Dorfman v. Smith

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 DORFMAN v. SMITH—CONCURRENCE AND DISSENT

ECKER, J., concurring in part and dissenting in part.
The majority concludes that the common-law litigation
privilege bars the claims of the plaintiff, Tamara Dorf-
man, against the defendant Liberty Mutual Fire Insur-
ance Company1 for breach of the implied covenant of
good faith, negligent infliction of emotional distress,
and violations of the Connecticut Unfair Trade Prac-
tices Act (CUTPA), General Statutes § 42-110a et seq.,
and the Connecticut Unfair Insurance Practices Act
(CUIPA), General Statutes § 38a-815 et seq. My dis-
agreement stems from the unique features of the pres-
ent case that distinguish it—starkly, in my view—from
any other case yet decided by this court regarding the
privilege. The litigation privilege exists to create a pro-
tected space for parties to engage in the rough-and-
tumble of litigation, uninhibited by fears that their
adversary will later file a second generation lawsuit
claiming damages for harm caused by the adversary’s
(or his lawyer’s) alleged misconduct in the first case.2
Except for a narrow category of claims involving mis-
conduct comparable to vexatious litigation or abuse of
process, the litigation privilege prevents an aggrieved
party from bringing a damages lawsuit for harm caused
by litigation misconduct and limits the party’s recourse
to whatever relief may be obtained from the judge pre-
siding over the litigation or the administrative authority
with jurisdiction over the party or lawyer responsible
for the misconduct. This judge made policy makes good
sense in the ordinary case.
The present lawsuit is nothing like the ordinary case,
however, because it arises in a unique context implicat-
ing substantially different policy considerations than
those that shaped the litigation privilege. The defendant
sells automobile liability insurance. It consequently owes
its insureds a direct contractual and statutory duty to
not act abusively in litigation. Litigation is not an
unusual or occasional activity external to the defen-
dant’s business operations but, instead, is an integral
and intrinsic part of its commercial activity—automo-
bile liability claims by their very nature are adjusted,
contested and/or paid either in the shadow of litigation
or in actual litigation. This fact distinguishes the defen-
dant from nearly all other litigants who might claim
protection under the litigation privilege. Indeed, Con-
necticut statutory law recognizes that insurance compa-
nies are fundamentally different from other parties
when it comes to litigation with their insureds. See
General Statutes § 38a-816 (6) (G) (listing as prohibited
unfair claim settlement practice ‘‘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’’) So, too, our common law recognizes
that an insurer owes its insured a duty of good faith
that would prohibit litigation misconduct in a first-party
action seeking payment under a policy.3
Allowing a liability insurer like the defendant to invoke
the privilege in the present case effectively confers an
entire class of commercial enterprises doing business
in Connecticut with immunity from suit by consumers
seeking damages for wrongful and illegal acts under-
taken as part of their day-to-day business practices.4
It could be argued that such a broad immunity is wise
policy in light of the competing considerations at play.
But, in my view, that conclusion is hardly self-evident,
and it certainly is not compelled or even suggested by
either our existing precedent or the few statutory tea
leaves currently available for guidance.
There are alternatives. One is to defer to the legisla-
ture regarding this complex issue of public policy; if a
broad immunity is to be extended to insurance compa-
nies in this context, it should be conferred by an affirma-
tive act of the legislature upon consideration of all
relevant policy implications, not by this court under the
rubric of the common-law litigation privilege. Another
option, developed at some length in this opinion, is
to fashion a more nuanced privilege adapted to cases
involving parties, like the defendant in the present case,
whose commercial activities involve frequent use of the
courts as an integral aspect of their business operations
and who are alleged to have breached a contractual,
common-law, or statutory duty owed to the plaintiff by
engaging in, among other things, litigation misconduct.
Indeed, our existing litigation privilege doctrine, prop-
erly applied, is well suited to the task. See parts II C
and III B of this opinion.
To summarize, the present context is miles away
from that in which the litigation privilege was originally
formulated, and lies equally distant from the cases in
which we have found the privilege applicable to date.
The plaintiff is not simply the defendant’s adversary;
she is its insured. Her lawsuit alleges that the defendant
purposely engaged in bad faith insurance claim settle-
ment practices involving both prelitigation and litiga-
tion misconduct, in violation of its statutory and
common-law duties. The pleadings do not allege merely
that the defendant has violated the rules of fair litigation
owed to one another by all parties to litigation. Rather,
the pleadings allege that the defendant insurer has vio-
lated a direct, independent contractual and statutory
duty owed specifically to the plaintiff-insured. For rea-
sons that I will elaborate on, such allegations, if suffi-
ciently pleaded, should be deemed to fall outside of the
litigation privilege under Connecticut law.
I
My concerns focus primarily on two counts of the
plaintiff’s operative complaint. With respect to the claim
for breach of the implied covenant of good faith and
fair dealing, I would hold, contrary to the majority’s con-
clusion, that the operative complaint sufficiently alleges
conduct outside of litigation that would support a bad
faith claim. Specifically, the operative complaint alleges
that the defendant insurer was contractually obligated
to pay the plaintiff sums that she was legally entitled
to recover from the owner or operator of an uninsured
or underinsured motor vehicle for damages resulting
from bodily injury, that the defendant knew that it had
no valid defense to her claim, and that the defendant
nonetheless compelled its insured to resort to litigation
and to endure litigation misconduct to obtain payment.
To the extent that the plaintiff also alleges bad faith
litigation conduct, I would conclude that the majority’s
suggestion that the litigation privilege bars all such
claims fails to adequately address the complexity of the
law governing such claims, especially as the law applies
to first-party claims by an insured against his or her
insurer. Particularly in light of the special considera-
tions that arise in the insurance context—most notably,
the asymmetry between the insured and the insurer
with respect to bargaining power and litigation experi-
ence, and the special vulnerabilities of an insured who
has suffered a covered loss—I would conclude that this
claim more closely resembles an abuse of process claim
than claims to which we have applied the litigation privi-
lege, such as defamation and fraud, and is sufficient to
survive a motion to dismiss. Accordingly, I dissent from
part II of the majority opinion.5
With respect to the plaintiff’s CUTPA claim, I agree
that her particular allegations fail to plead a general
business practice triggering a CUIPA violation. I there-
fore concur in part IV of the majority opinion. I write
separately to emphasize my view that this limited hold-
ing, based on insufficient pleading, in no way requires a
similar conclusion were a plaintiff to make more robust
allegations of litigation misconduct occurring as part of
an insurance company’s unfair claim settlement practices
under § 38a-816 (6).6 The majority accurately describes
the exceedingly weak nature of the plaintiff’s CUIPA
based allegations in the present case, acknowledging
that this could be a ‘‘closer case’’ if the plaintiff had alleged
a different CUIPA claim. Part IV of the majority opinion.
I believe that a well pleaded CUIPA/CUTPA claim alleg-
ing unfair claim settlement practices encompassing liti-
gation misconduct would present a very different case
indeed. Whatever the ultimate outcome may be when such
a case presents itself, I feel compelled to explain why we
should exercise care to make sure that our narrow holding
in the present case does not impinge on our ability to
conduct the necessary analysis at that time.
II
A
I first address part II of the majority opinion, in which
the majority concluded that the litigation privilege bars
the plaintiff’s claim for breach of the implied covenant
of good faith and fair dealing. I begin with a review of
the governing legal principles. Numerous courts have
recognized that, generally speaking, an insurer has an
obligation to its insureds that goes beyond an ordinary
contractual obligation. See, e.g., Best Place, Inc. v. Penn
America Ins. Co., 82 Haw. 120, 128, 920 P.2d 334 (1996)
(‘‘some courts have emphasized the special relationship
between insurer and insured, characterized by elements
of public interest, adhesion, and fiduciary responsibil-
ity’’ (internal quotation marks omitted)); id. (citing cases).
This ‘‘special relationship’’ arises because ‘‘[a]n insur-
ance policy is not obtained for commercial advantage;
it is obtained as protection against calamity. [Moreover]
[i]n securing the reasonable expectations of the insured
under the insurance policy there is usually an unequal
bargaining position between the insured and the insur-
ance company. . . . [Finally] the insured is [often] in
an especially vulnerable economic position when such
a casualty loss occurs.’’ (Internal quotation marks omit-
ted.) Id.; see Reynolds v. American Hardware Mutual
Ins. Co., 115 Idaho 362, 365, 766 P.2d 1243 (1988) (citing
cases from other jurisdictions); Arnold v. National
County Mutual Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.
1987) (‘‘[i]n the insurance context a special relationship
arises out of the parties’ unequal bargaining power and
the nature of insurance contracts which would allow
unscrupulous insurers to take advantage of their insureds’
misfortunes in bargaining for settlement or resolution
of claims’’); see also footnote 3 of this opinion.
Although this court has yet to speak on the precise
nature of the duty in the context of first-party (insured
versus insurer) claims,7 there can be no doubt that insur-
ance contracts impose a duty of good faith and fair
dealing on the insurer that will support an independent
cause of action. See Buckman v. People Express, Inc.,
205 Conn. 166, 170, 530 A.2d 596 (1987) (‘‘[a]n implied
covenant of good faith and fair dealing has been applied
by this court in a variety of contractual relationships,
including . . . insurance contracts’’ (internal quota-
tion marks omitted)). Buckman explained: ‘‘[T]his court
recognizes an independent cause of action in tort arising
from an insurer’s [common-law] duty of good faith.
This cause of action is separate and distinct from the
plaintiff’s statutory claims. See Magnan v. Anaconda
Industries, Inc., 193 Conn. 558, 566, 479 A.2d 781 (1984);
Burgess v. Vanguard Ins. Co., 192 Conn. 124, 127, 470
A.2d 244 (1984); Bibeault v. Hanover Ins. Co., 417 A.2d
313 (R.I. 1980). An ‘implied covenant of good faith and
fair dealing has been applied by this court in a variety
of contractual relationships, including . . . insurance
contracts; Hoyt v. Factory Mutual Liberty Ins. Co., 120
Conn. 156, 159, 179 A. 842 (1935); Bartlett v. Travelers
Ins. Co., 117 Conn. 147, 155, 167 A. 180 (1933); cf. Grand
Sheet Metal Products Co. v. Protection Mutual Ins. Co.,
34 Conn. [Supp.] 46, 375 A.2d 428 (1977) . . . .’ Magnan
v. Anaconda Industries, Inc., supra [566]; see also 2
Restatement (Second), Contracts § 205 [p. 99 (1981)];
43 Am. Jur. 2d [224–28], Insurance §§ 141, 142 [1982];
3 [M. Rhodes, Couch on Insurance (2d Ed. 1984)] § 25.32
[pp. 327–31].’’ Buckman v. People Express, Inc., supra,
170–71.
More recently, we have summarized the elements of
such a claim, again in the insurance context: ‘‘[I]t is
axiomatic that . . . every contract carries an implied
duty requiring that neither party do anything that will
injure the right of the other to receive the benefits of
the agreement. . . . The covenant of good faith and
fair dealing presupposes that the terms and purpose of
the contract are agreed [on] by the parties and that
what is in dispute is a party’s discretionary application
or interpretation of a contract term. . . .
‘‘To constitute a breach of [the implied covenant of
good faith and fair dealing], the acts by which a defen-
dant 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.
. . . Bad faith in general implies both 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
mistake as to one’s rights or duties, but by some inter-
ested or sinister motive. . . . Bad faith means more
than mere negligence; it involves a dishonest purpose.’’
(Internal quotation marks omitted.) Capstone Building
Corp. v. American Motorists Ins. Co., 308 Conn. 760,
794–95, 67 A.3d 961 (2013). ‘‘[V]iolations of express
duties are necessary to maintain a bad faith cause of
action.’’ Id., 797.
In the present case, the majority concludes that,
because the plaintiff’s bad faith claim is based on
alleged misconduct during the litigation, it is barred by
the litigation privilege. See part II of the majority opin-
ion. In part II B of this opinion, I explain why I disagree
with the majority’s conclusion that the plaintiff’s bad
faith claim is based exclusively on litigation conduct
and why the prelitigation misconduct at issue is action-
able in a bad faith claim under Connecticut law. In part
II C, I explain why, to the extent that the claim is based
on litigation conduct, the majority’s analysis fails to
adequately grapple with the relevant legal principles.
B
In the operative complaint, the plaintiff alleges that
the defendant ‘‘agreed to pay [her] all sums [that she]
was legally entitled to recover from the owner or opera-
tor of an uninsured or underinsured motor vehicle for
damages resulting from bodily injury sustained by [her]
in an accident involving the maintenance or use of the
uninsured or underinsured motor vehicle, up to the
limits of its contract.’’ Although the operative complaint
is not a model of clarity, it fairly can be read as also
alleging that all of the conditions for the performance
of the defendant’s obligation to pay her for her bodily
injuries were met at the time this action was initiated,
the defendant knew at that time that it was obligated
to pay the plaintiff, and it nevertheless refused to pay
the claim but, instead, ‘‘compelled [the plaintiff] to
resort to litigation to obtain what was due to her’’ under
the insurance policy.8 As I noted previously in this opin-
ion, CUIPA expressly identifies such conduct as an
unfair claim settlement practice if it is part of a general
business practice. See General Statutes § 38a-816 (6)
(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’’ is unfair
claim settlement practice). Although a single instance
of such conduct does not give rise to a CUIPA violation
in the absence of a general business practice, an insur-
er’s refusal to honor a contractual obligation to pay
a claim for no good reason does constitute bad faith
conduct sufficient to state a claim for breach under our
common law. See Capstone Building Corp. v. Ameri-
can Motorists Ins. Co., supra, 308 Conn. 795 (refusal
to perform express contractual obligation not prompted
by honest mistake constitutes bad faith). I would there-
fore conclude that these allegations—which do not
implicate the litigation privilege because they do not
involve any litigation conduct by the defendant—are
sufficient to withstand a motion to dismiss.
The majority, in my view, fails to acknowledge that
the contractual obligations of liability insurance compa-
nies to their insureds are treated differently under Con-
necticut law than the obligations of most other contracting
parties. Many parties may risk nothing more than contrac-
tual liability if they choose to meet a legitimate contractual
demand with the time-honored response, ‘‘so sue me.’’
An insurance company defending a first-party claim is
different because it is subject to a higher duty under
our common law and can incur liability if it compels
its insured to resort to litigation to obtain payment due
under its insurance policy. See part II A of this opinion
(discussing common law); cf. General Statutes § 38a-
816 (6) (G). The litigation privilege does not bar such
a claim.
C
To the extent that the plaintiff’s bad faith claim is
based in part on her allegations of litigation misconduct,
it is far from clear to me that it is barred by the litigation
privilege, and I am unpersuaded by the majority’s appli-
cation of the privilege under these circumstances. There
is good reason to develop a more nuanced doctrine adapted
to cases involving parties whose commercial activities
involve frequent use of the courts as an intrinsic compo-
nent of their business activities, and who are alleged
to have breached a duty owed to the plaintiff in part by
engaging in litigation misconduct. Our existing litigation
privilege doctrine, properly applied to the present cir-
cumstances, readily accommodates this approach.
As the majority recognizes, when confronted with
the question of whether the litigation privilege bars a
claim, the inquiry is whether, viewed in its factual con-
text, the plaintiff’s claim—be it for fraud, tortious inter-
ference, or a statutory violation—is more like a claim
for defamation or fraud, on the one hand, or a claim
for vexatious litigation or abuse of process, on the other.
See MacDermid, Inc. v. Leonetti, 310 Conn. 616, 631,
79 A.3d 60 (2013) (considering whether ‘‘the allegations
in the counterclaim [for retaliation] are more akin to an
abuse of process claim [than] a defamation or tortious
interference claim’’ (internal quotation marks omitted));
Simms v. Seaman, 308 Conn. 523, 547–51, 69 A.3d 880
(2013) (analyzing whether fraud is similar to defamation
for purposes of litigation privilege). Applying this analy-
sis to the plaintiff’s claims of bad faith, and even assum-
ing that the claim relies necessarily on allegations of
litigation misconduct, I would find that the complaint
is not barred by the privilege.
The majority acknowledges that the litigation privi-
lege does not bar abuse of process type claims but
concludes that the plaintiff’s bad faith claim is barred
because it more closely resembles the type of claims
to which the privilege applies, such as defamation and
fraud. Specifically, the majority concludes that the bad
faith claim is barred because, like defamation and fraud
claims, (1) the claim was based exclusively on false
statements made by the defendant in court filings; part
II B of the majority opinion; (2) the plaintiff does not
‘‘challenge the purpose of any underlying litigation’’;
part II A of the majority opinion; and (3) other remedies
exist for the complained of conduct. Part III C of the
majority opinion. I disagree and would conclude that
the bad faith claim fits comfortably within the frame-
work of an abuse of process claim because it adequately
alleges that the defendant acted with an improper pur-
pose within the meaning of the common-law abuse of
process doctrine.9
A careful examination of the common-law tort of
abuse of process demonstrates why, contrary to the
majority’s conclusion, the plaintiff’s bad faith claim in
the present case—based not only on allegations that
the defendant improperly compelled the plaintiff to
resort to litigation to obtain payment, but that the defen-
dant then misused litigation procedures in an attempt
to avoid or delay the performance of its contractual
obligation to pay the plaintiff’s valid claim—is far more
similar to an abuse of process claim, to which the litiga-
tion privilege does not apply, than to a claim of defama-
tion or fraud, to which the privilege does apply.
 This court previously has held that, ‘‘[b]ecause the
tort [of abuse of process] arises out of the accomplish-
ment of a result that could not be achieved by the
proper and successful use of process, [§ 682 of the
Restatement (Second) of Torts] emphasizes that the
gravamen of the action . . . is the use of a legal process
. . . against another primarily to accomplish a pur-
pose for which it is not designed . . . . Comment [b]
to § 682 explains that the addition of primarily is meant
to exclude liability when the process is used for the
purpose for which it is intended, but there is an inciden-
tal motive of spite or an ulterior purpose of benefit to the
defendant.’’ (Emphasis in original; internal quotation
marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494,
529 A.2d 171 (1987); see 3 Restatement (Second), Torts
§ 682, p. 474 (1977); 3 Restatement (Second), Torts,
supra, § 682, comment (b), p. 475. Comment (a) to § 682
further provides that ‘‘it is immaterial that the process
was properly issued, that it was obtained in the course
of proceedings that were brought with probable cause
and for a proper purpose, or even that the proceedings
terminated in favor of the person instituting or initiating
them. The subsequent misuse of the process, though
properly obtained, constitutes the misconduct for which
the liability is imposed under the rule stated in this
[s]ection.’’ (Emphasis added.) 3 Restatement (Second),
Torts, supra, § 682, comment (a), p. 474. Thus, Mozzochi
and § 682 of the Restatement (Second) of Torts clearly
indicate that the fact that the underlying proceedings
had a proper overall purpose does not immunize a party
from a claim for abuse of process when the claim alleges
that the defendant has used a particular judicial proce-
dure for an improper purpose, as, indeed, the majority
concedes. See part II A of the majority opinion (‘‘the
plaintiff’s cause of action must itself challenge the pur-
pose of the underlying litigation or litigation pro-
cedure’’).10
The tort of abuse of process is not well defined.11 See
Italian Star Line, Inc. v. United States Shipping Board
Emergency Fleet Corp., 53 F.2d 359, 361 (2d Cir. 1931)
(‘‘the elements vital to an action for abuse of process
are not clearly defined, either by the cases or by writers
on the subject’’); Mozzochi v. Beck, supra, 204 Conn.
496 (‘‘[c]ourts have struggled to determine under what
circumstances . . . a complaint states a cause of
action for abuse of process’’); Board of Education of
Farmingdale Union Free School District v. Farming-
dale Classroom Teachers Assn., Inc., Local 1889, AFT
AFL-CIO, 38 N.Y.2d 397, 400, 343 N.E.2d 278, 380
N.Y.S.2d 635 (1975) (‘‘this tort is an obscure one . . .
one which is rarely brought to the attention of the courts
. . . and the vital elements of which are not clearly
defined’’ (citations omitted)). There appears to be gen-
eral agreement, however, that ‘‘[t]he improper purpose
usually takes the form of coercion to obtain a collateral
advantage, not properly involved in the proceeding
itself, such as the surrender of property or the payment
of money, by the use of the process as a threat or a
club.’’ W. Keeton et al., Prosser and Keeton on the Law
of Torts (5th Ed. 1984) § 121, p. 898; accord Preferred
Properties, Inc. v. Indian River Estates, Inc. 276 F.3d
790, 801–802 (6th Cir.), cert. denied, 536 U.S. 959, 122
S. Ct. 2663, 153 L. Ed. 2d 838 (2002); see also Board of
Education of Farmingdale Union Free School District
v. Farmingdale Classroom Teachers Assn., Inc., Local
1889, AFT AFL-CIO, supra, 404 (‘‘[L]egal procedure
must be utilized in a manner consonant with the pur-
pose for which that procedure was designed. [When]
process is manipulated to achieve some collateral
advantage, whether it be denominated extortion, black-
mail or retribution, the tort of abuse of process will be
available to the injured party.’’). A number of courts
have held that this definition is capacious enough to
include an attempt by an insurance company to use legal
procedures to bully the opposing party into abandoning
litigation or settling it favorably. See General Refractor-
ies Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 308
(3d Cir. 2003) (if severe enough, using litigation process
to harass, drain resources, delay payment and delay
litigation can constitute abuse of process); Crackel v.
Allstate Ins. Co., 208 Ariz. 252, 260, 92 P.3d 882 (App.
2004) (‘‘[The plaintiffs] maintain that [the defendant
insurer] used the prospect of sustained and expensive
litigation as a ‘club’ in an attempt to coerce them, and
other similarly situated claimants, to surrender those
causes of action that sought only modest damages. We
have little trouble concluding that such a use of court
processes would be improper.’’); Givens v. Mullikin ex
rel. Estate of McElwaney, 75 S.W.3d 383, 401 (Tenn.
2002) (‘‘a primary desire to harass and cause unneces-
sary expense to the other party in litigation is a sufficient
ulterior motive to constitute an abuse of process’’);
Givens v. Mullikin ex rel. Estate of McElwaney, supra,
401–402 (insurer’s intent to weaken claimant’s resolve
to pursue litigation is improper purpose); see also Bull
v. McCuskey, 96 Nev. 706, 709, 615 P.2d 957 (1980)
(filing lawsuit to coerce nuisance settlement constitutes
abuse of process); cf. McGann v. Allen, 105 Conn. 177,
186–87, 134 A. 810 (1926) (filing criminal complaint for
purpose of compelling plaintiff to settle claim for alleg-
edly stolen goods tends to show malice for purpose of
malicious prosecution claim).12
The foregoing review demonstrates, at the very least,
that the present case involves complexities and nuances
that the majority does not fully examine.13 There is
ample support for the proposition that, when specific
procedures—including ‘‘the noticing of depositions, the
entry of defaults, and the utilization of various motions
such as motions to compel production, for protective
orders, for change of judge, for sanctions and for contin-
uances’’—are undertaken for an improper ulterior pur-
pose, they are not subject to the litigation privilege,
regardless of whether the underlying litigation was
proper. Nienstedt v. Wetzel, 133 Ariz. 348, 352–53, 651
P.2d 876 (1982); see Hough v. Stockbridge, 152 Wn. App.
328, 346, 216 P.3d 1077 (2009) (‘‘Depositions, motions,
interrogatories, and other requests for discovery or
legal maneuverings to compel or prohibit action by an
opponent all invoke the authority of the court. They
are, therefore, the type of process that will support an
abuse of process claim.’’), review denied, 168 Wn. 2d
1043, 234 P.3d 1173 (2010). There also is ample support
for the proposition that, for purposes of the tort of
abuse of process, an improper ulterior purpose may
include an intent by an insurance company to harass,
to drain resources, to delay payment, to coerce the
opposing party into abandoning the litigation or settling.
See General Refractories Co. v. Fireman’s Fund Ins.
Co., supra, 337 F.3d 308; Crackel v. Allstate Ins. Co.,
supra, 208 Ariz. 258–59; Givens v. Mullikin ex rel. Estate
of McElwaney, supra, 75 S.W.3d 401–402.
Similarly, if an insurance company misuses a litiga-
tion procedure with the intent of avoiding or delaying
the performance of its contractual obligations to an
insured, I see no reason why the litigation privilege
should bar a bad faith claim based on that conduct.
Such a claim is far more akin to an abuse of process
claim than to a defamation claim, and multiple courts
have recognized that an insurance company’s obligation
to investigate and settle claims in good faith does not
end when litigation begins. See, e.g., Tucson Airport
Authority v. Certain Underwriters at Lloyd’s, London,
186 Ariz. 45, 48, 918 P.2d 1063 (App. 1996) (‘‘[t]he duties
[of good faith and fair dealing] would be rendered mean-
ingless if . . . the litigation privilege could be
employed to excuse a breach of those duties, which
occurs as part of the conduct of a coverage action’’),
review denied, Arizona Supreme Court, Docket No. 2
CA-CV 95-0052 (June 19, 1996); Gooch v. State Farm
Mutual Automobile Ins. Co., 712 N.E.2d 38, 43 (Ind.
App. 1999) (insurance company’s intentional refusal to
investigate matter relevant to claim in order to provide
counsel with ‘‘a ‘litigation position’ ’’ could support bad
faith claim), transfer denied, 735 N.E.2d 223 (Ind. 2000);
Federated Mutual Ins. Co. v. Anderson, 297 Mont. 33,
43, 991 P.2d 915 (1999) (jury could consider insurance
company’s frivolous appeal as evidence of bad faith
conduct);14 O’Donnell ex rel. Mitro v. Allstate Ins. Co.,
734 A.2d 901, 906 (Pa. Super. 1999) (‘‘bad faith suits are
not restricted to the denial of claims, but, rather, may
extend to the misconduct of an insurer during the pen-
dency of litigation’’ (internal quotation marks omitted));
Poling v. Motorists Mutual Ins. Co., 192 W. Va. 46, 48,
450 S.E.2d 635 (1994) (plaintiff is not precluded from
bringing bad faith action based on insurance company’s
litigation conduct).
The majority states that the litigation privilege applies
in this case because the plaintiff’s bad faith claim ‘‘does
not require the plaintiff to challenge either the purpose
of the underlying litigation or the purpose of a particular
judicial procedure.’’ Part II A of the majority opinion.
This assertion is flatly incorrect. To prevail on her claim
that the defendant engaged in bad faith litigation con-
duct, the plaintiff would be required to establish that
the defendant used litigation procedures, such as filing
baseless special defenses or false discovery responses,
for the improper purposes alleged in her complaint,
namely, ‘‘forc[ing] [the plaintiff] to undergo an unneces-
sarily time consuming and expensive course of litigation
to obtain what was legally due to [her]’’ and ‘‘frustrat-
[ing] [her] ability to receive benefits due [to her] under
her contract.’’
The majority also argues that, ‘‘[i]f [this concurring
and dissenting opinion] were correct that the plaintiff’s
factual allegations were sufficient . . . 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.’’ Part II A of
the majority opinion. Not at all. First, I have repeatedly
stressed in this opinion that my conclusions are driven
largely by the special considerations that arise from the
relationship between an insurance company and a first-
party insured, considerations that are embedded in the
common-law bad faith doctrine, including the asymme-
try between the insured and the insurer with respect
to bargaining power and litigation experience and the
special vulnerabilities of an insured who has suffered
a covered loss. See part II A of this opinion; see also
part III B of this opinion (discussing similar considera-
tions in connection with CUIPA and CUTPA). Second,
some ‘‘improper purposes,’’ such as the intent to
defraud or defame, have been found not to constitute
abuse of process as a matter of law for purposes of the
litigation privilege; an allegation that the defendant’s
fraud or defamation constituted abuse of process could
not survive a motion to dismiss. But, if a party can
allege facts showing that a defendant has abused judi-
cial procedures for a purpose that has been recognized
as improper, such as to stonewall an insured who is
entitled to payment of a valid claim under the applicable
policy without resorting to litigation, I see no reason
why the litigation privilege should bar that claim at this
preliminary stage of the proceedings. Of course, the
plaintiff then bears the burden of proving these allega-
tions at trial.
I also disagree with majority’s suggestion that a prop-
erly alleged bad faith claim based on an insurance com-
pany’s litigation conduct would be subject to the
litigation privilege because of the availability of alterna-
tive remedies, including a claim pursuant to General
Statutes §§ 52-9915 or General Statutes § 52-568.16 See
part II C of the majority opinion. In my view, that consid-
eration should carry little weight if public policy other-
wise counsels in favor of recognizing such claims,
particularly when, as here, the supposed ‘‘remedy’’ may
provide no meaningful relief at all to the individual
plaintiff. Unlike a lawsuit alleging bad faith, the alterna-
tive remedies identified by the majority, such as court
imposed sanctions, attorney grievance proceedings and
contempt proceedings, are not intended to compensate
the victims who actually have been injured by bad faith
litigation conduct. Indeed, such alternative remedies
are also available when a party has engaged in abuse
of process, yet that tort is not subject to the privilege.
I would further note that, because §§ 52-99 and 52-568
make it clear that it is the strong public policy of this
state to discourage dishonesty during the litigation pro-
cess, those statutes support the plaintiff’s argument
that the privilege does not bar a claim that an insurance
company violated its obligation of good faith by engag-
ing in such conduct.
To summarize, I do not agree with the majority’s
conclusion that the plaintiff’s bad faith claim is prem-
ised exclusively on false statements in the course of
the litigation and, instead, would conclude that the
plaintiff has adequately alleged a bad faith claim based
on conduct entirely outside of the litigation. Even if I
agreed with the conclusion that the plaintiff’s bad faith
claim is barred because it is premised exclusively on
false statements in the course of the litigation, I would
not agree with the remainder of the majority’s analysis.
I therefore dissent from part II of the majority opinion.
Because the defendant makes no claim that an insur-
ance company’s bad faith conduct outside the context
of litigation cannot provide the basis for a claim of
negligent infliction of emotional distress, I would also
conclude that the allegations in count four of the plain-
tiff’s complaint are sufficient to withstand a motion to
dismiss. If the plaintiff could demonstrate at trial that
the defendant acted in bad faith within the meaning of
Connecticut law, I believe that she would be entitled
to recover damages for negligent infliction of emotional
distress on that basis. Accordingly, I also dissent from
part III of the majority opinion.
III
I next address part IV of the majority opinion address-
ing the plaintiff’s CUIPA/CUTPA claim. To put the mat-
ter directly, I am concerned that the majority’s discus-
sion of the litigation privilege in this case will be
extended to CUIPA/CUTPA cases involving allegations
that an unscrupulous insurance company is engaging
in unfair claim settlement practices, in whole or in part,
by purposely utilizing the litigation process, or particu-
lar litigation tactics, as an integral part of a general
business with that objective. I genuinely appreciate the
majority’s effort to acknowledge the limited scope of
its holding,17 and, in light of that caveat, I may be over-
reacting to the possibility that its holding will be
extended to the situation I describe. A cautionary note
seems prudent nonetheless. In part III A, I express my
disappointment that the majority reaches the question
at all of whether the litigation privilege applies to the
CUIPA/CUTPA claim, as alleged in count five of the
plaintiff’s complaint; in my estimation, that claim is
legally insufficient wholly apart from any issue of privi-
lege. Part III B of this opinion takes issue with certain
language used by the majority that I consider unneces-
sary to the opinion and better left to a case in which
the issues addressed are properly before the court.
A
In my view, there is no need to address the litigation
privilege at all in connection with the CUIPA/CUTPA
claim, as alleged by the plaintiff in the present case.
The majority correctly observes that the only part of
the plaintiff’s complaint coming anywhere close to
asserting a CUIPA violation are her allegations that
(1) the defendant responded falsely to the plaintiff’s
discovery requests, and (2) this conduct represents a
general business practice because the defendant admit-
ted that it did not single the plaintiff out for special
treatment when it provided the false responses. See
part IV of the majority opinion. I would have preferred
that the majority explain that these factual assertions
fail adequately to allege that the purported misconduct
occurred with such frequency as to indicate a general
business practice, and stop there. Instead, the majority
chooses to ‘‘assume’’ that a general business practice
is alleged, and then explains why the act of filing false
discovery responses is within the scope of the litigation
privilege in a CUIPA/CUTPA case. See id.
I am aware of no good reason to assume that a legally
insufficient pleading is legally sufficient under these
circumstances, and I consider it unwise to do so. The
discussion of the litigation privilege in the majority opin-
ion is unnecessary because the critical allegation required
to state a CUIPA claim—that filing false discovery
responses is part of the defendant’s ‘‘general business
practice’’—is deficient as a matter of law. As the major-
ity points out, the sole, relevant allegation consists of
the plaintiff’s assertion that ‘‘the defendant ‘did not
single [her] out . . . for special or unique treatment
when it responded falsely to [her] discovery requests.’ ’’
Id. Even if this allegation is construed liberally, as it
must be, the complaint fails to allege that the conduct at
issue was committed ‘‘with such frequency as to indi-
cate a general business practice,’’ as CUIPA requires.
General Statutes § 38a-816 (6). The allegation that the
plaintiff was not singled out for special or unique treat-
ment does not state, or even imply, that the defendant
files false discovery answers frequently, as part of a
general business practice, plan or strategy. It means
only that the discovery misconduct of which the plain-
tiff complains was not undertaken against her with any
personal animus or particularized intent. The plaintiff
is ‘‘the master of her complaint,’’ as the majority points
out; footnote 6 of the majority opinion; and was permit-
ted in this case to amend that pleading numerous times
before its sufficiency was tested by motion. If the plain-
tiff wanted to allege that the defendant frequently
engages in the same misconduct with other insureds,
it is not too much to require an explicit allegation to
that effect.
Normally, it would not be a cause for concern that
we proceed to take up a merits issue by assuming that
the plaintiff’s complaint states an otherwise cognizable
claim. But the situation is different here for three related
reasons. First, the merits issue, even in its most basic
formulation—namely, the applicability of the litigation
privilege to CUTPA claims—presents an important issue
of first impression in this court. Second, while that issue
of first impression is difficult enough in its simplest
form, it becomes far more complicated in the context
of a case like this one, which involves a first-party CUIPA/
CUTPA claim against an insurance company. The diffi-
culty arises because the defendants in these cases are
engaged in the business of litigation and are therefore
able, if they choose, to misuse litigation systemically
in a way that distinguishes CUIPA/CUTPA claims from
the type of garden-variety tort claims in which the litiga-
tion privilege traditionally applies, and that distin-
guishes insurance company defendants from the class
of litigants traditionally subject to the privilege. Third,
this particular case is very poorly suited as a means to
properly address the important and difficult merits
issues, not only because the factual allegations are so
thin and weak, but also because neither party has pro-
vided us with adequate briefing on the CUIPA/CUTPA
issue.
These three reasons help explain why I would have
avoided the merits altogether with respect to the plain-
tiff’s CUIPA/CUTPA claim. Although the majority opin-
ion is intended to apply only to the facts as alleged, in my
view, it would be better to say nothing at all, because,
especially in the absence of adequate briefing, the court
cannot be expected to grapple with, much less resolve,
the far more complex and nuanced issues that would be
implicated in CUIPA/CUTPA cases involving genuinely
serious claims of unfair claim settlement practices
effectuated, in whole or part, through a business prac-
tice involving litigation misconduct.
B
The majority states that ‘‘the litigation privilege bars
CUTPA claims, like the claim at issue, premised solely
on general allegations of intentionally false discovery
responses . . . .’’ Part IV of the majority opinion. In
addition, the majority concludes that the claim is barred
because other remedies are available. Id. This narrow
holding appears to leave open the possibility that a
CUIPA/CUTPA claim that is not based solely on the
falsity of communications made during the course of
litigation would not be barred.18 I take this as positive
news. The issues under consideration are complex, and
there is strong authority for the proposition that, in a
case involving more robust factual allegations, conduct
that is designed to harass or delay an insured can consti-
tute abuse of process.19 See part II C of this opinion
(addressing authorities at length.) In addition, multiple
courts have held that litigation conduct by an insurance
company that is designed to coerce the withdrawal of
a claim or a settlement unfavorable to the plaintiff may
give rise to a claim of bad faith.20 I see no reason why
a CUTPA claim based on the systematic use of litigation
for these purposes should be barred merely because
the underlying litigation pursued by the insured was
properly brought. Indeed, this point seems especially
strong because the legislature has expressly recognized
that an insurance company can engage in an unfair
claim settlement practice by forcing an insured into
litigation in order to obtain his or her contractual bene-
fits. See General Statutes § 38a-816 (6) (G) (listing as
prohibited unfair claim settlement practice ‘‘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’’). This statutory provision
means that an insurance company, unlike other liti-
gants, can abuse the litigation system merely by compel-
ling an insured to resort to that system as a means of
‘‘dispute’’ resolution.
My point is not that there is a perfect identity between
an abuse of process claim and a well pleaded CUIPA/
CUTPA claim alleging that the defendant has engaged
in unfair claim settlement practices effectuated, in whole
or part, through a business practice involving litigation
misconduct. A perfect fit is not required to make the
litigation privilege inapplicable, or, otherwise, the majori-
ty’s analysis could be stated in one sentence: a CUIPA/
CUTPA claim is barred because every claim is barred
that does not state a cause of action for vexatious litiga-
tion or abuse of process. As the majority recognizes,
the proper inquiry, rather, is whether, when viewed in
its factual context, the plaintiff’s claim—whether it be
for fraud, tortious interference, or a statutory viola-
tion—is more like a claim for defamation or fraud, on
the one hand, or a claim for vexatious litigation or
abuse of process, on the other. See MacDermid, Inc.
v. Leonetti, supra, 310 Conn. 631 (considering whether
‘‘the allegations in the counterclaim [for retaliation]
are more akin to an abuse of process claim [than] a
defamation or tortious interference claim’’ (internal
quotation marks omitted)); Simms v. Seaman, supra,
308 Conn. 547–51 (analyzing whether fraud is similar
to defamation for purposes of litigation privilege). We
cannot resolve the inquiry in the abstract with respect
to some future CUIPA/CUTPA claim, and I do not intend
to suggest a definitive answer here. I am convinced
only that it is a real issue and has not yet been properly
presented or briefed before this court.
With respect to the issue of alternative remedies, the
legislature enacted CUTPA with the intent ‘‘of encourag-
ing litigants to act as private attorneys general’’ to com-
bat systemic unfair business practices. Stone v. East
Coast Swappers, LLC, 337 Conn. 589, 605, 255 A.3d 851
(2020). It undermines this intent to limit a plaintiff’s
remedies to sanctions, grievance proceedings and con-
tempt proceedings restricted to particular acts of miscon-
duct in a single case, when the allegations claim a sys-
temic business practice across multiple cases.
Despite leaving open the possibility that CUIPA/
CUTPA claims based on other types of litigation miscon-
duct might not be subject to the litigation privilege, the
majority suggests that, if the legislature had wanted
claims based on systematic litigation misconduct to
be subject to CUTPA, it ‘‘would have been explicit in
abrogating the immunity . . . .’’ Part IV of the majority
opinion. I disagree with this speculation. This court has
recognized that ‘‘[t]he Connecticut General Assembly
deliberately chose not to define the scope of unfair or
deceptive acts proscribed by CUTPA so that courts
might develop a body of law responsive to the market-
place practices that actually generate such complaints.’’
Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747,
755, 474 A.2d 780 (1984). ‘‘Because CUTPA is a self-
avowed remedial measure . . . it is construed liberally
in an effort to effectuate its public policy goals.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id.,
756. In light of the legislature’s deliberate choice to
allow the courts to define the scope of proscribed con-
duct and the statute’s broad remedial purpose, it seems
extremely doubtful to me that the legislature’s failure
to expressly recognize an exception to the common-law
litigation privilege for CUTPA claims involving conduct
during litigation evinces an intent to bar such claims.
Cf. Barefield v. DPIC Cos., 215 W. Va. 544, 554, 600
S.E.2d 256 (2004) (‘‘We find no caveat in the [West
Virginia Unfair Trade Practices Act] . . . [that] states
that an insurance company or other person in the busi-
ness of insurance . . . has a duty to refrain from unfair
methods of competition or unfair or deceptive acts or
practices [only] prior to the filing of a lawsuit by a
party, but has no such duty thereafter. We find nothing
to show that the public policy established in [the stat-
ute] is obviated once litigation ensues. We therefore must
conclude that the language of the [statute] does not
restrict the scope of the conduct that is proscribed . . .
to that which occurred prior to the filing of a lawsuit.’’
(Internal quotation marks omitted.)).21 This is especially
so because, as discussed, the legislature expressly included
litigation related misconduct as one means by which
an insurance company could engage in unfair claim
settlement practices. See General Statutes § 38a-816 (6)
(G). It would be incongruous for the legislature to have
declared such conduct unlawful if it believed that the
policies underlying the litigation privilege should apply
to insurance companies defending first-party claims. In
any event, the parties have not given us a word of
briefing on the issue, and the facts of the case provide
us with an extremely poor framework within which to
decide the issue. Indeed, the majority appears to agree
that, in the appropriate, future case, we could decide,
like the court in Barefield, that the balancing of public
policy interests clearly weighs in favor of allowing prop-
erly pleaded CUTPA claims based on systemic abusive
litigation tactics by insurance companies in furtherance
of an unfair claim settlement practice. As I explained
in part II of this opinion, it is well established that
insurance contracts impose, at the very least, a duty of
good faith and fair dealing running from an insurer
to its insured, and several courts have held that that
obligation continues during and within the litigation
process. When the proper case arises, we should seri-
ously consider the possibility that systemic imbalances
between insurers and insureds make it tempting and
profitable for insurance companies to violate this obli-
gation of good faith as a general business practice. See
J. Ellison & T. Law, ‘‘Bad Faith and Punitive Damages:
The Policyholder’s Guide to Bad Faith Insurance Cover-
age Litigation—Understanding the Available Recovery
Tools,’’ American Law Institute—American Bar Associ-
ation Continuing Legal Education, Westlaw No. SK095
ALI-ABA *251, *259–72 (June 16, 2005) (discussing sys-
temic imbalances between insureds and insurers). As
one court has observed, ‘‘[i]nsurance is different. Once
an insured files a claim, the insurer has a strong incen-
tive to conserve its financial resources balanced against
the effect on its reputation of a hard-ball approach.
Insurance contracts are also unique in another respect.
Unlike other contracts, the insured has no ability to
cover if the insurer refuses without justification to pay
a claim. Insurance contracts are like many other con-
tracts in that one party (the insured) renders perfor-
mance first (by paying premiums) and then awaits the
counter-performance in the event of a claim. Insurance
is different, however, if the insurer breaches by refusing
to render the counter-performance. In a typical con-
tract, the [nonbreaching] party can replace the perfor-
mance of the breaching party by paying the [then
prevailing] market price for the counter-performance.
With insurance this is simply not possible. This feature
of insurance contracts distinguishes them from other
contracts and justifies the availability of punitive dam-
ages for breach in limited circumstances.’’ (Footnotes
omitted; internal quotation marks omitted.) E.I. DuPont
de Nemours & Co. v. Pressman, 679 A.2d 436, 447
(Del. 1996).
As I indicated, insurance is also different because
insurance companies are effectively in the business of
litigation.22 ‘‘[I]nsurance companies are bulk purchasers
of legal services; they incur proportionately lower litiga-
tion costs than their policyholders, and can reuse work
product from case to case.’’ J. Ellison & T. Law, supra,
*270; see id., *264 (‘‘[l]itigation is the bread and butter of
liability insurance companies and they are comfortable
with it’’). In 2005, ‘‘[t]he insurance industry . . . admit-
ted that it [spent] one billion dollars a year in so-called
‘coverage litigation’ ’’ in the property and casualty field
alone. Id., *265 and n.32. Even with these enormous
expenditures, insurance companies can profit by engag-
ing in dilatory litigation tactics because ‘‘insurance com-
panies earn investment income—a profit— during an
insurance coverage dispute with a policyholder. This
is done by continuing to invest the policyholder’s premi-
ums and the reserves for the duration of the dispute.’’
Id., *270. ‘‘If its investments have been good, it may even
have made enough to cover any prejudgment interest,
costs, or consequential damage[s] award, or counsel
fees collected by the policyholder.’’ (Internal quotation
marks omitted.) Id., *272. This systemic imbalance
‘‘allow[s] insurance companies to wage wars of attrition
against individual policyholders who litigate an insur-
ance dispute once in a lifetime.’’23 Id., *270. Even if
an insurance company occasionally loses money in a
particular case, the system ensures that insurance com-
panies will profit from a general practice of using litiga-
tion to coerce lowball settlements and, if that is not
possible, to delay payment as long as possible.
In light of the foregoing, members of this court—
properly briefed by the parties in a case raising the
issues squarely, as the present case does not—may well
conclude that public policy weighs in favor of the con-
clusion that the litigation privilege does not bar CUIPA/
CUTPA claims based on systematic litigation conduct
by an insurance company in furtherance of an unfair
claim settlement practice. If the litigation privilege does
not bar abuse of process claims or bad faith claims
based on litigation conduct in an individual case, there
is indeed a very strong argument that the systematic
abuse of litigation procedures as a general business
practice in violation of CUTPA should not be subject
to the privilege. Perhaps it would make far better sense
to hold that the privilege should be limited to its historic
application to defamation claims and causes of action
that are similar to that tort, i.e., those based on false
statements made during the litigation that are not part of
a systemic business practice prohibited by law. Public
policy surely does not weigh in favor of extending the
privilege to systematic litigation conduct in clear viola-
tion of the law; cf. Olson v. Accessory Controls & Equip-
ment Corp., 254 Conn. 145, 170, 757 A.2d 14 (2000)
(‘‘ ‘we exclude from the [attorney-client] privilege com-
munications made in furtherance of crime or fraud
because the costs to truth-seeking outweigh the justice-
enhancing effects of complete and candid attorney-cli-
ent conversations’ ’’), quoting In re Grand Jury Pro-
ceedings, 183 F.3d 71, 76–77 (1st Cir. 1999); and it is
unreasonable to assume that the legislature intended
otherwise merely because it failed to expressly exempt
CUTPA claims from the privilege. I therefore disagree
with the majority’s dictum to the extent that it suggests
that the litigation privilege would bar all CUTPA claims
based on conduct during litigation.
I agree, however, that the plaintiff in the present case
did not adequately allege a CUTPA claim. Accordingly,
I concur in part IV of the majority opinion, in which
the majority concludes that the trial court properly dis-
missed that claim.
1
I refer to Liberty Mutual Fire Insurance Company as the defendant. See
footnote 1 of the majority opinion.
2
The privilege has its origins in the law of defamation and, as such, is
concerned with misconduct by spoken or written word. See, e.g., Simms
v. Seaman, 308 Conn. 523, 531–35, 69 A.3d 880 (2013). This qualification
does not much limit the scope of the privilege because almost all litigation
activity is verbal in nature.
3
See 3 L. Russ & T. Segalla, Couch on Insurance (3d Ed. 2011) § 40:7, pp.
40-11 through 40-12 (‘‘The insurer has a duty of good faith and fair dealing
toward the insured. This duty arises out of the special relationship that
exists between the parties because of their unequal bargaining power and
the potential for an insurer to take advantage of an insured’s hardships when
negotiating to settle or resolve a claim. . . . When determining whether to
settle a claim, the insurer must give at least as much consideration to the well-
being of the insured as it does to its own interests.’’ (Footnotes omitted.));
see also Grand Sheet Metal Products Co. v. Protection Mutual Ins. Co., 34
Conn. Supp. 46, 51, 375 A.2d 428 (1977) (concluding that tort action by
insured against insurer for bad faith is justified in light of ‘‘the unequal
bargaining power of the parties, the special nature of the insurance business,
and the disastrous economic effects that a [bad faith] refusal to pay may
cause the insured’’). I discuss this point in part II A of this opinion.
4
I am not sure that this is the effect intended by the majority, which
seems open to the idea that another case with different facts involving
litigation misconduct by an insurance company may fall outside the scope
of the privilege. See footnote 17 of this opinion and accompanying text.
5
Because the plaintiff’s claim of negligent infliction of emotional distress
is premised on the conduct that forms the basis of her bad faith claim, I also
would conclude that the negligent infliction claim is sufficient to withstand
a motion to dismiss. I therefore dissent from part III of the majority opinion,
as well.
6
General Statutes § 38a-816 (6) defines ‘‘unfair claim settlement practices’’
as follows: ‘‘Committing or performing with such frequency as to indicate a
general business practice any of the following: (A) Misrepresenting pertinent
facts or insurance policy provisions relating to coverages at issue; (B) failing
to acknowledge and act with reasonable promptness upon communications
with respect to claims arising under insurance policies; (C) failing to adopt
and implement reasonable standards for the prompt investigation of claims
arising under insurance policies; (D) refusing to pay claims without conduct-
ing a reasonable investigation based upon all available information; (E)
failing to affirm or deny coverage of claims within a reasonable time after
proof of loss statements have been completed; (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; (H) attempting to settle a claim for less than the amount
to which a reasonable man would have believed he was entitled by reference
to written or printed advertising material accompanying or made part of an
application; (I) attempting to settle claims on the basis of an application
which was altered without notice to, or knowledge or consent of the insured;
(J) making claims payments to insureds or beneficiaries not accompanied
by statements setting forth the coverage under which the payments are
being made; (K) making known to insureds or claimants a policy of appealing
from arbitration awards in favor of insureds or claimants for the purpose
of compelling them to accept settlements or compromises less than the
amount awarded in arbitration; (L) delaying the investigation or payment
of claims by requiring an insured, claimant, or the physician of either to
submit a preliminary claim report and then requiring the subsequent submis-
sion of formal proof of loss forms, both of which submissions contain
substantially the same information; (M) failing to promptly settle claims,
where liability has become reasonably clear, under one portion of the insur-
ance policy coverage in order to influence settlements under other portions
of the insurance policy coverage; (N) failing to promptly provide a reasonable
explanation of the basis in the insurance policy in relation to the facts or
applicable law for denial of a claim or for the offer of a compromise settle-
ment; (O) using as a basis for cash settlement with a first party automobile
insurance claimant an amount which is less than the amount which the
insurer would pay if repairs were made unless such amount is agreed to
by the insured or provided for by the insurance policy.’’
7
We have observed in dictum that ‘‘an insurer generally has a fiduciary
relationship with its insured.’’ State v. Acordia, Inc., 310 Conn. 1, 37, 73
A.3d 711 (2013). But see Macomber v. Travelers Property & Casualty Corp.,
261 Conn. 620, 641, 804 A.2d 180 (2002) (‘‘[j]urisdictions are split on the
issue of whether an insurer owes a fiduciary duty to its insured; our case
law is silent on this issue’’).
8
The majority states that, ‘‘[a]s 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.’’ Footnote 6 of the majority opinion. I agree that the
plaintiff has not framed her argument in terms of prelitigation/postlitigation
conduct. But this court is addressing an important legal issue, and we are
not bound by the precise rubric and line drawing employed by the parties
in arguing their respective positions. See, e.g., Meribear Productions, Inc.
v. Frank, 340 Conn. 711, 732, 265 A.3d 870 (2021) (‘‘it is well established
that [w]e may . . . review legal arguments that differ from those raised by
the parties if they are subsumed within or intertwined with arguments related
to the legal claim before the court’’ (internal quotation marks omitted)).
This is especially true when, as here, the scope of a court’s subject matter
jurisdiction is being adjudicated. Cf. Fort Bend County v. Davis, U.S.
, 139 S. Ct. 1843, 1849, 204 L. Ed. 2d 116 (2019) (‘‘Characterizing a rule
as a limit on [subject matter] jurisdiction renders it unique in our adversarial
system. . . . Unlike most arguments, challenges to [subject matter] jurisdic-
tion may be raised by the defendant at any point in the litigation, and courts
must consider them sua sponte.’’ (Citation omitted; internal quotation marks
omitted.)). Indeed, if, in light of the novelty and complexity of the issues
presented, the briefing of both parties in this appeal leaves something to
be desired and provides insufficient guidance for the proper adjudication
of those issues, it is fair to say that the majority itself has not relied exclu-
sively on arguments that are found in the defendant’s brief. In my estimation,
this is a good thing, because, otherwise, its opinion would fail to serve its
public function.
To the extent that the majority is making a different point—by suggesting
that, ‘‘[a]s the master of her complaint,’’ the plaintiff has failed to allege
prelitigation misconduct as a basis for her claim—I simply disagree, particu-
larly when reading the complaint liberally, as we must. The plaintiff’s com-
plaint alleged, among other things, that, prior to the commencement of
litigation, the defendant knew that the plaintiff (1) was not at fault in the
underlying automobile accident, (2) had complied with all of her duties as
a covered person under the insurance policy issued by the defendant, and
(3) was legally entitled to recover underinsured motorist benefits from the
defendant under the policy. The complaint then expressly alleged that, by
engaging in the conduct alleged therein, the defendant violated its duty of
good faith and fair dealing by ‘‘compel[ing] [the plaintiff] to resort to litiga-
tion to obtain what was due to her from [the defendant] under the . . .
insurance policy . . . .’’ (Emphasis added.) I take these allegations, liber-
ally but fairly construed, to state a claim that the plaintiff was contractually
entitled to obtain payment of her claim without resorting to litigation but
was left no choice by the defendant’s prelitigation conduct to commence
litigation to obtain what was rightfully hers.
9
Regarding the majority’s conclusion that the plaintiff’s bad faith claim
is barred because it is based on false statements, I agree that the allegation
relating to the defendant’s filing of false discovery responses could be accu-
rately characterized as an allegation of making false statements but offer
two observations in response. First, as explained in part II B of this opinion,
the bad faith count is not based solely on improper conduct in the litigation
itself; it also expressly alleges a claim based on the defendant’s prelitigation
misconduct, namely, the conduct ‘‘compel[ing] [the plaintiff] to resort to
litigation to obtain what was due to her from [the defendant] under the
. . . insurance policy . . . .’’ The litigation misconduct is a continuation
of the prelitigation misconduct. Second, to the extent that the allegations
regarding false discovery responses are necessary to sustain the claim, that
fact itself does not trigger the privilege. False statements in litigation will
fall outside of the privilege if those statements are made in service of a
misuse of the litigation process itself. Indeed, verbal statements in litigation
are the means by which a party carries out the torts of vexatious litigation
and abuse of process. The statements at issue in the present case are
hardly gratuitous or peripheral in an underinsured motorist case; discovery
responses identifying witnesses are mandatory, they are signed under oath,
and they are meant to be relied on by the opposing party. See Practice Book
Form 213 (plaintiff’s interrogatories for uninsured/underinsured motorists
cases). If the defendant’s pleadings and response to these interrogatories
were false, and if intended to weaken her resolve to pursue the litigation
and to compel her to abandon her claim or to accept substantially less than
the amount to which she is entitled, the false statements were part and
parcel of the defendant’s abuse of process. In other words, unlike a fraud
claim, in which the essence of the claim is that the falseness of a communica-
tion itself injured the opposing party, the claim here is that the false litigation
communications were a tactic intended to prolong the litigation and to wear
down the plaintiff, in violation of the common-law and statutory duties the
defendant owed to the plaintiff.
10
In Simms v. Seaman, supra, 308 Conn. 523, we analyzed whether fraud
claims are sufficiently similar to abuse of process claims and vexatious
litigation claims to be exempt from the litigation privilege. We stated that,
to avoid the litigation privilege, ‘‘abuse of process claims must allege the
improper use of litigation to accomplish a purpose for which it was not
designed. . . . Likewise, vexatious litigation claims must allege, inter alia,
that the defendant acted primarily for a purpose other than that of bringing an
offender to justice and without probable cause.’’ (Citation omitted; internal
quotation marks omitted.) Id., 546. The majority in Simms concluded that
fraud claims based on litigation conduct are barred by the privilege because,
unlike abuse of process claims, they ‘‘[do] not require consideration of
whether the underlying purpose of the litigation was improper but, rather,
whether an attorney’s conduct while representing or advocating for a client
during a judicial proceeding that was brought for a proper purpose is entitled
to absolute immunity.’’ Id., 546–47.
I have no quarrel with Simms, but it would be a serious mistake to view
that case as holding that any claim of litigation misconduct involving false
speech is always covered by the litigation privilege, so long as the ‘‘underlying
purpose of the litigation’’ itself is legitimate. That conclusion would, in one
stroke, largely eviscerate the tort of abuse of process as explicated in § 682
of the Restatement (Second) of Torts, Mozzochi v. Beck, supra, 204 Conn.
494, and other leading authorities. We know that Simms could not have
intended such a result, moreover, because our case law, including Simms
itself, acknowledges that such claims are outside the privilege.
11
I note, for example, that there is little clarity regarding the scope and
meaning of the term ‘‘process.’’ This court has recognized that ‘‘most courts
that have considered the issue have construed the term process broadly.’’
Larobina v. McDonald, 274 Conn. 394, 406, 876 A.2d 522 (2005); see, e.g.,
Nienstedt v. Wetzel, 133 Ariz. 348, 352, 651 P.2d 876 (1982) (process ‘‘has
been interpreted broadly, and encompasses the entire range of procedures
incident to the litigation process’’); Nienstedt v. Wetzel, supra, 352–53 (‘‘we
. . . consider as ‘processes’ of the court for abuse of process purposes, the
noticing of depositions, the entry of defaults, and the utilization of various
motions such as motions to compel production, for protective orders, for
change of judge, for sanctions and for continuances’’); Barquis v. Merchants
Collection Assn. of Oakland, Inc., 7 Cal. 3d 94, 104 n.4, 496 P.2d 817, 101
Cal. Rptr. 745 (1972) (‘‘[p]rocess, as used in the tort of abuse of process,
has never been limited to the strict sense of the term, but instead has been
interpreted broadly to encompass the entire range of procedures incident
to litigation’’ (internal quotation marks omitted)); Hough v. Stockbridge, 152
Wn. App. 328, 346, 216 P.3d 1077 (2009) (‘‘Depositions, motions, interrogato-
ries, and other requests for discovery or legal maneuverings to compel or
prohibit action by an opponent all invoke the authority of the court. They
are, therefore, the type of process that will support an abuse of process
claim.’’), review denied, 168 Wn. 2d 1043, 234 P.3d 1173 (2010). As we stated
in Larobina, ‘‘[t]his broad reach of the abuse of process tort can be explained
historically, since the tort evolved as a [catchall] category to cover improper
uses of the judicial machinery that did not fit within the earlier established,
but narrowly circumscribed, action of malicious prosecution.’’ (Internal
quotation marks omitted.) Larobina v. McDonald, supra, 406. A number of
courts have held, however, that not all litigation procedures constitute
‘‘process.’’ See California Physicians’ Service v. Superior Court, 9 Cal.
App. 4th 1321, 1330, 12 Cal. Rptr. 2d 95 (1992) (Although an insurance
company’s ‘‘ridiculously low’’ settlement offer could be introduced as evi-
dence of bad faith, ‘‘[d]efensive pleading, including the assertion of affirma-
tive defenses, is communication protected by the absolute litigation
privilege. Such pleading, even though allegedly false, interposed in bad faith,
or even asserted for inappropriate purposes, cannot be used as the basis
for allegations of ongoing bad faith. No complaint can be grounded [on]
such pleading.’’); Ritter v. Ritter, 381 Ill. 549, 555, 46 N.E.2d 41 (1943)
(‘‘Under [Illinois] jurisprudence the defendant may present any defense to
such an action that he may have or that he may deem expedient, and in so
doing he will not be subjecting himself to a second suit by the plaintiff
based on the wrongful conduct of the defendant in causing the plaintiff to
sue him or in defending the action. The rule is the same even though
the wrongful conduct of the defendant is [wilful], intentional, malicious or
fraudulent.’’); W. Barker et al., ‘‘Litigating About Litigation: Can Insurers Be
Liable for Too Vigorously Defending Their Insureds?,’’ 42 Tort Trial & Ins.
Prac. L.J. 827, 854 (2007) (‘‘[t]he cases almost uniformly reject plaintiffs’
attempts to impose liability based on allegedly frivolous defenses, suppos-
edly asserted only to delay an inevitable recovery’’); cf. Dean v. Kirkland,
301 Ill. App. 495, 509–10, 23 N.E.2d 180 (1939) (filing of false pleadings,
falseness of which would be determined during course of underlying pro-
ceeding, was not abuse of process). But see Aranson v. Schroeder, 140 N.H.
359, 366–67, 671 A.2d 1023 (1995) (adopting tort of malicious defense if
defendant raises defense without probable cause for purpose of harassing
opponent or delaying litigation, and proceeding is terminated in favor of
plaintiff). Other authorities have limited the tort to process of a type that
compels ‘‘the performance or forbearance of some prescribed act.’’ (Internal
quotation marks omitted.) Long v. Long, 136 N.H. 25, 31, 611 A.2d 620 (1992);
see Board of Education of Farmingdale Union Free School District v.
Farmingdale Classroom Teachers Assn., Inc., Local 1889, AFT AFL-CIO,
38 N.Y.2d 397, 400–404, 343 N.E.2d 278, 380 N.Y.S.2d 635 (1975); see also 1
Am. Jur. 2d 492, Abuse of Process § 2 (2016) (‘‘ ‘process,’ the abuse of
which may support an abuse of process claim, is not limited to the original
pleadings; depositions, motions, interrogatories and other requests for dis-
covery, or legal maneuverings to compel or prohibit action by an opponent
all invoke the authority of the court and are, therefore, the type of process
that will support an abuse of process claim’’ (emphasis added)).
12
But see Bird v. Rothman, 128 Ariz. 599, 602, 627 P.2d 1097 (App. 1981)
(‘‘[t]here was no proof of an improper use of judicial process . . . as the
purpose of settlement is includable in the goals of proper process’’), review
denied, Arizona Supreme Court (May 5, 1981), cert. denied, 454 U.S. 865,
102 S. Ct. 327, 70 L. Ed. 2d 166 (1981); Azer v. Myers, 8 Haw. App. 86, 129–30
and n.38, 793 P.2d 1189 (trial court properly instructed jury that ‘‘[t]he
commencement of a lawsuit for the purpose of obtaining a settlement (which
may include the payment of money or insurance proceeds) is included in
the goals of proper process and, therefore, does not by itself give rise to
liability for abuse of process’’), rev’d in part on other grounds, 71 Haw. 506,
795 P.2d 853 (1990); Myers v. Cohen, 5 Haw. App. 232, 244, 687 P.2d 6
(‘‘[e]ven if frivolous, the counterclaim had the purpose of settlement which
is includable in the goals of proper process’’ (internal quotation marks
omitted)), rev’d on other grounds, 67 Haw. 389, 688 P.2d 1145 (1984); Ritter
v. Ritter, 381 Ill. 549, 555, 46 N.E.2d 41 (1943) (‘‘Under [Illinois] jurisprudence
the defendant may present any defense to such an action that he may have
or that he may deem expedient, and in so doing he will not be subjecting
himself to a second suit by the plaintiff based on the wrongful conduct of
the defendant in causing the plaintiff to sue him or in defending the action.
The rule is the same even though the wrongful conduct of the defendant is
[wilful], intentional, malicious or fraudulent.’’); W. Barker et al., ‘‘Litigating
About Litigation: Can Insurers Be Liable for Too Vigorously Defending Their
Insureds?,’’ 42 Tort Trial & Ins. Prac. L.J. 827, 854 (2007) (‘‘[t]he cases almost
uniformly reject plaintiffs’ attempts to impose liability based on allegedly
frivolous defenses, supposedly asserted only to delay an inevitable recov-
ery’’). At least one such case arises in the first-party insurance context. See
California Physicians’ Service v. Superior Court, 9 Cal. App. 4th 1321,
1330, 12 Cal. Rptr. 2d 95 (1992) (Although an insurance company’s ‘‘ridicu-
lously low’’ settlement offer could be introduced as evidence of bad faith,
‘‘[d]efensive pleading, including the assertion of affirmative defenses, is
communication protected by the absolute litigation privilege. Such pleading,
even though allegedly false, interposed in bad faith, or even asserted for
inappropriate purposes, cannot be used as the basis for allegations of ongo-
ing bad faith. No complaint can be grounded [on] such pleading.’’)
13
I do not fault the majority in this regard. As I have indicated, the plaintiff’s
allegations of bad faith are relatively weak, and neither party has adequately
briefed the underlying legal complexities involved. To modify the adage,
bad facts and inadequate briefing make bad law.
14
Thus, even if litigation misconduct in furtherance of an unfair claim
settlement practice cannot provide the basis for a bad faith violation, it
should be admissible as evidence of one.
15
General Statutes § 52-99 provides: ‘‘Any allegation or denial made with-
out 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; provided no expenses for counsel fees shall be taxed
exceeding ten dollars for any one offense.’’
16
General Statutes § 52-568 provides: ‘‘Any person who commences and
prosecutes any civil action or complaint against another, in his own name
or the name of others, or asserts a defense to any civil action or complaint
commenced and prosecuted by another (1) without probable cause, shall
pay such other person double damages, or (2) without probable cause, and
with a malicious intent unjustly to vex and trouble such other person, shall
pay him treble damages.’’
17
I refer in particular to the following passage in the majority opinion: ‘‘This
[holding] does not mean . . . that a defendant enjoys absolute immunity
for all CUTPA claims under the litigation privilege, even those premised on
a violation of CUIPA. Rather, we merely hold that this specific claim—a
business practice of filing false discovery responses—is afforded absolute
immunity. . . . Our holding leaves open the possibility that other CUTPA
claims may not be barred by absolute immunity under the litigation privi-
lege.’’ Part IV of the majority opinion.
18
All of the cases cited by the majority in support of its conclusion that
the litigation privilege bars CUTPA claims involved claims by the plaintiff
that the defendant had provided false information during a judicial proceed-
ing. See Graham v. U.S. Bank, National Assn., Docket No. 3:15-cv-0990-
AC, 2015 WL 10322087, *15 (D. Or. December 2, 2015) (privilege protects
communications made during judicial proceeding), report and recommenda-
tion adopted, 2016 WL 393336 (D. Or. February 1, 2016); Trent v. Mortgage
Electronic Registration Systems, Inc., 618 F. Supp. 2d 1356, 1360 (M.D. Fla.
2007) (privilege applies to communications in judicial proceedings), 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) (litigation privilege precludes deceptive trade practices claim based
on statements made in course of litigation); Bruno v. Travelers Cos., 172
Conn. App. 717, 725, 161 A.3d 630 (2017) (privilege confers immunity on
‘‘those who provide information in connection with judicial and quasi-judicial
proceedings’’ (internal quotation marks omitted)); Tyler v. Tatoian, 164
Conn. App. 82, 94, 137 A.3d 801 (statements made in course of judicial
proceedings are privileged), cert. denied, 321 Conn. 908, 135 A.3d 710 (2016).
For the reasons stated in the body of this opinion, I believe that a strong
argument can be made that the policy considerations underlying this rule
carry much less weight when the defendant has made it a business practice
to provide false information in judicial proceedings. Even if the majority is
correct, however, that false statements in the course of litigation are always
subject to the privilege, that would not mean that CUIPA/CUTPA claims
based on other litigation misconduct designed to harass the plaintiff or delay
the proceedings would be barred. See part II of this opinion.
19
See, e.g., General Refractories Co. v. Fireman’s Fund Ins. Co., supra,
337 F.3d 308; Crackel v. Allstate Ins. Co., supra, 208 Ariz. 258–59; Givens
v. Mullikin ex rel. Estate of McElwaney, supra, 75 S.W.3d 401–402.
20
See Tucson Airport Authority v. Certain Underwriters at Lloyd’s, Lon-
don, supra, 186 Ariz. 48; Gooch v. State Farm Mutual Automobile Ins. Co.,
supra, 712 N.E.2d 43; Federated Mutual Ins. Co. v. Anderson, supra, 297
Mont. 43–44; O’Donnell ex rel. Mitro v. Allstate Ins. Co., supra, 734 A.2d
906; Poling v. Motorists Mutual Ins. Co., supra, 192 W. Va. 48.
21
The court in Barefield also concluded that, although ‘‘the conduct of
an insurance company or other person in the business of insurance during
the pendency of a lawsuit may support a cause of action under the West
Virginia Unfair Trade Practices Act,’’ ‘‘an insurance company cannot be held
liable . . . for the actions of a defense attorney retained to defend an
insured, when the defense attorney’s strategy and tactics are a result of the
attorney’s independent, professional discretion with regard to the represen-
tation of the client-insured, and are not otherwise relied [on] or ratified by
the insurance company in a manner contrary to the [a]ct.’’ Barefield v. DPIC
Cos., supra, 215 W. Va. 559.
The majority cites to Harrison v. Nationwide Mutual Fire Ins. Co., 580
F. Supp. 133, 136 (E.D. Pa. 1983), for the proposition that ‘‘an unfair insurance
practices claim [that] is premised on pleadings or documents filed in and
relevant to an underlying judicial proceeding . . . is absolutely privileged,
even if the statements were made falsely or maliciously.’’ Part IV of the
majority opinion. The majority misreads Harrison. The claim in that case
was not that the defendant insurance company had violated Pennsylvania’s
Unfair Insurance Practices Act by systematically abusing the judicial process
for the purpose of coercing the abandonment of claims or favorable settle-
ments. Rather, the plaintiffs claimed that the insurance company had
defamed them by claiming that the house fire for which the plaintiffs sought
coverage was caused by arson and that they had misrepresented their dam-
ages. Id., 134. The court held that a defamatory statement contained in an
answer to a complaint is ‘‘absolutely privileged and . . . even if made
falsely or maliciously and without reasonable and probable cause, is an
absolute bar to an action of libel based on such averments.’’ (Emphasis in
original; internal quotation marks omitted.) Id., 136. This is hardly surprising,
as defamation is the paradigmatic tort to which the privilege applies.
Although the plaintiffs in Harrison did raise a claim under Pennsylvania’s
Unfair Insurance Practices Act; see id., 137; the basis for the claim was not
stated, and there is no indication that the insurance company raised a
litigation privilege defense to the claim. Rather, the court concluded that
the claim was barred because ‘‘[t]he relief sought by [the] plaintiffs [namely,
damages in excess of $20,000] is not what [the Unfair Insurance Practices]
Act provides as a penalty for its violation.’’ Id., citing Nazer v. Safeguard
Mutual Assurance Co., 293 Pa. Super. 385, 439 A.2d 165 (1981); see Nazer
v. Safeguard Mutual Assurance Co., supra, 387 (Pennsylvania act does not
create private cause of action).
22
The majority points out that ‘‘this court consistently has applied the
litigation privilege to attorneys, who, without a doubt, are in the business
of litigation.’’ Footnote 18 of the majority opinion. The comparison between
litigation attorneys and insurance companies is inapt. First, litigation attor-
neys, unlike liability insurance companies sued in first-party actions, do not
owe any duty of care (except as imposed by ethical rules) to the opposing
party, whereas liability insurance companies owe a heightened duty of care
to their insureds. Compare State v. Acordia, Inc., 310 Conn. 1, 37, 73 A.3d
711 (2013) (stating, albeit in dictum, that ‘‘an insurer generally has a fiduciary
relationship with its insured’’), with Mozzochi v. Beck, supra, 204 Conn. 497
(stating that liability rules must not ‘‘interfere with the attorney’s primary
duty of robust representation of the interests of his or her client’’). Second,
attorneys, unlike insurance companies, are categorically excluded from
CUTPA in connection with their litigation activities, privileged or not. See
Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997)
(CUTPA applies to attorneys only with respect to ‘‘the entrepreneurial or
commercial aspects of the profession’’). Third, the crux of the problem that
I address in this opinion is precisely that liability insurance companies, as
parties, are in the business of litigation in furtherance of their business
interests outside of litigation, i.e., as insurance companies. Their unusual
hybrid character enables them, if so inclined, to systematically misuse their
litigation activities for the purpose of furthering that nonlitigation business
activity. Litigation attorneys who engage in wrongful litigation conduct, by
contrast, have both feet firmly planted in the business of litigation; any
systemic abuse they may perpetrate occurs wholly within the judicial system
and is subject to its disciplinary oversight. Fourth and finally, insurance
companies are in the business of litigation, whereas insureds are not, which
I believe is one of the primary reasons that the law imposes a common-law
and statutory duty of good faith in connection with, among other things,
an insurance company’s litigation related conduct. At least when the system
is working properly and each side is represented by counsel, no comparable
imbalance exists with respect to litigation attorneys, because each party
has one. At the very least, even an unrepresented party knows that it is not
‘‘in good hands’’ when relying on opposing counsel.
23
As the court in Poling v. Motorists Mutual Ins. Co., supra, 192 W. Va.
46, stated, ‘‘[o]ften in lawsuits, there is a disparity of bargaining power
between the plaintiff and [the] defendant. In most cases, the defendant has
a resource advantage over the plaintiff and is able to draw out a trial
into a prolonged blizzard of mindless motions, countless continuances, and
dreadful delay.
 ‘‘The mere fact that after months of delay and hassle the insurance com-
pany deigns to speak to the injured party and settles the case for the policy
limits after realizing that the plaintiff is not going to accept some outlandish
[lowball] offer, does not automatically preclude the plaintiff from later bring-
ing a bad faith action that includes a request for punitive damages.’’ (Internal
quotation marks omitted.) Id., 48.