
vided 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 des-
ignee 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 state-
ment but failed to disclose this information in its inter-
rogatory responses. On the basis of this conduct, the
plaintiff alleges that the defendant ‘‘used intentional
misstatements, intentional misrepresentations, inten-
tionally 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 treat-
ment 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 dis-
tress, 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 liabil-
ity, 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 dis-
tress, 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 same reason, as to
the plaintiff’s claim for violation of CUTPA based on a
violation of CUIPA, the trial court determined that the
allegations regarding a business practice of responding
falsely to discovery requests also were privileged. The
trial court determined, however, that, to the extent the
plaintiff’s CUTPA claim alleged that the defendant main-
tained an improper business practice of conditioning
receipt of underinsured motorist benefits on the provi-
sion of an affidavit of no excess insurance, in violation
of General Statutes § 38a-336c (c), the litigation privi-
lege did not bar such a claim because this practice did
not occur during the judicial proceedings but occurred
before the action commenced. Thus, the trial court
granted the motion to dismiss except as to the plaintiff’s
CUTPA claim to the extent it was premised on a viola-
tion of § 38a-336c (c).
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 per-
mission to amend her complaint to remove all allega-
tions regarding the alleged violation of § 38a-336c (c).
Because the alleged violation of § 38a-336c (c) was the
only claim to have survived the motion to dismiss, the
trial court determined that the withdrawal of these alle-
gations effectively withdrew this theory of liability.
Accordingly, the court rendered judgment in favor of
the defendant on all of the plaintiff’s extracontractual
claims. The plaintiff then appealed to the Appellate
Court. The appeal was then transferred to this court
pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.
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 defama-
tion claims against all participants in judicial proceed-
ings, including judges, attorneys, parties, and
witnesses. . . . We further noted that, [l]ike other
jurisdictions, Connecticut has long recognized the liti-
gation 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 recover-
able 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
rationales in relation to a claim brought against an attor-
ney for communications made during a judicial pro-
ceeding, we also have relied on these rationales to apply
immunity to claims brought against party opponents
and witnesses: ‘‘[T]he purpose of affording absolute
immunity to those who provide information in connec-
tion with judicial and quasi-judicial proceedings is that
in certain situations the public interest in having people
speak freely outweighs the risk that individuals will
occasionally abuse the privilege by making false and
malicious statements. . . . [T]he possibility of incur-
ring the costs and inconvenience associated with defend-
ing a [retaliatory] suit might well deter a citizen with
a legitimate grievance from filing a complaint. . . . Put
simply, absolute immunity furthers the public policy of
encouraging participation and candor in judicial and
quasi-judicial proceedings. This objective would be
thwarted if those persons whom the common-law doc-
trine [of absolute immunity] was intended to protect
nevertheless faced the threat of suit. In this regard, the
purpose of the absolute immunity afforded participants
in judicial and quasi-judicial proceedings is the same
as the purpose of the sovereign immunity enjoyed by the
state. . . . As a result, courts have recognized absolute
immunity as a defense in certain retaliatory civil actions
in order to remove this disincentive and thus encourage
citizens to come forward with complaints or to testify.’’
(Internal quotation marks omitted.) MacDermid, Inc.
v. Leonetti, supra, 310 Conn. 627–28.
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 inflic-
tion 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, 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. Specifi-
cally, 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 con-
siderations support applying absolute immunity to any
particular cause of action:3 (1) whether the alleged con-
duct subverts the underlying purpose of a judicial pro-
ceeding in a similar way to how conduct constituting
abuse of process and vexatious litigation subverts that
underlying purpose; (2) whether the alleged conduct is
similar in essential respects to defamatory statements,
inasmuch as the privilege bars a defamation action; and
(3) whether the alleged conduct may be adequately
addressed by other available remedies. Id., 545. Assisting
in our evaluation of these factors, to the extent applica-
ble, we have considered as persuasive whether federal
courts have protected the alleged conduct pursuant to
the litigation privilege. See id., 545–46. These factors
and considerations, however, are ‘‘simply instructive,’’ and
courts must focus on ‘‘the issues relevant to the compet-
ing interests in each case’’ in light of the ‘‘particular
context’’ of the case.4 (Internal quotation marks omit-
ted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn.
630–31. We are not required to rely exclusively or
entirely on these factors, but, instead, they are useful
when undertaking a careful balancing of all competing
public policies implicated by the specific claim at issue
and determining whether affording parties this com-
mon-law immunity from this common-law action is war-
ranted.
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. Trav-
elers 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 partici-
pation 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.) MacDer-
mid, 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 cove-
nant 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 interrog-
atories and discovery requests. As a result, the defendant
‘‘used intentional misstatements, intentional misrepre-
sentations, intentionally deceptive answers, and vio-
lated 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 frus-
trate [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) deceit-
fully 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 pro-
cess, 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 apply-
ing 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 judicial system itself.’’ MacDermid,
Inc. v. Leonetti, supra, 310 Conn. 629. ‘‘[W]e have refused
to apply absolute immunity to causes of action alleging
the improper use of the judicial system’’ but have applied
immunity to claims premised on factual allegations that
challenge the defendant’s conduct in a properly brought
judicial proceeding when the cause of action does not
require the plaintiff to challenge either the purpose of
the underlying litigation or the purpose of a particular
judicial procedure. Id. The former involves the improper
use of the courts ‘‘to accomplish a purpose for which
[they were] not designed’’ and is not protected by the
litigation privilege. (Internal quotation marks omitted.)
Simms v. Seaman, supra, 308 Conn. 546. The latter
does not involve consideration of whether the purpose
underlying the litigation was improper and, thus, is enti-
tled to absolute immunity, even if the plaintiff alleges
that the defendant’s conduct constituted an improper
use of the courts. Id., 546–47. That is to say, it is not
enough for the plaintiff to allege that the misconduct
at issue constituted an improper use of the judicial
system, but, rather, the cause of action itself must chal-
lenge the purpose of the underlying litigation or litiga-
tion conduct. See Tyler v. Tatoian, supra, 164 Conn.
App. 93. Additionally, even if the allegations in the com-
plaint are sufficient to support a claim for vexatious
litigation or abuse of process but such claims are not
raised, these allegations do not remove immunity from
a claim that falls within the scope of the litigation privi-
lege. See Perugini v. Giuliano, 148 Conn. App. 861,
873–74, 89 A.3d 358 (2014).
Thus, in determining whether the plaintiff’s claim
challenges the purpose of an underlying judicial pro-
ceeding, 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 chal-
lenges 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 pro-
ceeding, 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 General Statutes § 31-290a, which
prohibits retaliation against employees for exercising
their rights under the Workers’ Compensation Act (act),
General Statutes § 31-275 et seq. We emphasized in
MacDermid, Inc., that, like claims for vexatious litiga-
tion and abuse of process, which explicitly hold an
individual liable for the use of the judicial process for
an illegitimate purpose, ‘‘§ 31-290a is designed to pre-
vent, or hold the employer liable for, the improper use
of the judicial process for the illegitimate purpose of
retaliating against an employee for his exercise of his
rights under the act. The illegitimate use of litigation
in such a retaliatory manner subverts the purpose of
the judicial system and, as a matter of public policy,
we will not encourage such conduct by affording it
the protection of absolute immunity.’’ Id. The plaintiff’s
claim in the present case for breach of the covenant of
good faith and fair dealing is distinguishable from the
claim raised in MacDermid, Inc., in that it is not
designed to hold an individual liable for the improper
use of the judicial system but, rather, is designed to hold
an individual liable for improper conduct in fulfilling
contractual obligations.
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 liti-
gation 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 chal-
lenge 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 unfair-
ness 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 vexa-
tious litigation claim. In considering the plaintiff’s argu-
ments, 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 so, we looked at whether the plain-
tiff’s fraud claim was premised on communication of
a false statement, like a defamation claim; see Simms
v. Seaman, supra, 308 Conn. 548; whether embedded
in a fraud claim is a balancing test with stringent safe-
guards that protect against inappropriate retaliatory liti-
gation while incentivizing the reporting of wrongdoing,
like a vexatious litigation claim; id., 549; whether, like
a defamation claim, the fraud claim in Simms was easy
to allege but difficult to prove; id.; and whether, like
defamation claims, not recognizing the litigation privi-
lege for such actions would open the floodgates to a
wave of litigation. Id., 568. In Simms, after considering
these arguments, we came down firmly on the side of
applying the litigation privilege to a fraud claim against
an attorney. See id., 568–69. We conclude similarly in
the present case that the plaintiff’s claim for breach of
the implied covenant of good faith and fair dealing has
more in common with a defamation claim than with
an abuse of process, vexatious litigation, or malicious
prosecution claim, therefore militating in favor of applying
the privilege.
The plaintiff’s claim for breach of the implied cove-
nant of good faith and fair dealing, like a defamation
claim, is premised on the communication of false state-
ments during litigation. See footnote 6 of this opinion.
Although the elements of the plaintiff’s claim do not
specifically mention communications; see part I 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 attor-
ney.’’9 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, inten-
tional 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 docu-
ments 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 process
is to function.’’ DeLaurentis v. New Haven, 220 Conn.
225, 264, 597 A.2d 807 (1991). It is well established that
‘‘[t]he privilege extends to pleadings and other papers
made a part of a judicial or quasi-judicial proceeding,’’
as long as the statements relate sufficiently to issues
involved in a proposed or ongoing judicial proceeding;
(internal quotation marks omitted) Hopkins v. O’Con-
nor, 282 Conn. 821, 833, 925 A.2d 1030 (2007); with the
test for relevancy described as ‘‘generous . . . .’’ Id.,
839. This is true even if the communications are false,
extreme, outrageous, or malicious. See id., 838–39; Pet-
yan v. Ellis, 200 Conn. 243, 254–55, 510 A.2d 1337 (1986).
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 communi-
cations, regardless of how the defendant went about
making those false communications. For example,
immunity would apply if either (1) the defendant’s attor-
neys 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 plead-
ings 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 (‘‘The privilege applies . . . to state-
ments made in pleadings or other documents prepared
in connection with a court proceeding. . . . That abso-
lute privilege applies regardless of whether the repre-
sentations 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 com-
munications 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 dispo-
sition’’); id., 832 (‘‘[t]he scope of privileged communica-
tion extends not merely to those made directly to a
tribunal, but also to those preparatory communications
that may be directed to the goal of the proceeding’’);
Kenneson v. Eggert, 196 Conn. App. 773, 783, 230 A.3d
795 (2020) (‘‘[t]here is no requirement under Connecti-
cut jurisprudence that to be considered part of a judicial
proceeding, statements must be made in a courtroom
or under oath or be contained in a pleading or other
documents submitted to the court’’). The plaintiff’s
claim therefore remains premised on the defendant’s
communications during and relevant to a judicial pro-
ceeding.
Our Appellate Court has relied on a similar rationale
in applying the litigation privilege to a claim for negli-
gent 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 wit-
nesses, 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 ‘‘com-
munications made within the context of a judicial pro-
ceeding,’’ even though the false communications were
the result of an alleged conspiracy to withhold informa-
tion. 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 omit-
ted)); Hopkins v. O’Connor, supra, 282 Conn. 838 (if
‘‘the communications are uttered or published in the
course of judicial proceedings, even if they are pub-
lished falsely and maliciously, they nevertheless are
absolutely privileged provided they are pertinent to the
subject of the controversy’’). Thus, the plaintiff’s claim
is premised on false communications like a claim for
defamation or fraud.
Additionally, unlike the elements of a claim for vexa-
tious 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 bring-
ing 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 argu-
ment 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 con-
structive 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 mis-
take 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 demon-
strates 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 like-
wise extends to claims of breach of the implied cove-
nant 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 statement. See Simms v. Seaman, supra, 548.
Additionally, the fact that the plaintiff’s claim involves
dishonesty does not make it akin to a claim of vexatious
litigation. As we explained, the nature of the communi-
cations, even if dishonest, false, or malicious, does not
affect the applicability of the privilege.
Additionally, the elements of the plaintiff’s claim do
not include safeguards such as those found in a vexa-
tious litigation claim: for example, that the prior action
was brought without probable cause or that it termi-
nated in the plaintiff’s favor. The plaintiff does not dis-
pute this. Rather, she argues that she alleged sufficient
facts to satisfy the stringent vexatious litigation ele-
ments, and, thus, as alleged, her claim is equivalent
to a claim for vexatious litigation, including all of its
safeguards. 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 suffi-
cient 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 litiga-
tion.12
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 allega-
tions or denials in the course of litigation, as evidenced
by § 52-99 and case law granting courts the inherent
power to sanction parties for litigation misconduct. It
is not clear whether the plaintiff is arguing that § 52-
99 and our existing case law abrogate the litigation
privilege in relation to knowingly false communications
or that § 52-99 and our existing case law manifest a public
policy against immunity under these circumstances.
To the extent the plaintiff is attempting to argue that
§ 52-99 abrogates the common-law absolute immunity
afforded for knowingly false communications made dur-
ing and relevant to judicial proceedings, we disagree.
Section 52-99 provides in relevant part: ‘‘Any allegation
or denial made without reasonable cause and found
untrue shall subject the party pleading the same to the
payment of such reasonable expenses, to be taxed by
the court, as may have been necessarily incurred by
the other party by reason of such untrue pleading . . . .’’
‘‘In determining whether . . . a statute abrogates or
modifies a [common-law] rule the construction must
be strict, and the operation of a statute in derogation
of the common law is to be limited to matters clearly
brought within its scope. . . . Although the legislature
may eliminate a [common-law] right by statute, the pre-
sumption that the legislature does not have such a pur-
pose can be overcome only if the legislative intent is
clearly and plainly expressed.’’ (Internal quotation
marks omitted.) Hopkins v. O’Connor, supra, 282 Conn.
843. Section 52-99 contains no such clear and plain
expression.
To the extent the plaintiff is arguing that public policy
disfavors immunity under these circumstances, we dis-
agree. If anything, as discussed more in part II C of this
opinion, § 52-99 demonstrates that other remedies exist
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 rele-
vant 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 litiga-
tion 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, ren-
der § 52-99 useless because parties may seek sanctions
for litigation misconduct under this statute. Our holding
means only that this statute does not support the plain-
tiff’s bringing of a private right of action premised on
this conduct. For this reason, there is no merit to the
plaintiff’s argument that, because § 52-99 and the court’s
inherent authority authorize the court to sanction par-
ties for litigation misconduct, the court retains subject
matter jurisdiction over these claims despite the litiga-
tion privilege. The lack of jurisdiction over the present
claim did not prevent the parties from pursuing sanc-
tions under § 52-99 or the court’s inherent authority.
The plaintiff also fails to recognize that, unlike § 52-
99, the purpose of the litigation privilege is not to pro-
hibit dishonesty but to protect against retaliatory claims
that are easily alleged but difficult to prove, like claims
premised on dishonesty. See, e.g., Simms v. Seaman,
supra, 308 Conn. 539–40, 549. Like a claim of fraud or
defamation, which, likewise, involves dishonesty and
false communications, it is easy to allege, but more
difficult to prove, that a defendant intentionally made
misrepresentations and advanced false allegations in
pleadings. Although there is some evidence in the pres-
ent case that the defendant had no basis to assert the
special defense of contributory negligence, this kind of
evidence—what a party knew and when—is difficult to
prove. Withholding immunity as to the claim at issue
has the potential to open the floodgates to retaliatory
actions every time a plaintiff prevails in an underlying
action in which the defendant raised an unsuccessful
special defense or made an allegation in a pleading that
was at odds with the verdict.
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 ‘‘jurisdic-
tional’’ 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 individu-
als from ‘‘incurring the costs and inconvenience associ-
ated 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, § 52-99
allows parties to seek monetary sanctions from the
trial court for allegations and denials within parties’
pleadings made without reasonable cause and found
to be untrue. Second, the trial court has the inherent
authority to sanction parties for litigation misconduct.
See, e.g., Maris v. McGrath, 269 Conn. 834, 846–48, 850
A.2d 133 (2004); see also DeLaurentis v. New Haven,
supra, 220 Conn. 264 (‘‘[w]hile no civil remedies can
guard against lies . . . [p]arties or their counsel who
behave outrageously are subject to punishment for con-
tempt of the court’’ (footnote omitted)); Jaconski v.
AMF, Inc., 208 Conn. 230, 233, 543 A.2d 728 (1988) (‘‘[a]
trial court has the inherent power to provide for the
imposition of reasonable sanctions, to compel the
observance of its rules’’). Further, as we noted in
Simms, a party may file a motion to open a judgment
on the ground that the judgment was obtained by fraud
or intentional, material misrepresentation. See Simms
v. Seaman, supra, 308 Conn. 552. In addition, as we
noted in DeLaurentis, ‘‘[p]arties and their counsel who
abuse the process by bringing unfounded actions for
personal motives are subject to civil liability for vexa-
tious suit or abuse of process.’’ DeLaurentis v. New
Haven, supra, 264. Importantly, in the present case,
upon a prior action terminating in her favor, the plaintiff
could have brought a lawsuit for vexatious litigation.
In fact, that is what she did. These other remedies belie
the plaintiff’s argument that, if immunity is granted, this
court will open the floodgates to insurance companies
using the litigation privilege as a loophole to engage in
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. Con-
necticut 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 abso-
lute 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 sup-
port 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 pro-
ceeding, 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 emo-
tional 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 alle-
gations 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, this business practice violates
CUIPA in that the defendant (1) misrepresented facts,
(2) failed to adopt and implement reasonable standards
for the prompt investigation of claims, (3) refused to pay
claims without conducting reasonable investigation, (4)
did not attempt in good faith to effectuate prompt, fair,
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,
[General Statutes] § 42-110g (a) of [CUTPA] establishes
a private cause of action, available to [a]ny person who
suffers any ascertainable loss of money or property,
real or personal, as a result of the use or employment
of a method, act or practice prohibited by [General
Statutes §] 42-110b . . . . CUIPA, which specifically
prohibits unfair business practices in the insurance
industry and defines what constitutes such practices in
that industry; see General Statutes § 38a-816; does not
authorize a private right of action but, instead, empow-
ers the [insurance] commissioner to enforce its provi-
sions through administrative action. See General
Statutes §§ 38a-817 and 38a-818. . . . [T]his court
[however, has] determined that individuals may bring
an action under CUTPA for violations of CUIPA. In
order to sustain a CUIPA cause of action under CUTPA,
a plaintiff must allege conduct that is proscribed by
CUIPA.’’ (Citation omitted; internal quotation marks
omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins.
Co., 317 Conn. 602, 623–24, 119 A.3d 1139 (2015).
Relevant to the present claim, CUIPA prohibits unfair
claim settlement practices, which the legislature has
defined as ‘‘[c]ommitting or performing with such fre-
quency 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 reason-
able 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.) General Stat-
utes § 38a-816 (6). To establish that the improper con-
duct occurred with ‘‘such frequency as to indicate a
general business practice’’; (emphasis added) General
Statutes § 38a-816 (6); the plaintiff must allege and
establish more than a single act of insurance miscon-
duct. See, e.g., State v. Acordia, Inc., 310 Conn. 1, 28,
73 A.3d 711 (2013) (‘‘CUIPA requires ‘a showing of more
than a single act of insurance misconduct’ ’’).
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 allega-
tion 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 conduct was not
premised on false communications during and related
to judicial proceedings but constituted unfair conduct
that CUIPA and CUTPA were specifically designed to
protect against.
If the plaintiff’s complaint actually contained such alle-
gations of a general business practice, perhaps this might
have been a closer case. But we have scoured the plain-
tiff’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 prac-
tice, despite the trial court’s having permitted the plain-
tiff 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 allega-
tions regarding this conduct are limited to the defen-
dant’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 con-
duct 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 immu-
nity 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. General
Statutes § 38a-816 (6) (A). The parties have not cited
any case law—from this court, the federal courts, or
sister state courts—that has addressed whether the liti-
gation privilege applies to claims for violating statutes
prohibiting unfair insurance practices. In our own
research, we have found only one case addressing this
issue. The United States District Court for the Eastern
District of Pennsylvania, in Harrison v. Nationwide
Mutual Fire Ins. Co., 580 F. Supp. 133, 136 (E.D. Pa.
1983), and its progeny, held that, when an unfair insur-
ance practices claim is premised on pleadings or docu-
ments filed in and relevant to an underlying judicial
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 hold insurers accountable for misrepresenting
facts relating to coverage issues. In essence, the plaintiff
argues that CUIPA abrogates absolute immunity as to
the conduct alleged under § 38a-816 (6). Contrary to the
plaintiff’s argument, CUIPA does not explicitly abrogate
absolute immunity. Although § 38a-816 (6) in fact pro-
hibits the business practice of misrepresenting facts
relating to coverage issues, CUIPA does not impose
liability for this conduct by authorizing a private right
of action but, instead, limits the remedy under that
act to administrative action by the Commissioner of
Insurance. Rather than establishing that immunity
should be abrogated, § 38a-816 shows that the legisla-
ture prescribed remedies other than civil liability for
deterring and curing the alleged conduct, and such rem-
edies are available to the plaintiff in the present case.
Additionally, the legislature is aware of both this court’s
precedent regarding the applicability of the litigation
privilege to litigation conduct, as well as the various
other tools available to the court to regulate and police
litigation misconduct. See, e.g., Chadha v. Charlotte
Hungerford Hospital, supra, 272 Conn. 793 n.21 (‘‘the
legislature is presumed to be aware of prior judicial
decisions involving common-law rules’’). If the legisla-
ture thought that the particular litigation conduct at
issue—filing false discovery responses—had become
such a systemic problem that neither the judiciary nor
the Commissioner of Insurance has been able to police
it, the legislature would have been explicit in abrogating
the immunity afforded by the litigation privilege.
Nevertheless, our case law makes clear that an insurer
may be held liable under CUTPA for conduct proscribed
by § 38a-816 (6). See Mead v. Burns, 199 Conn. 651,
663, 509 A.2d 11 (1986) (‘‘it is possible to state a cause
of action under CUTPA for a violation of CUIPA’’). That
does not necessarily mean that the legislature intended
to abrogate a party’s absolute immunity from CUTPA
claims based on a business practice of filing false dis-
covery responses. Although there is minimal case law
regarding CUIPA and the litigation privilege, there is a
wealth of case law regarding CUTPA and the litigation
privilege. Courts consistently have applied the litigation
privilege to CUTPA claims premised on false communi-
cations made during and relevant to an underlying judi-
cial proceeding. See, e.g., Simms v. Seaman, supra, 308
Conn. 561–62 (discussing federal case law that consis-
tently has held that CUTPA claims premised on false
communications made during and relevant to underly-
ing judicial proceeding are barred by litigation privi-
lege); Bruno v. Travelers Cos., supra, 172 Conn. App.
722, 727–29 (CUTPA claim against insurance companies
was barred by litigation privilege); Tyler v. Tatoian,
supra, 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 prac-
tices brought pursuant to the jurisdiction’s analogue to
CUTPA. See, e.g., Graham v. U.S. Bank, National Assn.,
Docket 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., Docket 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 statements made in the course of litiga-
tion’’). But see Barefield v. DPIC Cos., 215 W. Va. 544,
554, 600 S.E.2d 256 (2004) (‘‘insurance company’s prose-
cution of a meritless appeal could be used to support
a claim for unfair trade practices’’ (internal quotation
marks omitted)).
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 busi-
ness practice of filing false discovery responses—is
afforded absolute immunity. We recognize that the leg-
islature intended to prohibit certain unfair and decep-
tive business practices by enacting CUTPA and CUIPA,
but the plaintiff has not cited, and we have not discov-
ered, any provision of these statutes that explicitly abro-
gates the common-law litigation privilege, which,
historically, has been applied to false and malicious
statements made during and relevant to judicial pro-
ceedings. 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 privilege bars the plaintiff’s
CUTPA-CUIPA claim.
The judgment is affirmed.
In this opinion ROBINSON, C. J., and McDONALD
and KELLER, Js., concurred.
1
In the original complaint, the plaintiff also raised a claim of negligence
against Smith but later withdrew it after she settled with Smith for his policy
limits. Thus, Liberty Mutual Fire Insurance Company was the only remaining
defendant at the time it moved to dismiss the claims at issue—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.
Therefore, we refer to Liberty Mutual Fire Insurance Company as the
defendant.
2
In Scholz, we explained that ‘‘[t]hree rationales have been articulated in
support of the absolute privilege. [Simms v. Seaman, supra, 308 Conn.] 535.
The most important is that the privilege protects the rights of clients who
should not be imperiled by subjecting their legal advisors to the constant
fear of lawsuits arising out of their conduct in the course of legal representa-
tion. . . . Id. [Second, by] affording absolute immunity to those who provide
information in connection with judicial and quasi-judicial proceedings [we
have recognized] that in certain situations the public interest in having
people speak freely outweighs the risk that individuals will occasionally
abuse the privilege by making false and malicious statements. . . . Id.,
539. Additionally, the privilege protects access to the courts inasmuch as
retaliatory lawsuits [that might] cause the removal of [an] adversary’s coun-
sel would compromise the judicial process, and there exist other remedies,
such as the court’s contempt powers . . . . Id., 535–36.’’ (Internal quotation
marks omitted.) Scholz v. Epstein, supra, 341 Conn. 10.
3
These factors, to the extent relevant, apply regardless of whether the
action is against an attorney, party opponent, or witness. See MacDermid,
Inc. v. Leonetti, supra, 310 Conn. 630–31.
4
For example, in MacDermid, Inc. v. Leonetti, supra, 310 Conn. 630–31,
this court held that absolute immunity did not bar a claim of employer
retaliation. In MacDermid, Inc., the plaintiff employer filed an underlying
action for civil theft, fraud, unjust enrichment, and conversion, premised
on the defendant employee’s conduct in relation to the employee’s workers’
compensation claim. See id., 622. The defendant employee then filed a
counterclaim, alleging that the plaintiff employer violated General Statutes
§ 31-290a by initiating the underlying action solely in retaliation for his
exercise of his rights under the Workers’ Compensation Act, General Statutes
§ 31-275 et seq. Id. The plaintiff subsequently moved to dismiss the defen-
dant’s counterclaim, arguing that the court lacked subject matter jurisdiction
over that claim because the doctrine of absolute immunity protects the act
of filing an action. Id. In holding that the litigation privilege did not apply
to a claim alleging a violation of § 31-290a, we noted that the claim did not
include the same stringent requirements and balancing of interests as does
a claim of vexatious litigation. Id., 632–33. Nevertheless, we determined
that the public policy underlying § 31-290a was similar to the public policy
underlying a claim of vexatious litigation. See id., 631, 635; see also part II
A of this opinion. Additionally, we relied heavily on the fact that, not only
would barring immunity not open the floodgates to retaliatory claims against
employers, but providing immunity actually would deter employees from
exercising their rights under the act. See id., 625 n.7, 635–36.
5
The parties do not dispute that the doctrine of absolute immunity impli-
cates the trial court’s subject matter jurisdiction. The plaintiff, however,
argues that, even if absolute immunity applies in the present case, the court
retained jurisdiction because it had statutory authority pursuant to § 52-99
and inherent authority to sanction parties for litigation misconduct. See
Maris v. McGrath, 269 Conn. 834, 848, 850 A.2d 133 (2004). We discuss this
argument in part II C of this opinion.
6
The litigation privilege does not apply to conduct not made in the course
of a judicial proceeding. See, e.g., Fiondella v. Meriden, 186 Conn. App.
552, 563, 200 A.3d 196 (2018), cert. denied, 330 Conn. 961, 199 A.3d 20 (2019).
As the master of her complaint, the plaintiff never argued to the trial court—
and has not argued before this court—that she premised any of her claims
on conduct that occurred outside the course of a judicial proceeding. Rather,
she consistently has argued that, during the underlying litigation, the defen-
dant made recovery as difficult as possible and improperly used the courts
to avoid paying her the full amount of benefits owed.
7
‘‘To establish a prima facie case of defamation, the plaintiff must demon-
strate that: (1) the defendant published a defamatory statement; (2) the
defamatory statement identified the plaintiff to a third person; (3) the defam-
atory statement was published to a third person; and (4) the plaintiff’s
reputation suffered injury as a result of the statement.’’ (Internal quotation
marks omitted.) Simms v. Seaman, supra, 308 Conn. 547–48.
8
‘‘Vexatious litigation requires a plaintiff to establish that: (1) the previous
lawsuit or action was initiated or procured by the defendant against the
plaintiff; (2) the defendant acted with malice, primarily for a purpose other
than that of bringing an offender to justice; (3) the defendant acted without
probable cause; and (4) the proceeding terminated in the plaintiff’s favor.’’
Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007).
9
As discussed in part II A of this opinion, the fact that the plaintiff alleged
that the conduct at issue constituted an abuse of the judicial system does
not make the claim at issue akin to a claim for abuse of process. Rather,
we look to the plaintiff’s factual allegations to determine whether the plain-
tiff’s claim is premised on the communication of false statements. See Simms
v. Seaman, supra, 308 Conn. 548; see also Bruno v. Travelers Cos., supra,
172 Conn. App. 728.
10
By contrast, the plaintiff argues that her claim is more analogous to the
claim raised in Fiondella v. Meriden, 186 Conn. App. 552, 555, 200 A.3d 196(2018), cert. denied, 330 Conn. 961, 199 A.3d 20 (2019), because both alleged
intentional concealment and deceitful conduct. We disagree. In Fiondella,
the defendants successfully brought an action seeking a declaratory judg-
ment that they were the legal owners of a portion of land by operation of
the doctrine of adverse possession. Id. The plaintiffs in Fiondella, who were
not parties in the underlying declaratory judgment action, subsequently
brought claims of fraud, slander of title, and civil conspiracy against the
defendants, alleging that the defendants intentionally concealed the declara-
tory judgment action from them, contrary to their property rights and inter-
ests. Id., 559–60. The defendants filed a motion to dismiss on the ground
of absolute privilege, which the trial court granted. Id., 556. The Appellate
Court reversed the trial court’s judgment, holding that absolute immunity
did not apply to bar the plaintiffs’ claims. In so holding, the Appellate Court
relied on the following facts: (1) the plaintiffs were not parties to or involved
in the underlying declaratory judgment action; (2) the claims were solely
premised on conduct, not communications; and (3) the alleged fraud did
not occur during the pendency of a judicial proceeding between these parties.
See id., 561–62. The Appellate Court emphasized that ‘‘ ‘[the privilege]
extends to bar claims of fraud against a party opponent.’ ’’ Id., 562. The
present case clearly involves alleged dishonesty of a party opponent. Addi-
tionally, as discussed, the plaintiff’s claim is not premised solely on conduct
but on false communications.
11
We note that a lack of stringent policy balancing safeguards is not
detrimental to a plaintiff’s claim that the litigation privilege does not apply.
See footnote 5 of this opinion. For example, claims of employer retaliation
under § 31-290a and abuse of process do not have these safeguards, but
this court has barred the application of the litigation privilege to those
claims because of other policy considerations. See, e.g., MacDermid, Inc.
v. Leonetti, supra, 310 Conn. 633 (‘‘the elements of abuse of process, a tort
which also falls outside the scope of absolute immunity, are less stringent
than the elements of vexatious litigation’’). The plaintiff’s claim is distinguish-
able from claims of abuse of process and employer retaliation, however,
because the plaintiff has not suggested any policy considerations that weigh
in favor of barring the litigation privilege.
12
By arguing that her claim is equivalent to a claim of vexatious litigation,
the plaintiff appears also to be arguing that she did in fact sufficiently allege
a vexatious litigation claim and that this court should not be bound by how
she labeled the counts in her complaint. We are not persuaded. Although
it is true that, for purposes of a motion to strike, our trial courts consistently
have relied on the factual allegations of a count, and not the label placed
on the count, in determining whether a claim has been sufficiently alleged;
see, e.g., Penney v. Holley, Docket No. CV-XX-XXXXXXX-S, 2015 WL 1587981,
*2 (Conn. Super. March 13, 2015); the plaintiff’s complaint cannot reasonably
be interpreted as raising a vexatious litigation claim, especially as, during
argument on the motion to dismiss, the plaintiff never argued that she was
raising a vexatious litigation claim but, rather, argued only that the claims
were similar to a vexatious litigation claim.
13
The parties have not cited any case law from federal or state courts
concerning the application of the litigation privilege to a similar claim.
14
The elements of the tort of negligent infliction of emotional distress
are: ‘‘(1) the defendant’s conduct created an unreasonable risk of causing
the plaintiff emotional distress; (2) the plaintiff’s distress was foreseeable;
(3) the emotional distress was severe enough that it might result in illness or
bodily harm; and (4) the defendant’s conduct was the cause of the plaintiff’s
distress.’’ Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
15
At the time of the defendant’s motion to dismiss, the complaint also
alleged that the defendant’s representative ‘‘testified under oath 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 . . . .’’ The trial court
held that absolute immunity did not bar this portion of the plaintiff’s CUTPA
claim. Because the plaintiff has since withdrawn this portion of the claim,
we do not consider it in our analysis.
16
By contrast, in her second amended complaint, the plaintiff set forth
more detailed allegations regarding how the defendant had a business prac-
tice of conditioning receipt of underinsured motorist benefits on the provi-
sion of an affidavit of no excess insurance. Specifically, in addition to alleging
that the defendant ‘‘did not single out [her] for special or unique treatment,’’
the plaintiff alleged that, in not doing so, the defendant was ‘‘pursuing
conduct that [the defendant] routinely takes in its handling of claims from
other policyholders as well.’’
17
The defendant never filed a motion to strike or argued in the alternative
that the plaintiff alleged insufficient frequency to establish a business prac-
tice in regard to her allegation that the defendant ‘‘did not single [her] out
. . . for special or unique treatment when it responded falsely to [her]
discovery requests.’’ Accordingly, we do not address this issue.
18
The concurrence and dissent argues that these other remedies are insuf-
ficient, especially in light of the unique nature of insurance companies,
which ‘‘are effectively in the business of litigation.’’ First, it is worth noting
that this court consistently has applied the litigation privilege to attorneys,
who, without a doubt, are in the business of litigation. See Simms v. Seaman,
supra, 308 Conn. 540–45; see also Imbler v. Pachtman, 424 U.S. 409, 424–29,
96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). Moreover, by enacting CUIPA, the
legislature has taken explicit action to regulate insurance companies, includ-
ing by authorizing the Commissioner of Insurance to take administrative
action in response to the conduct alleged while not explicitly creating a
private right of action. Thus, we are hard-pressed to conclude that the
unique status of insurance companies requires, as a matter of public policy,
exempting them from the litigation privilege under these circumstances.