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By: Edward Storck
The recent decision in Tamara Dorfman v. Joscelyn Smith, et al, 342 Conn. 582, 271 A.3d 53 (March 29, 2022), addressed whether an insurer’s alleged conduct during litigation could form the basis of a “bad faith” finding in the handling of an underinsured motorists insurance coverage claim. The Connecticut Supreme Court upheld the lower court’s granting of a Motion to Dismiss which cited the litigation privilege and the absolute immunity afforded to the defendant insurer as its basis for dismissing the claims of breach of the covenant of good faith and fair dealing, negligent infliction of emotional distress, and violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. §42-110a, et seq., premised on a Connecticut Unfair Insurance Practices Act (“CUIPA”), Conn. Gen. Stat. § 38a-315, et seq., violation. The plaintiff alleged insurer misconduct in allegedly withholding claim information during discovery and falsely responding to the Complaint.
The underlying lawsuit involved a rear-end motor vehicle accident between Plaintiff Dorfman and another party. The insurer was initially sued for underinsured motorist benefits on a breach of contract theory. During discovery, the insurer had claim notes, not shared with its counsel, indicating the tortfeasor was 100% responsible for the accident and that the insurer took the statement of a witness confirming that liability. Without this information, the attorney answered the Complaint denying knowledge sufficient to form an opinion as to liability and responded in discovery that the insurer had no knowledge of any witnesses to the accident. The plaintiff then deposed the insurer’s corporate designee, who testified that the responses to discovery and the Complaint were incorrect, and that the information was intentionally withheld.
In its decision, the court noted a lack of precedent as to the application of the litigation privilege to the conduct of an insurance company as alleged in the Complaint. The court rejected the plaintiff’s claim that the actions of the insurance company were akin to a vexatious litigation claim premised on a claim of abuse of process. Instead, noted the court, the allegations against the insurance company were similar to a claim for fraud and misrepresentation, which is protected by the litigation privilege. The court held that the fact that these communications were with the insurance company’s attorneys, with the alleged intent that the attorneys would file untrue pleadings and discovery responses, did not change the outcome.
With respect to the alleged CUIPA violation that formed the basis for the CUTPA claim, the court found no allegations that the alleged conduct constituted a general business practice which would have been enough to dismiss the claim. However, the court noted that CUIPA did not specifically abrogate absolute immunity and that the legislature could have specifically written the act that way if it intended to do so. The court also found that CUIPA allows for alternative remedies (not sought by the plaintiff) to address and disincentivize the alleged misconduct during the course of litigation and, therefore, does not violate public policy.