Dorfman v. Smith

Tamara DORFMAN v. Joscelyn M. SMITH et al.

No. HHDCV156062649S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

June 11, 2019

UNPUBLISHED OPINION

OPINION

CESAR A. NOBLE, J.

The issue presented by the motion to dismiss before the court is whether the extra-contractual claims of the plaintiff are within the scope of the absolute immunity afforded litigants for communications made in the course of judicial proceedings. For the following reasons the court dismisses counts three, four and portions of five.

This action seeking damages for injuries sustained as a result of a motor vehicle accident was brought on September 29, 2015 by the plaintiff, Tamara Dorfman (plaintiff), who alleged in her complaint that on September 27, 2014, she suffered injuries as a result of the negligence of a Joscelyn Smith (tortfeasor). The plaintiff asserted in her complaint that the tortfeasor’s vehicle traveled through a stop sign striking the plaintiff’s car. Thereafter, the plaintiff successfully moved to add the defendant, Liberty Mutual Fire Insurance Company ("Liberty Mutual") as a party defendant for purposes of asserting claims for breach of contract/underinsured motorist coverage (UIM) (second count) breach of the implied covenant of good faith (count three) negligent infliction of emotional distress (count four) and a violation of CUTPA/CUIPA (count five).

The amended complaint contained the following allegations. Liberty Mutual investigated the accident and concluded that its insured, the tortfeasor was 100% at fault. Thereafter a Liberty Mutual employee demanded an affidavit of no insurance although such is prohibited by General Statutes § 38a-336c(c).^[1] After the suit was filed, Liberty Mutual withheld from its counsel its file notes, the conclusions of its employees regarding liability, the names of independent witnesses and the existence of statements from independent witness, ¶34. The plaintiff alleged that counsel retained by Liberty Mutual filed an inaccurate answer to the complaint. The inaccuracies were alleged to have been in the pleading of insufficient knowledge or information to admit or deny certain portions of the factual allegations, ¶36 and the pleading of a special defense of comparative negligence on the part of the plaintiff, ¶37. The plaintiff claims the pleadings were in violation of General Statutes § 52-99 by virtue of having been made without reasonable cause and ultimately found to be untrue.^[2] The complaint further provides that Liberty Mutual’s discovery responses contained false and misleading statements in that they failed to identify a known witness and to provide the witness’ statement.

In count three the plaintiff alleges that by this conduct Liberty Mutual "knowingly and intentionally engaged in dishonest and sinister litigation practices by taking legal positions that were without factual support in order to further frustrate Ms. Dorfman’s ability to receive benefits due Ms. Dorfman under her contract"; (emphasis added) ¶45; thereby breaching its duty to act fairly and in good faith. (Emphasis added.) The plaintiff asserts in count four that this conduct constituted a negligent infliction of emotional distress. Count five alleges that Liberty Mutual’s demand for an affidavit of no excess insurance and its false discovery responses were part of a general business practices, applicable to other policy holders as well, that violate the Connecticut Unfair Insurance Practices Act General Statutes § 38a-816, triggering a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42a-110 et seq.

Thereafter the plaintiff settled with the tortfeasor for his policy limits of $50, 000 and withdrew the action against him on January 22, 2016. The court bifurcated the trial of the UIM claim from the extra-contractual claims in counts three through five. After trial, in which Liberty Mutual admitted liability, the plaintiff received a verdict in the amount of $169, 928, a sum within the plaintiff’s UIM policy limits of $250, 000. The present motion followed.

The motion to dismiss the remaining counts asserts that the court is without subject matter jurisdiction over the claims asserted in counts three through five because the doctrine of absolute immunity, which protects a party from suit for communications made in the course of judicial proceedings, is applicable. In the view of Liberty Mutual the doctrine applies because the counts implicate only communications made by it in the course of litigation. The plaintiff objection to the motion to dismiss dated February 8, 2019, Entry No. 329, asserts that public policy as found in case law and statutes supports the basis for jurisdiction. Moreover, in the plaintiff’s view the allegations of her complaint implicate conduct rather than communications.

"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). However, "[i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2015). The present motion is based solely on the allegations of the plaintiff’s complaint. When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, 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.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

Absolute immunity implicates the court’s subject matter jurisdiction. Bruno v. Travelers Companies, 172 Conn.App. 717, 723, 161 A.3d 630 (2017). The doctrine bars most claims related to communications published in the course of judicial proceedings if the communications are in some way pertinent to the litigation. Tyler v. Tatoian, 164 Conn.App. 82, 88, 137 A.3d 801 (2016). "The purpose of affording absolute immunity to those who provide information in connection 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 ... 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 doctrine 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." (Citations omitted, internal, quotation marks omitted.) Simms v. Seaman, 308 Conn. 523, 539, 69 A.3d 880 (2013).

The ambit of the privilege extends to "all participants in judicial proceedings, including judges, attorneys, parties, and witnesses." MacDermid, Inc. v. Leonetti, 310 Conn. 616, 627, 79 A.3d 60 (2013). "The 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 of the proceeding ... The right of private parties to combine and make presentations to an official meeting and, as a necessary incident thereto, to prepare materials to be presented is a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings. To make such preparations and presentations effective, there must be an open channel of communication between the persons interested and the forum, unchilled by the thought of subsequent judicial action against such participants; provided always, of course, that such preliminary meetings, conduct and activities are directed toward the achievement of the objects of the litigation or other proceedings." (Citation omitted, internal quotation marks omitted.) Hopkins v. O’Connor, 282 1Conn. 821, 832, 925 A.2d 1030 (2007).

The doctrine has been applied by our appellate courts to causes of action sounding in intentional interference with contractual or beneficial relations, Rioux v. Barry, 283 Conn. 338, 343, 927 A. 304 (2007); "interference with contractual relationship; fraud; invasion of privacy abuse of process; and negligent misrepresentation." (Citations omitted, quotation marks omitted.) Simms v. Seaman, supra, 308 Conn. 566-67, and intentional infliction of emotional distress; and Connecticut Unfair Trade Practices Act claims; Tyler v. Tatoian, supra . "It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy. The effect of an absolute privilege is that damages cannot be recovered for the publication of the privileged statement even if the statement is false and malicious." Fiondella v. City of Meriden, 186 Conn.App. 552, 558, 200 A.3d 196 (2018) quoting Villages, LLC v. Longhi, 166 Conn.App. 685,...