Opinion
AC 45389
08-20-2024
Tamara DORFMAN v. LIBERTY MUTUAL FIRE INSURANCE COMPANY
David P. Friedman, Stamford, with whom, on the brief, were Marilyn B. Fagelson, New Haven, Julie A. Lavoie, Hartford, and Leonard M. Isaac, Waterbury, for the appellant (plaintiff). Philip T. Newbury, Jr., Hartford, for the appellee (defendant). Alvord, Elgo and Seeley, Js.
David P. Friedman, Stamford, with whom, on the brief, were Marilyn B. Fagelson, New Haven, Julie A. Lavoie, Hartford, and Leonard M. Isaac, Waterbury, for the appellant (plaintiff).
Philip T. Newbury, Jr., Hartford, for the appellee (defendant).
Alvord, Elgo and Seeley, Js.
SEELEY, J.
The plaintiff, Tamara Dorfman, appeals from the summary judgment rendered by the trial court in favor of the defendant, Liberty Mutual Fire Insurance Company, in this action for, inter alia, vexatious litigation. On appeal, the plaintiff claims that the court (1) improperly granted the defendant’s motion for summary judgment as to the counts of her complaint alleging vexatious litigation on the basis of its determination that certain pleadings in a prior action between the parties were filed by the defendant with probable cause, (2) misapplied the proper standard of proof in granting the defendant’s motion for summary judgment as to the vexatious litigation counts, (3) improperly denied the plaintiff the ability to obtain meaningful discovery related to her claims of vexa- tious litigation prior to granting the defendant’s motion for summary judgment, and (4) did not engage in the proper analysis when it granted the defendant’s motion for summary judgment as to the counts of her complaint alleging violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and the Connecticut Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq. We agree with the plaintiff’s first two claims and, thus, reverse in part the judgment of the court.
See footnote 37 of this opinion.
With respect to the paragraphs of the plaintiff's complaint that are at issue in this appeal, the defendant pleaded either that the paragraph is "denied" or that the defendant "is without sufficient information to either admit or deny the allegations, and, therefore, denies the allegations and leaves the plaintiff to her proof." (Emphasis added.) As our Supreme Court has explained, "[t]he pleading of no knowledge or information to [the] allegations is in effect a denial." Postemski v. Watrous, 151 Conn. 183, 185, 195 A.2d 425 (1963).
The following facts and procedural history, as alleged in the complaint, construed in the light most favorable to the plaintiff as the nonmoving party, and contained in the record or as previously set forth by our Supreme Court in a prior action involving the parties, are relevant to our resolution of this appeal. In 2014, the plaintiff sustained serious bodily injuries when her motor vehicle collided with a vehicle operated by Joscelyn M. Smith, who failed to stop his vehicle at a stop sign. At the time of the collision, the plaintiff had a motor vehicle insurance policy with the defendant, which contained a provision for uninsured-underinsured motorist coverage. By letter dated November 4, 2014, the defendant was notified of the accident and of a potential claim for under-insured motorist benefits by the plaintiff.
"As part of its general business practices, the defendant investigated the collision to determine the cause and legal responsibility. In investigating the plaintiff’s claim, the defendant acquired the police report regarding the collision, the plaintiff’s recorded statement, and the recorded statement of Birbahadu Guman, a witness to the collision who was not listed in the police report. The report and the statements all noted Smith’s failure to stop at the stop sign. Based on this information, two claims specialists employed by the defendant both concluded that Smith was 100 percent liable for the collision and noted their findings in the claim file [file notes]. The defendant notified the plaintiff that her right to pursue her claim was conditioned on her providing an affidavit of no excess insurance." Dorfman v. Smith, 342 Conn. 582, 586, 271 A.3d 53 (2022).
On September 29, 2015, the plaintiff commenced an action against Smith (Smith action), who was underinsured. In December, 2015, the plaintiff moved for and was granted permission to cite in the defendant as an additional party in the Smith action for the purpose of seeking underinsured motorist benefits pursuant to her insurance policy with the defendant. The plaintiff alleged a claim against the defendant for breach of contract for failure to pay benefits. Before the defendant filed an answer to the complaint, the plaintiff settled her claim with Smith for the limit of his policy and withdrew her claim against him. The defendant received a signed release of the plaintiff’s claim against Smith for his policy limit of $50,000 on January 5, 2016.
Smith's insurance policy had a limit of $50,000, and the plaintiff’s damages exceeded that amount.
Under our common law and rules of practice, special defenses must be affirmatively pleaded by a party. See Coughlin v. Anderson, 270 Conn. 487, 501, 853 A.2d 460 (2004); see also Practice Book § 10-50.
"The defendant hired attorneys to represent it in connection with the plaintiff’s claim but deliberately withheld from them its file notes regarding the claim, Guman’s name and existence, and Guman’s recorded statement, even though it knew this information was necessary for its attorneys to prepare accurate responses to the plaintiff’s complaint and discovery requests. In answering the complaint [on May 17, 2016], the defendant pleaded that either it denied or did not have sufficient information to admit the allegations that Smith had failed to stop at a stop sign, causing the collision and the plaintiff’s resulting injuries. The defendant also asserted a special defense of contributory negligence, even though it knew this to be false. …
"[A]lthough Connecticut has adopted the doctrine of comparative negligence; see General Statutes § 52-572h (b); our statutes retain the term contributory negligence. See, e.g., General Statutes §§ 52-114 and 52-572h (b)." (Internal quotation marks omitted.) Stafford v. Roadway, 312 Conn. 184, 185 n.3, 93 A.3d 1058 (2014). Because the parties, the trial court, and our Supreme Court in Dorfman v. Smith, supra, 342 Conn. 582, 271 A.3d 53, all have used the term contributory negligence, we do so as well throughout this opinion. See Wager v. Moore, 193 Conn. App. 608, 611 n.2, 220 A.3d 48 (2019).
I also find it noteworthy that only seven months after it asserted that special defense— and more than twenty-one months before trial commenced—the defendant withdrew that defense. Accordingly, the relevant time period for purposes of evaluating the plaintiff’s vexatious litigation claim is that seven month window in which the defendant maintained the special defense of contributory negligence. In its appellate brief, the defendant avers that, "[a]t no time prior to the withdrawal of the special defense of contributory negligence on December 15, 2016, did the plaintiff take any depositions or disclose any experts as to liability for the subject accident." Although that allegation has no bearing on the issue of probable cause before this court, it may be relevant to the merits of the plaintiff’s vexatious litigation claim on remand. Also relevant is the fact that, on August 10, 2016, the plaintiff filed a request for the defendant to revise its contributory negligence special defense, arguing that certain allegations did "not set forth any facts" and that the plaintiff was "entitled to know the facts upon which [the defendant’s] assertion is based."
"The plaintiff’s attorney then noticed the defendant’s deposition to address, in part, the factual basis behind its answer and special defense. … Additionally, the defendant provided false responses to the plaintiff’s discovery requests, including that it did not know of the existence of any witnesses not listed in the police report and whether any recorded statements existed. In further response to the deposition notice, the defendant’s corporate designee testified under oath, admitting that‘[t]here was no basis in fact for [the defendant’s] accusation that [the plaintiff] was in any way responsible for causing the accident’ and that the defendant ‘had known that there was nothing [the plaintiff] could have done to avoid the accident …. ’ The defendant’s designee also admitted that the defendant was aware that Guman had witnessed the accident and made a recorded statement but failed to disclose this information in its interrogatory responses. On the basis of this conduct, the plaintiff allege[d] that the defendant ‘used intentional misstatements, intentional misrepresentations, intentionally deceptive answers, and violated established rules of conduct in litigation,’ and ‘knowingly and intentionally engaged in dishonest and sinister litigation practices by taking legal positions that were without factual support’ to try to prevent the plaintiff from receiving the benefits owed to her under the contract.
"The defendant’s designee also testified under oath that, in addition to this misconduct, ‘[the defendant] did not single out [the plaintiff] for special or unique treatment when it conditioned [her] receipt of [underinsured motorist] benefits [on] the provision of an affidavit of no excess insurance but was instead pursuing conduct that Liberty Mutual Corporation routinely takes in its handling of claims from other policyholders as well.’ Similarly, the defendant’s designee ‘testified under oath that [the defendant] did not single out [the plaintiff] for special or unique treatment when it responded falsely to [her] discovery requests.’
"Following this deposition, the trial court granted the plaintiff permission to amend her complaint to include claims for breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and violation of CUTPA based on a violation of CUIPA. The defendant moved to bifurcate the breach of contract claim from the extra-contractual claims, which the trial court granted. Prior to trial on the breach of contract claim, the defendant withdrew its special defense of contributory negligence. At trial on the breach of contract claim, the defendant admitted liability, and a jury awarded the plaintiff $169,928.
After accounting for the $50,000 that the plaintiff had received in settlement from Smith, the court reduced the amount of the jury award to $ 119,928.
It is well established that an appellate court may "take judicial notice of the court files in another suit between the parties, especially when the relevance of that litigation was expressly made an issue at this trial." McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).
"After the verdict, the defendant moved to dismiss the remaining claims for lack of subject matter jurisdiction on the ground that the litigation privilege barred those claims. The trial court granted the motion in part and denied it in part. Specifically, as to the plaintiff’s claims for breach of the implied covenant of good faith and fair dealing and negligent infliction of emotional distress, the trial court held that, because the claims were predicated on communications and statements filed in the course of and related to a judicial proceeding, the litigation privilege applied. For the same reason, as to the plaintiff’s claim for violation of CUTPA based on a violation of CUIPA, the trial court determined that the allegations regarding a business practice of responding falsely to discovery requests also were privileged. The trial court determined, however, that, to the extent the plaintiff’s CUTPA claim alleged that the defendant maintained an improper business practice of conditioning receipt of underinsured motorist benefits on the provision of an affidavit of no excess insurance, in violation of General Statutes § 38a-336c (c), the litigation privilege did not bar such a claim because this practice did not occur during the judicial proceedings but occurred before the action commenced. Thus, the trial court granted the motion to dismiss except as to the plaintiff’s CUTPA claim to the extent it was premised on a violation of § 38a-336c (c).
"The plaintiff appealed from the trial court’s decision on the defendant’s motion to dismiss, but [this court] dismissed the appeal for lack of a final judgment in light of the continued viability of the CUTPA claim. The plaintiff subsequently requested and received permission to amend her complaint to remove all allegations regarding the alleged violation of § 38a-336c (c). Because the alleged violation of § 38a-336c (c) was the only claim to have survived the motion to dismiss, the trial court determined that the withdrawal of these allegations effectively withdrew this theory of liability. Accordingly, the court rendered judgment in favor of the defendant on all of the plaintiff’s extracontractual claims. The plaintiff then appealed to [this court]. The appeal was then transferred to [our Supreme Court] pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1." (Footnotes added.) Dorfman v. Smith, supra, 342 Conn. at 587–90, 271 A.3d 53. Our Supreme Court affirmed the judgment dismissing the remaining claims on the ground of the litigation privilege. Id., at 586, 271 A.3d 53.
After the dismissal of her claims and during the pendency of the appeal in the Smith action to our Supreme Court, the plaintiff commenced the present action against the defendant on August 27, 2019. The complaint in the present action, filed September 3, 2019, has five counts. Count one alleges a claim of common-law vexatious litigation based on the following allegations concerning the defendant’s pleading conduct in the Smith action. Specifically, the plaintiff alleges that, despite the information and documentation the defendant had gathered during its investigation of the collision that was completed on May 26, 2015, in the Smith action, the defendant asserted in its initial answer, filed May 17, 2016, and continued to assert in its subsequent amended answer, filed August 3, 2016, that it lacked sufficient information to admit or deny the allegations of the plaintiff’s amended complaint in the Smith action that (1) Smith failed to stop or slow his vehicle when he entered the intersection, causing the collision with the plaintiff’s vehicle (paragraph 6 Smith action complaint), (2) the collision and resulting injuries to the plaintiff were caused by Smith’s negligence (paragraph 7 Smith action complaint), (3) the plaintiff sustained physical injuries, some of which were permanent in nature, as a direct and proximate cause of Smith’s negligence (paragraph 8 Smith action complaint), (4) the plaintiff incurred expenses for medical care and treatment as a result of Smith’s negligence, lost wages from missing work due to the injuries sustained in the collision and has been permanently impaired in her ability to enjoy life’s activities (paragraphs 9 through 11 Smith action complaint), (5) Smith was underinsured at the time of the collision (paragraph 15 Smith action complaint), (6) the plaintiff complied with her duties under her insurance policy with the defendant (paragraph 16 Smith action complaint), and (7) the defendant is liable to the plaintiff under the terms of that policy (paragraph 17 Smith action complaint). According to the allegations of count one of the complaint in the present case, the defendant refused to admit these allegations in the Smith action without probable cause and "with a malicious intent to unjustly vex and trou- ble [the plaintiff] and to force her to incur increased litigation costs."
The plaintiff's complaint in the present action alleges in relevant part:
"8. In [the Smith action], [the plaintiff] set forth the following factual allegations:
"a. As … Smith approached the aforementioned intersection, he failed to stop or slow his vehicle, and collided with [the plaintiff’s] vehicle as she proceeded through the intersection, causing the harms and losses set forth below;
"b. Said collision and the resulting injuries, damages and losses sustained by [the plaintiff] were directly and proximately caused by … Smith’s negligence and/or carelessness in that he:
"1. violated [General Statutes] § 14-301 by failing to stop his vehicle at the intersection;
"2. violated [General Statutes] § 14-301 by failing to yield the right of way to [the plaintiff];
"3. failed to keep the motor vehicle he was operating under reasonable and proper control;
"4. failed to keep a proper and reasonable lookout for other motor vehicles upon the road;
"5. failed to apply the brakes of the motor vehicle he was operating in time to avoid a collision, although by a proper and reasonable exercise of his faculties, he could have and should have done so;
"6. failed to turn the motor vehicle he was operating to the right or left so as to avoid a collision, although by a proper and reasonable exercise of his faculties, he could have and should have done so;
"c. As a direct and proximate result of said collision, caused by … Smith's negligence and/or carelessness, [the plaintiff] suffered physical injuries, some, or all of which are likely to be permanent in nature, including the following:
"1. injury to the cervical spine including bulging discs at C5-6 and C6-7 with nerve root impingement and radicular symptoms;
"2. right forearm injury;
"3. headaches;
"4. shock and trauma to the entire nervous system;
"5. permanent partial disability;
"d. As a further direct and proximate result of … Smith’s negligence and/or carelessness, [the plaintiff] was forced to expend sums for doctors. X-rays, medicines, diagnostic testing, extensive physical therapy and medical care and treatment, and will be caused to expend further such sums in the future;
"e. As a further direct and proximate result of … Smith’s negligence and/or carelessness, [the plaintiff] was forced to miss time from work and lose wages, and may miss further time from work in the future, to her financial detriment;
"f. As a further direct and proximate result of the negligence and/or carelessness of … Smith, [the plaintiff] has been permanently impaired in her ability to pursue and enjoy life’s activities and pleasure, including suffering emotional distress;
"g. At the time of the above-described accident, the other involved operator … Smith, was underinsured within the meaning of the law of the state of Connecticut and the contract of insurance between [the plaintiff] and the defendant …
"h. [The plaintiff] has complied with her duties under the insurance contract between herself and the defendant … and
"i. The defendant … is liable to [the plaintiff] pursuant to the terms of the above-mentioned insurance contract for damages resulting from the bodily injury sustained by [the plaintiff] which were not compensated for by the other involved operator’s insurance coverage."
Although the plaintiff’s complaint in the prior action alleged a breach of contract on the part of the defendant, that count was premised on the purported negligence of the tortfeasor, Joscelyn M. Smith, in whose shoes the defendant stood as a party to that action. See Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 732-34, 778 A.2d 899 (2001) (plaintiff’s uninsured motorist insurance carrier acts as surrogate for uninsured tortfeasor and stands in shoes of tortfeasor): Anderson v. Peerless Ins. Co., Superior Court, judicial district of Middlesex, Docket No. 66861, 1993 WL 34388 (February 3, 1993) (8 Conn. L. Rptr. 728, 730) ("the same defenses that the uninsured [tortfeasor] had are also legitimate defenses for the carrier to invoke"). To prevail in her underinsured motorist action against the defendant, the plaintiff was required to establish negligence on the part of Smith. See Collins v. Colonial Penn Ins. Co., supra, at 741, 778 A.2d 899 ("[w]ithout proof of the negligence of a tortfeasor … there can never be a recovery of uninsured motorist benefits"); cf. Enviro Express, Inc. v. AID Ins. Co., 279 Conn. 194, 204, 901 A.2d 666 (2006) ("[U]nderinsured motorist payments are not purely contractual in nature because such payments operate in part as a liability insurance surrogate for the underinsured motorist third party tortfeasor. … [U]nderinsured motorist benefits are sui generis. They are contractual, but they depend on principles of tort liability and damages." (Internal quotation marks omitted.)); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 26 n.9, 699 A.2d 964 (1997) (rejecting claim "that underinsured motorist payments are purely contractual in nature" and emphasizing that "underinsured motorist payments are … exclusively premised upon a third party’s tort liability" (emphasis altered)); Miller v. State Farm Mutual Automobile Ins. Co., 993 A.2d 1049, 1055 (Del. 2010) ("the determination of the insured’s damages in an underinsured motorist claim is governed not by contract principles, but by tort law"). For that reason, the trial court correctly observed that "[t]he essential characteristic of [the plaintiff’s] underlying underinsured motorist claim is that of an action in negligence."
Count one further alleges that the defendant amended its answer in the Smith action yet again on December 15, 2016, this time admitting the allegation in paragraph seven of the amended complaint in the Smith action that "the accident was caused by … Smith’s failure to keep a proper and reasonable lookout for other motor vehicles upon the roadway" and removing the special defense of contributory negligence. In that amended answer, the defendant also admitted certain allegations in paragraphs 3 and 5 of the amended complaint concerning the location and direction of travel of the vehicles driven by the plaintiff and Smith on the day of the collision, as well as the allegation in paragraph 16, stating: "As to the allegations in paragraph 16, the defendant admits that the plaintiff has complied with her duties to date but the policy requires the plaintiff to comply with continuing duties and obligations." That amended answer, however, continued to assert that the defendant lacked sufficient information to admit or deny the remaining allegations outlined in the previous paragraph. Thereafter, on April 12, 2017, the plaintiff filed a second amended complaint in the Smith action in which she withdrew count one against Smith and added counts for breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and a violation of CUTPA based on a violation of CUIPA. Count two of the second amended complaint in the Smith action, the breach of contract count against the defendant, remained the same.
On June 14, 2017, the defendant filed an answer to the second amended complaint in the Smith action, this time changing its answers to certain allegations in count two from being without sufficient information to admit or deny the allegation to denials. For example, in its June 14, 2017 answer, the defendant denied the allegation in paragraph 7 that the collision was caused by Smith’s negligence, even though, in its December 15, 2016 amended answer, it admitted that "the accident was caused by … [Smith’s] failure to keep a proper and reasonable lookout .… " The defendant also denied allegations that Smith had failed to stop at a stop sign and collided with the plaintiff’s vehicle as it proceeded through the intersection, that Smith was underinsured and that the plaintiff had complied with her duties under her insurance contract with the defendant, even though in its previous answer it admitted that the plaintiff had complied with her duties as of that date.
The record shows that, on December 27, 2017, the plaintiff served the defendant with a request for admissions. The defendant responded on January 25, 2018, admitting allegations that "[t]he September 27, 2014 motor vehicle collision … was directly and proximately caused by … Smith’s negligence, in that he … fail[ed] to stop his vehicle at the intersection"; "[t]he subject collision was directly and proximately caused by … Smith’s negligence, in that he … fail[ed] to yield the right-of-way to [the plaintiff]; and "[a]s a direct and proximate result of … Smith’s negligence in the subject collision, [the plaintiff] suffered 'bodily injury’ as defined by her auto insurance policy with [the defendant] . …"
The majority’s analysis centers on a "determination of whether Connecticut follows" § 674 of the Restatement (Second) of Torts. For two reasons, I respectfully disagree with that approach. First, on an elemental level, it is axiomatic that such secondary sources are not binding on the courts of this state and properly are used to inform our discussion of a matter of state law, rather than drive it— particularly when statutory interpretation is at issue. See, e.g., Stamford Property Holdings, LLC v. Jashari, 218 Conn. App. 179, 198 n. 12, 291 A.3d 117 (Restatement "is nonbinding secondary authority"), cert. denied, 347 Conn. 901, 296 A.3d 840 (2023); Matter of Featherfall Restoration, LLC, 261 Md. App. 105, 137–38, 311 A.3d 437 (Restatement "is merely a secondary source providing a survey of trends in common law on a national scale"), cert. granted, 487 Md. 264, 317 A.3d 913 (2024); Gerling Konzem Allgemeine Versicherungs AG v. Lawson, 472 Mich. 44, 57, 693 N.W.2d 149 (2005) ("the duty of this [c]ourt is to construe the language of Michigan's statutes before turning to secondary sources such as the Restatements"). Second, the question of whether Connecticut has adopted § 674 of the Restatement (Second) of Torts was never raised by any party, before either the trial court or this court. See Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014) ("[o]ur case law and rules of practice generally limit [an appellate] court’s review to issues that are distinctly raised at trial" (internal quotation marks omitted)). Although this court ordered the parties to file simultaneous supplemental briefs following oral argument in this appeal, we likewise did not raise that issue. While the plaintiff does cite to § 674 in one paragraph of her supplemental brief, she does not contend that Connecticut has adopted that Restatement provision. Perhaps most importantly, the defendant in this case had no notice of that issue and was never provided an opportunity to be heard thereon, in contravention of the mandate of our Supreme Court in Blumberg Associates Worldwide, Inc. See id., at 128, 84 A.3d 840. Respectfully, I disagree with the majority that an isolated reference to § 674 in one paragraph of the plaintiff’s supplemental brief before this court—to which the defendant had no opportunity to reply—properly "put the defendant on notice" that the issue of whether Connecticut follows § 674 was being raised in this appeal.
In count one of the complaint in the present case, the plaintiff also alleges that, in the Smith action, the defendant "asserted a special defense claiming that [the plaintiff’s] injuries were caused by her own negligence, although its own investigation concluded that … Smith was TOO [percent] liab[le]’ for the accident, noting that ‘witnesses confirm’ the events and that vehicle photographs were ‘very damning’ of … Smith’s responsibility for the accident." The plaintiff further alleges that the defendant asserted its special defense without probable cause to do so and "with a malicious intent to unjustly vex and trouble [the plaintiff] and to force her to incur increased litigation costs." Finally, in count one the plaintiff alleges that the prior proceeding terminated in her favor and that the "defendant’s prosecution of false pleadings that lacked probable cause … was done with malicious intent and caused [her] to suffer … damages …. "
Count two of the complaint in the present case alleges a claim for statutory vexatious litigation without malice pursuant to General Statutes § 52-568 (1), and count three alleges a claim for statutory vexatious litigation with malice pursuant to § 52-568 (2). The substantive allegations in these counts parallel those of count one, with the exception of the allegations of malice, which are absent from count two. Counts four and five allege violations of CUTPA based on violations of CUIPA.
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."
General Statutes § 1-1 (a) provides: "In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly."
In September, 2020, the defendant filed a motion for summary judgment as to all counts of the complaint, arguing that there was no genuine issue of material fact as to any of the plaintiff’s claims. In its memorandum of law in support of its motion, the defendant argued that, (1) even though counts one through three purport to allege claims for vexatious litigation, they are "nothing more than a regurgitation of the claims that have previously been dismissed," for which the defendant is entitled to absolute immunity under the litigation privilege; (2) because the plaintiff is "rehashing her claim that the pleadings of counsel were improper … [a]ny such claim is barred by the doctrine of res judicata"; (3) the vexatious litigation claims are unfounded because the defendant had probable cause for its pleadings in the Smith action and there was no malice on its part; (4) it relied on counsel to prepare its answers in the Smith action; and (5) the CUTPA/CUIPA claims were barred by absolute immunity under the litigation privilege, as determined previously by our Supreme Court. In support of its motion for summary judgment, the defendant submitted an affidavit from Michael DeStefano, a complex claim resolution specialist for the defendant, as well as portions of the transcript of DeStefano’s deposition testimony, which deposition was taken in connection with the Smith action. In response to the defendant’s motion for summary judgment, the plaintiff filed an objection and supporting memorandum of law, along with an affidavit from her attorney, Leonard M. Isaac.
We note that DeStefano’s affidavit references exhibits that were not filed with the affidavit in the present case. Those exhibits include a letter of representation in the Smith action from the plaintiff’s attorney, indicating that the plaintiff’s claim likely would exceed the $50,000 limit of Smith’s policy and that her attorney had demanded the full amount of Smith’s policy, along with affidavits of no excess insurance; an affidavit from Smith in which he attested that he was involved in the motor vehicle accident with the plaintiff and had no other applicable automobile insurance; the defendant’s file notes concerning the plaintiff's claim for underinsured motorist benefits, which indicate that the plaintiff had complied with her duties under the insurance contract, the plaintiff’s claimed injuries, that Smith was "100 [percent] liable for failure to obey [a] … stop sign" and that "there was nothing [the plaintiff] could have done to avoid this loss"; and the defendant’s supplemental responses to the plaintiff’s discovery requests in the Smith action, in which the defendant corrected a prior mistaken response and indicated the name of a witness who had provided a recorded statement. Those exhibits, which have not been filed in the present action, previously were filed in the Smith action. Although the trial court in the present case took judicial notice of the Smith action for the purpose of setting forth the factual history of the present case, which stems from the Smith action; see footnote 9 of this opinion; the court gave no indication that it took these exhibits from the Smith action into consideration in deciding the present motion for summary judgment. Nevertheless, even if we consider these exhibits as evidence submitted by the defendant in support of its motion for summary judgment, they fail to demonstrate the absence of any genuine issue of material fact relating to the issue of probable cause and, in fact, tend to support the plaintiff’s allegations.
As our Supreme Court explained, "[i]t has long been understood that Practice Book provisions are not intended to enlarge or abrogate substantive rights. … [T]his court has interpreted provisions of the Practice Book through the lens of the common law." (Citations omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 44, 970 A.2d 656, cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009).
[1] In a memorandum of decision dated March 7, 2022, the court granted the defendant’s motion for summary judgment as to all counts. In doing so, the court concluded that the defendant’s pleadings in the Smith action "were filed with probable cause." In light of its determination regarding probable cause, the court did not address the defendant’s other arguments. With respect to the plaintiff’s claim that she was deprived of the opportunity to conduct discovery, the court took judicial notice of an entry in the Smith action "in which [the defendant] asserted, without contest, that four depositions of [the defendant’s] personnel, with attendant requests for production had been taken. The depositions took over twenty hours. The court rejects this argument." The court rendered summary judgment in the defendant’s favor, and this appeal followed. Additional facts and procedural history will be set forth as necessary.
Judge Cesar A. Noble presided over the present action and the Smith action. In his memorandum of decision granting the defendant’s motion for summary judgment in the present case, he stated that the facts set forth in his decision were "derived from the affidavit of … DeStefano, a complex claim resolution specialist employed by [the defendant] familiar with the claim and the court’s judicial notice of this file and the … file [in the Smith action]." "There is no question that the trial court may take judicial notice of the file in another case …." (Internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003). Neither party has taken issue with the court taking judicial notice of the file in the Smith action for the purpose of setting forth the undisputed factual history of this case.
Section 674 of the Restatement (Second) of Torts provides: "One who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if (a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim in which the proceedings are based, and (b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought." (Emphasis added.) 3 Restatement (Second), Torts § 674, p. 452 (1977). To be clear, I agree with the proposition that an action for vexatious litigation should lie against a party that purposely engages in conduct intended to needlessly foster protracted litigation without probable cause. I disagree that a defendant’s filing of a general denial to a paragraph of a plaintiff’s complaint should qualify as conduct exposing the defendant to an action for vexatious litigation.
Specifically, the court stated: "In the present case, as argued by [the defendant], ‘it was necessary to fully substantiate facts and information through the course of discovery and, as that was done, the complaint was amended to address what had been substantiated. Given the intrinsic uncertainty of the nature of a claim of injuries proximately caused by another’s negligence, [the defendant] had probable cause to answer the complaint in the manner in which it did."
The legislative history also suggests that the wording of P.A. 86-338 was modeled on a similar Wisconsin statute. In a February 26, 1986 letter to the Judiciary Committee, Judy A. C. Edwards, Executive Vice President of the Connecticut Society of Architects, opined that "courts are being used in a way which generates unnecessary litigation and burdens innocent parties with proving that they should not have been sued in the first place." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1986 Sess., p. 295. She continued: "The Wisconsin statute, which is enclosed, follows an example of legislation encouraging courts to award costs and attorney[’s] fees to the successful party when an action or a defense is found to have been brought frivolously." Id. A copy of that statute—Wis. Stat. § 814.025 (1977)—was admitted into the record of the Judiciary Committee’s hearing. Like § 52-568, Wis. Stat. § 814.025 distinguishes two classes of litigants subject thereto and provides in relevant part: "If an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense, or cross complaint commenced, used or continued by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs … and reasonable attorney fees …. " Id., p. 298. That Wisconsin statute was repealed in 2005.
[2–5] We first set forth our well established standard of review of a court’s decision granting a motion for summary judgment. "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. … The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact …. [T]he party moving for summary judgment is held to a strict standard. [The moving party] must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. … A material fact is a fact that will make a difference in the result of the case… . Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary." (Internal quotation marks omitted.) Barbara v. Colonial Surety Co., 221 Conn. App. 337, 357–58, 301 A.3d 535, cert. denied sub nom. Colonial Surety Co. v. Phoenix Contracting Group, 348 Conn. 924, 304 A.3d 443 (2023). "[I]ssue-finding, rather Than issue-determination, is the key to the procedure…. [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment…. [Its] function is not to decide issues of material tact, but rather to determine whether any such issues exist. …
[6] "It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. … [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. …
[7, 8] "An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition …. On a motion by [the] defendant for summary judgment, the burden is on [the] defendant to negate each claim as framed by the complaint …. It necessarily follows that it is only [o]nce [the] defendant’s burden in establishing [its] entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial…. Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citation omitted; internal quotation marks omitted.) Gibilisco v. Tilcon Connecticut, Inc., 203 Conn. App. 845, 858–59, 251 A.3d 994, cert. denied, 336 Conn. 947, 251 A.3d 77 (2021).
I
[9–13] Before we address the plaintiff’s claims on appeal, we first must address a claim raised by the defendant in its appellate brief. Specifically, the defendant claims that the plaintiff’s remedy for an "untrue or unfounded allegation in a pleading is [General Statutes] § 52-99 and Practice Book § 10-5, not an action for vexatious litigation." (Footnotes added.) In making this claim, the defendant asserts that an action for vexatious litigation cannot be based on allegedly false answers to a complaint in a prior action. The defendant’s claim does not relate to the portions of the vexatious litigation counts based on the defendant’s special defense of contribu- tory negligence in the Smith action, as the defendant acknowledges that "[t]he essence of vexatious litigation is that … a defendant should not assert a defense to an action without probable cause." (Emphasis omitted.) Because the defendant does not argue that a vexatious litigation action cannot be premised on a special defense filed in a prior action without probable cause, we limit our discussion to the question of whether such an action can be based on allegedly false answers to a complaint in a prior action, which has never previously been addressed by the appellate courts of this state. We address this claim first because, if the allegations in the vexatious litigation counts pertaining to the defendants alleged conduct in filing false answers in the Smith action do not properly set forth a cause of action for vexatious litigation, we need not determine whether the court’s finding of probable cause related thereto was proper. "This claim requires us to interpret the plaintiff’s pleadings, which is a question of law subject to plenary review." Alpha Beta Capital Partners, L.P. v. Pursuit Investment Management, LLC, 193 Conn. App. 381, 419, 219 A.3d 801 (2019), cert. denied, 334 Conn. 911, 221 A.3d 446 (2020), and cert. denied, 334 Conn. 911, 221 A.3d 446 (2020). A
General Statutes § 52-99 provides: "Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided no expenses for counsel fees shall be taxed exceeding five hundred dollars for any one offense."
Although § 52-99 was amended by No. 22-26, § 43, of the 2022 Public Acts, that amendment has no bearing on this appeal. For simplicity, we refer to the current revision of the statute.
In her supplemental brief to this court, the plaintiff posits that, in Dorfman v. Smith, supra, 342 Conn. 582, 271 A.3d 53, our Supreme Court "indicated that a vexatious litigation claim can be premised on [the defendant’s] answers" in the prior action between the parties. I disagree. The statements referenced by the plaintiff arose in the context of the court’s discussion of whether the trial court properly had applied the litigation privilege to a claim for breach of the implied covenant of good faith and fair dealing. See id., at 596–612, 271 A.3d 53. During that discussion, the court stated that, "even if the allegations in the complaint are sufficient to support a claim for vexatious litigation or abuse of process but such claims are not raised, these allegations do not remove immunity from a claim that falls within the scope of the litigation privilege." (Emphasis added.) Id., at 597, 271 A.3d 53. The court later noted: "[P]arties and their counsel who abuse the process by bringing unfounded actions for personal motives are subject to civil liability for vexatious suit or abuse of process. … Importantly, in the present case, upon a prior action terminating in her favor, the plaintiff could have brought a lawsuit for vexatious litigation." (Citation omitted; internal quotation marks omitted.) Id., at 612, 271 A.3d 53. At the same time, the court emphasized that "[t]he fact that the plaintiff alleged facts that may have been sufficient to support a claim for vexatious litigation does not prevent the litigation privilege from applying to the claim alleged." (Emphasis added.) Id., at 607, 271 A.3d 53. "It is axiomatic that an appellate decision stands only for those issues presented to, and considered by, the court in that particular appeal." Dept. of Public Safety v. Freedom of Information Commission, 103 Conn. App. 571, 582 n.10, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). The issue of whether, as a matter of law, a statutory or common-law action for vexatious litigation may be predicated on a defendant’s general denials to a complaint in a prior action was neither presented to nor decided by our Supreme Court in Dorfman v. Smith, supra, 342 Conn. 582, 271 A.3d 53. The plaintiff’s reliance on that case, therefore, is misplaced.
Practice Book § 10-5 provides in relevant part: "Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the judicial authority, as may have been necessarily incurred by the other party by reason of such untrue pleading …. "
As the Supreme Court of California noted one-half century ago, "[t]he judicial process is adversely affected by a maliciously prosecuted cause not only by the clogging of already crowded dockets, but by the unscrupulous use of the courts by individuals … as instruments with which to maliciously injure their fellow men." (Internal quotation marks omitted.) Bertero v. National General Corp., 13 Cal. 3d 43, 51, 529 P.2d 608, 118 Cal. Rptr. 184 (1974) (en banc).
Although the defendant never raised this as a ground in support of its motion for summary judgment, after the parties filed their memoranda of law in support of and in opposition to the motion for summary judgment and the trial court heard argument on the motion, the court ordered the parties to file supplemental memoranda pertaining to the following issues: (1) "Does the commonlaw tort of vexatious litigation require the alleged tortfeasor to have commenced an action or may a defendant be liable by virtue of his or her denial of facts alleged in a prior action?" (2) "Does the denial of facts alleged in a prior action fall within the ambit of liability for one who ‘asserts a defense to any civil action’ as provided in General Statutes § 52-568?" And (3) "Does the denial of the factual allegations of a paragraph of a complaint, signifying an intention ‘to controvert’ the allegations; see [Practice Book] § 10-46; constitute grounds for vexatious litigation?" Both parties complied with the court’s order. Nevertheless, the trial court never addressed this issue in its decision granting the motion for summary judgment, which rested on its probable cause finding. Following oral argument before this court, we issued an order for the parties to file supplemental appellate briefs on this issue as well, and the parties have so complied. As a general rule, "Connecticut appellate courts will not address issues not decided by the trial court…. Bayview Loan Servicing, LLC v. Gallant, 209 Conn. App. 185, 197 n.7, 268 A.3d 119 (2021). [B]ecause our review is limited to matters in the record, we … will not address issues not decided by the trial court. … [O]nly in [the] most exceptional circumstances can and will [an appellate court] consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court. … Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014)." (Citation omitted; emphasis in original; internal quotation marks omitted.) In Blumberg Associates Worldwide, Inc., our Supreme Court explained that, "unless all parties agree to review of the unpreserved claim or the party raising the claim cannot prevail, the reviewing court should provide specific reasons, based on the exceptional circumstances of the case, to justify a deviation from the general rule that unpreserved claims will not be reviewed." Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, at 160–61, 84 A.3d 840. In the present case, as we stated, we ordered the parties to file supplemental briefs on this issue, and neither party has objected to our consideration of it in deciding this appeal. Moreover, our review in this appeal from the granting of a motion for summary judgment is plenary, this issue involves a question of law, the party raising the claim cannot prevail, and we provided the parties with a meaningful opportunity to address the issue. For those reasons, we proceed to make a determination with respect to this issue without setting forth any exceptional circumstances warranting our review. See State v. Russo, 221 Conn. App. 729, 755–56, 303 A.3d 279 (2023), cert. denied, 348 Conn. 938, 307 A.3d 273 (2024).
See, e.g., Ritter v. Ritter, supra, 381 Ill. at 555, 46 N.E.2d 41 ("[a] 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 … even though the wrongful conduct of the defendant is willful, intentional, malicious or fraudulent"); Baxter v. Brown, 83 Kan. 302, 304, 111 P. 430 (1910) ("The question is this: A defendant is haled into court and required to defend against claims set forth against him in a civil action. Without asking any affirmative relief whatever, he simply files a general denial and verifies it. Although there may be many things alleged in the petition as true that he knows are true, and although he may know that it will involve the plaintiff in considerable expense to prove and establish the truth thereof, is he responsible for making such defense? … In this state, and quite generally in other states, it has been held that damages for malicious prosecution of a civil action as well as for a malicious criminal charge may be recovered; expenses incurred and damage to business, and even exemplary damages have been allowed in such cases. We have failed, however, to find any authority for assessing damages for a malicious defense of an action.").
We first address this issue with respect to the common-law vexatious litigation claim in count one of the complaint. In her supplemental brief to this court, the plaintiff makes a number of arguments in support of her assertion that a common-law vexatious litigation claim can be premised on a party’s answer to a complaint. First, she points to the language in our Supreme Court’s decision in the prior appeal in this matter, in which the court stated that "the plaintiff could have brought a lawsuit for vexatious litigation." Dorfman v. Smith, supra, 342 Conn. at 612, 271 A.3d 53. Second, she relies on the language of the Restatement (Second) of Torts, § 674, in support of her claim that a party who contributes materially to and prolongs or continues litigation without probable cause can be liable for vexatious litigation. See 3 Restatement (Second), Torts § 674, p. 452 (1977). According to the plaintiff, "[a] defendant unnecessarily prolongs litigation by filing an answer in which it denies allegations known to be true, and/or asserts affirmative defenses or counterclaims that lack any basis in fact." In its supplemental brief, the defendant counters that "none of the reported cases hold[s] that mere allegations in a pleading can form the basis of such an action," and that the plaintiff’s remedy for untrue pleadings is § 52-99 and Practice Book § 10-5, not a vexatious litigation action. Neither party has directed this court to Connecticut case law squarely on point with the issue, either in support of or against it, nor has our research revealed any such case.
Our research has uncovered one Superior Court decision that involved claims for statutory vexatious litigation premised on a party’s answer and special defenses filed in a prior action. In Silano v. Verespy, Superior Court, judicial district of Fairfield, Docket No. CV-18-6072543-S, 2019 WL 2369523 (April 30, 2019) (68 Conn. L. Rptr. 436, 436), the court, Bellis, J., denied a motion to strike various counts of a complaint alleging claims for statutory vexatious litigation. Specifically, the "action stem[med] from the alleged vexatious litigation by the defendant … through which the defendant allegedly engaged in statutory vexatious litigation … in a prior action against the plaintiff … when he filed his answer and special defenses and his motion for summary judgment." Id. As to the vexatious litigation counts based on the answer and special defenses, the defendant sought to strike those counts on the basis of the doctrine of res judicata, which the court determined was not properly raised by way of a motion to strike. Id., at 438. The court in Silano, therefore, never addressed the issue before us in this appeal.
In alleging that the defendants "took an active part in the initiation, continuation, or procurement" of the defense at issue, the plaintiff’s complaint mirrored the relevant language of § 674 of the Restatement (Second) of Torts.
[14] In answering this question, we must determine (1) whether Connecticut follows § 674 of the Restatement (Second) of Torts, and permits a cause of action for common-law vexatious litigation for a party’s conduct in continuing litigation without probable cause, (2) if so, what type of conduct constitutes a "continuation" of civil proceedings, (3) whether the allegations of the complaint properly assert a cause of action for vexatious litigation with respect to the defendant’s alleged bad faith pleading in its answers in the Smith action, and (4) whether § 52-99 and Practice Book § 10-5 are a party’s exclusive remedy for untrue pleadings. We address these questions in turn.
We disagree with the concurring and dissenting opinion’s conclusion that, by addressing and answering this question, we are violating Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 160–61, 84 A.3d 840 (2014), because, according to the concurring and dissenting opinion, the defendant was not given notice of the issue and an opportunity to be heard thereon. The plaintiff relied on § 674 of the Restatement (Second) of Torts and the continuation theory set forth therein in raising that claim in her supplemental brief to this court, and she did so as well in her supplemental brief to the trial court, which put the defendant on notice that such a claim was being raised. Moreover, "[a]lthough the Restatement (Second) of Torts is not binding precedent, our appellate courts have frequently looked to it in outlining the contours of tort law in this state." (Internal quotation marks omitted.) Kenneson v. Eggert, 176 Conn. App. 296, 308 n.4, 170 A.3d 14 (2017); see also Allen v. Cox, 285 Conn. 603, 613, 942 A.2d 296 (2008); Pestey v. Cushman, 259 Conn. 345, 358, 788 A.2d 496 (2002); Clohessy v. Bachelor, 237 Conn. 31, 38–39, 46, 675 A.2d 852 (1996); Northeast Building Supply, LLC v. Morrill, 224 Conn. App. 137, 150, 312 A.3d 138 (2024); Reiner v. Reiner, 214 Conn. App. 63, 73, 279 A.3d 788 (2022); Kumah v. Brown, 130 Conn. App. 343, 352 and n.4, 23 A.3d 758 (2011); Stohlts v. Gilkinson, 87 Conn. App. 634, 654, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005). Indeed, as this court recently has stated, "in defining the parameters of a vexatious litigation claim in Connecticut, our Supreme Court has often looked to the Restatement (Second) of Torts, which describes, among other things, torts relating to unjustifiable litigation, including the torts of malicious prosecution, wrongful use of civil proceedings, and abuse of process. See 3 Restatement (Second), [supra, §§ 653 through 682, pp. 406–75]; see also DeLaurentis v. New Haven, [220 Conn. 225, 256, 597 A.2d 807 (1991)]; Blake v. Levy, [191 Conn. 257, 264, 464 A.2d 52 (1983)]." (Footnote omitted.) Northeast Building Supply, LLC v. Morrill, supra, at 150, 312 A.3d 138. Finally, we gave the defendant a meaningful opportunity to provide a supplemental brief concerning the issue of "whether an action for vexatious litigation can be premised on a party’s answer to a complaint in a prior action." The fact that the defendant, in answering that question, did not cite to the Restatement (Second) does not preclude this court from looking to that resource for guidance on the issue, as the Restatements of the law "seek to compile and distill the common law that exists"; Schwerin v. Ratcliffe, 335 Conn. 300, 326, 238 A.3d 1 (2020); and are not the law. See Reiner v. Reiner, supra, at 76 n. 11, 279 A.3d 788; see also Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 179 n.26, 72 A.3d 929 (2013) (even though parties made only passing reference to several Restatement provisions and did not rely expressly on § 302B of Restatement (Second) of Torts, court relied on § 302B because its underlying principles informed arguments parties made on appeal and accurately reflected state of law on issues in case).
Like the present case, Young involved a defendant insurer that was not the most sympathetic party. Compare Young v. Allstate Ins. Co., supra, 119 Haw. at 407, 198 P.3d 666 ("By dissuading claimants from seeking legal counsel, [the defendant] was able to prey upon injured and unrepresented claimants' trust and lack of knowledge and to deny or settle claims for a fraction of their value. … If a settlement offer were not accepted or the claimant hired an attorney, [the defendant] would fully litigate virtually every claim, irrespective of its insured’s liability or the real physical harm and value of the injuries suffered by the claimant. [The defendant] thereby sought to subject claimants to unnecessary and oppressive litigation and expenses …." (Footnote omitted.)), with Dorfman v. Smith, supra, 342 Conn. at 588, 613, 271 A.3d 53 (noting that defendant’s corporate designee testified under oath that defendant " ‘did not single out [the plaintiff] for special or unique treatment when it conditioned [her] receipt of [underinsured motorist] benefits [on] the provision of an affidavit of no excess insurance but was instead pursuing conduct that [the defendant] routinely takes in its handling of claims from other policyholders as well’ "Before we address the and that defendant " ‘did not single out [the plaintiff] for special or unique treatment when it responded falsely to [her] discovery requests’ "). In upholding the judgment rendered in favor of the defendant on the plaintiff's claims of malicious defense, abuse of process, and breach of an assumed duty of good faith and fair dealing, the Supreme Court of Hawaii nonetheless recognized that the legal issues presented in that case were larger than any one party. Cf. In re Purdue Pharma L.P., Docket No. 22-CV-4134 (CS), 2023 WL 5950707, *5 (S.D.N.Y. September 13, 2023) ("[the court’s] role is to apply the law, and that sometimes means that a sympathetic party is not entitled to relief").
1
[15, 16] Our determination of whether Connecticut follows § 674 of the Restatement (Second) of Torts must be made with due regard for our well established case law concerning vexatious litigation. "In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. … [T]o establish a claim for vexatious litigation at common law, one must prove want of probable cause, malice and a termination of suit in the plaintiff’s favor. … The statutory cause of action for vexatious litigation exists under … § 52-568, and differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages." (Internal quotation marks omitted.) Elwell v. Kellogg, 220 Conn. App. 822, 835, 299 A.3d 1166, cert. denied, 348 Conn. 927, 304 A.3d 861 (2023); see also Forsstrom v. Smanik, Superior Court, judicial district of Windham, Docket No. CV-12-6005759-S. 2013 WL 3316136 (November 20, 2014) ("The term ‘vexatious litigation’ applies to such behavior on the part of a plaintiff in the first suit, as well as to such conduct on the part of a prior defendant—although, as to defendants, the unacceptable conduct is sometimes referred to as ‘vexatious defense.’ Suits against those who were plaintiffs in the first instance appear to outnumber those against former defendants by some order of magnitude, and few of the latter have yielded lengthy decisions; it is undisputed, nevertheless, that the two categories are mirror images of each other and analytically indistinguishable …. " (Citation omitted.)).
[17–19] "A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecu- tion suit ordinarily implies a prior criminal complaint." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007). "[T]he purpose of [an] action [for vexatious litigation] is to compensate a wronged individual for damage to his reputation and to reimburse him for the expense of defending against the unwarranted action. … Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329 (2008)." (Internal quotation marks omitted.) Kazemi v. Allen, 214 Conn. App. 86, 104, 279 A.3d 742 (2022), cert. denied, 345 Conn. 971, 286 A.3d 906 (2023). "Permitting recovery in a suit for vexatious litigation promotes the ‘interest in making the courts available for the resolution of disputes while discouraging the use of litigation simply as a means to harm others.’ Simply put, liability for vexatious litigation aims to penalize litigants and attorneys who file or defend baseless claims solely with the intention to frustrate the opposing party, monetarily or otherwise." (Footnote omitted.) S. Gruber, "A Lawyer’s Guide to Vexatious Litigation in Connecticut," 88 Conn. B.J. 184, 187 (2015).
This court recently has noted "that many states, unlike Connecticut, refer to vexatious litigation claims in the civil context as 'malicious prosecution’ claims. See, e.g., Chervin v. Travelers Ins. Co., 448 Mass. 95, 102–103, 858 N.E.2d 746 (2006) (‘[t]he tort [of malicious prosecution] is not confined to the wrongful initiation of criminal proceedings; it may be maintained for the unjustifiable initiation of a civil action’ …)); Burt v. Smith, 181 N.Y. 1, 5, 73 N.E. 495 (1905) (‘[a]n action for malicious prosecution is usually based upon an arrest in criminal proceedings, although it may be founded upon a civil action when commenced simply to harass and oppress the defendant’), appeal dismissed, 203 U.S. 129, 27 S. Ct. 37, 51 L. Ed. 121 (1906); Ims v. Portsmouth, 32 A.3d 914, 922 (R.I. 2011) (defining malicious prosecution ‘as a suit for damages resulting from a prior criminal or civil legal proceeding that was instituted maliciously and without probable cause, and that terminated unsuccessfully for the plaintiff therein’ …))." Northeast Building Supply, LLC v. Morrill, 224 Conn. App. 137, 154 n.9, 312 A.3d 138 (2024).
The term "malicious defense" is something of a misnomer, since it applies to the conduct of both defendants and plaintiffs in responding to claims, counterclaims, cross claims, special defenses and the like.
Pursuant to § 674 of the Restatement (Second) of Torts, "[o]ne who takes an active part in the initiation, continuation or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings if (a) he acts without probable cause, and primarily for a purpose other than that of securing the proper adjudication of, the claim in which the proceedings are based …. " (Emphasis added.) 3 Restatement (Second), supra, p. 452. As comment (c) to § 674 of the Restatement explains, "one who continues a civil proceeding that has properly been begun or one who takes an active part in its continuation for an improper purpose after he has learned that there is no probable cause for the proceeding becomes liable as if he had then initiated the proceeding." Id., comment (c), p. 453. For purposes of this opinion, we refer to this as the continuation theory. In DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991), our Supreme Court stated: "Most courts now agree with the Restatement (Second) of Torts, § 680, which permits liability for vexatious ‘initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other.’ " (Emphasis added.) Id.; see 3 Restatement (Second), supra, § 680, p. 468. Although the court in DeLaurentis expressed agreement with § 680 of the Restatement (Second) of Torts in recognizing that a vexatious litigation action may be based on a prior administrative, rather than civil, proceeding that terminated in the plaintiff’s favor; see Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007); § 680 includes the identical "initiation, continuation or procurement of civil proceedings" language set forth in § 674 of the Restatement, which is not limited to administrative proceedings. We cannot think of any reason why our Supreme Court, having acknowledged its agreement with this theory for vexatious litigation claims based on prior administrative proceedings, would not do so in the context of such claims based on prior civil proceedings. See Northeast Building Supply, LLC v. Morrill, 224 Conn. App. 137, 150, 312 A3d 138 (2024) ("in defining the parameters of a vexatious litigation claim in Connecticut, our Supreme Court has often looked to the Restatement (Second) of Torts"); see also Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52 (1983) (referring to comment (j) of § 674 of Restatement (Second) of Torts regarding requirement of vexatious litigation claim that plaintiff allege that prior litigation terminated in plaintiff’s favor and purpose that requirement serves).
The elements of a claim for wrongful use of civil proceedings under § 674 of the Restatement (Second) of Torts are similar to those of the tort of vexatious litigation. See Northeast Building Supply, LLC v. Morrill, 224 Conn. App. 137, 150 n.7, 312 A.3d 138 (2024).
See, e.g., Young v. Allstate Ins. Co., supra, 119 Haw. at 418, 198 P.3d 666 ("only one jurisdiction has recognized the tort of malicious defense"); Iantosca v. Merrill Lynch Pierce Fenner & Smith, Inc., Docket No. 08-0775-BLS2, 2009 WL 981389, *4 (Mass. Super. November 25, 2008) ("Massachusetts courts have never recognized a tort of malicious defense. Nor has any other jurisdiction done so, with the sole exception of New Hampshire.").
Notably, the continuation theory is not a novel one; in fact, a vast majority of American jurisdictions have recognized and adopted it in the context of claims for the malicious prosecution of a prior civil action, malicious abuse of process, and wrongful use of civil proceedings. See Poff v. Hayes, 763 So. 2d 234, 241 (Ala. 2000); Greywolf v. Carroll, 151 P.3d 1234, 1241 (Alaska 2007); McClinton v. Rice, 76 Ariz. 358, 367, 265 P.2d 425 (1953); Sundeen v. Kroger, 355 Ark. 138, 142, 133 S.W.3d 393 (2003); Zamos v. Stroud, 32 Cal. 4th 958, 966, 87 P.3d 802, 12 Cal. Rptr. 3d 54 (2004); Slee v. Simpson, 91 Colo. 461, 465, 15 P.2d 1084 (1932); Salazar v. Public Trust Institute, 522 P.3d 242, 249 (Colo. App. 2022); Debrincat v. Fischer, 217 So. 3d 68, 70 (Fla. 2017); Home v. J.H. Harvey Co., 274 Ga. App. 444, 448, 617 S.E.2d 648 (2005); Arquette v. State, 128 Haw. 423, 431–33, 290 P.3d 493 (2012); Badell v. Beeks, 115 Idaho 101, 102– 104, 765 P.2d 126, 127–129 (1988); Dawson v. Mead, 98 Idaho 1, 5, 557 P.2d 595, 599 (1976); Beaman v. Freesmeyer, 433 Ill.Dec. 130, 131 N.E.3d 488, 497–98 (Ill. 2019); Liberty Loan Corp. of Des Moines v. Williams, 201 N.W.2d 462, 466 (Iowa 1972); Lindenman v. Umscheid, 255 Kan. 610, 624, 875 P.2d 964 (1994); Lemoine v. Wolfe, 168 So. 3d 362, 367 (La. 2015); Friedman v. Dozorc, 412 Mich. 1, 34, 312 N.W.2d 585 (1981); Alpha Gulf Coast, Inc. v. Jackson, 801 So. 2d 709, 721 (Miss. 2001); Palisades Collection, LLC v. Watson, 375 S.W.3d 857, 861 (Mo. App. 2012); Farmers Ins. Exchange v. Minemyer, 413 Mont. 60, 75, 532 P.3d 837 (2023); McKinney v. Okoye, 287 Neb. 261, 271–72, 842 N.W.2d 581 (2014); O’Brien v. Behles, 464 P.3d 1097, 1110–12 (N.M. App. 2020); Cold Spring Advisory Group, LLC v. National Securities Corp., 226 App. Div. 3d 612, 612, 210 N.Y.S.3d 393 (2024); Siegel v. O.M. Scott & Sons Co., 73 Ohio App. 347, 351, 56 N.E.2d 345 (1943); Empire Oil & Refining Co. v. Williams, 184 Okla. 172, 173, 86 P.2d 291 (1938); Checkley v. Boyd, 170 Or. App. 721, 734–36, 14 P.3d 81 (2000), review denied, 332 Or. 239, 28 P.3d 1174 (2001); Coatesville v. Jarvis, 902 A.2d 1249, 1251 (Pa. Super.), appeal denied, 591 Pa. 688, 917 A.2d 844 (2006); Brough v. Foley, 572 A.2d 63, 66 (R.I. 1990); Pallares v. Seinar, 407 S.C. 359, 366, 756 S.E.2d 128 (2014); Heib v. Lehrkamp, 704 N.W.2d 875, 884 n.8 (S.D. 2005); Cordova v. Martin, 677 S.W.3d 654, 659 (Tenn. App. 2023), appeal denied, Tennessee Supreme Court, Docket No. M2021-0142-SC-R11-CV (October 11, 2023); Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996); Nielsen v. Spencer, 196 P.3d 616, 620–21 (Utah 2008), cert. denied, 207 P.3d 432 (Utah 2009); Bacon v. Reimer & Braunstein, LLP, 182 Vt. 553, 554, 929 A.2d 723 (2007); Loeffelholz v. Citizens for Leaders with Ethics & Accountability Now, 119 Wash. App. 665, 695, 82 P.3d 1199, review denied, 152 Wash. 2d 1023, 101 P.3d 107 (2004); Strid v. Converse, 111 Wis. 2d 418, 423, 331 N.W.2d 350 (1983); Cates v. Eddy, 669 P.2d 912, 917 (Wyo. 1983).
Justice Thayer dissented from the majority opinion, stating that "the majority’s recognition of a tort of malicious defense is unwise as a matter of policy." Aranson v. Schroeder, supra, 140 N.H. at 371, 671 A.2d 1023. Justice Thayer reasoned that "plaintiffs who face a malicious and unfounded defense already have at their disposal adequate remedies for the injuries they may suffer"; id.; that "[t]he potential for increased litigation is obvious"; id., at 373, 671 A.2d 1023; and "[t]hat malicious defense is not a desirable addition to the tort law of New Hampshire is evidenced by the fact that no other jurisdiction in the country has explicitly recognized this cause of action." Id., at 374, 671 A.2d 1023.
Our Superior Courts have construed our Supreme Court’s reference in DeLaurentis to the continuation language in § 680 of the Restatement (Second) for administrative proceedings as a statement of its agreement with and adoption of the continuation theory for purposes of the tort of vexatious litigation, whether in an administrative or a civil proceeding. See Diamond 67, LLC v. Oatis, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. CV-12-6030610-S, 2017 WL 5056255 (September 18, 2017) (citing DeLaurentis and its application of § 680 of Restatement (Second) of Torts, and holding that "continuation of civil proceedings is sufficient to support a vexatious litigation claim" based on defendants’ intervention in mandamus action and administrative appeal); Infante v. Zurich American Ins. Co., Docket No. CV-94-327422-S, 1998 WL 310871, *4 (Conn. Super. June 1, 1998) (citing § 674 of Restatement (Second) of Torts for proposition that vexatious suit action "also applies to wrongful continuation of a lawsuit" and holding that question of material fact existed as to whether defendant wrongfully continued civil proceeding); Levine v. Fairfield Fire Dept., Superior Court, judicial district of Fairfield, Docket No. CV-89-0255827-S, 1993 WL 541607 (December 17, 1993) (10 Conn. L. Rptr. 556, 556–57) (explaining that DeLaurentis "recognized that a claim of vexatious suit or malicious prosecution was not limited to a prior civil action or prior criminal complaint, but that it extends to an initiation, continuation or procurement of civil proceedings"); Paul Rebeschi Construction, Inc. v. Yates, Superior Court, judicial district of New Haven, Docket No. 307901, 1991 WL 162714 (August 19, 1991) (4 Conn. L. Rptr. 430, 430) (holding that, although administrative proceeding was not initiated by defendants, "its continuation by their taking the appeal [was] sufficient to support" cause of action for common-law vexatious litigation).
DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991), and Diamond 67, LLC v. Oatis, 167 Conn. App. 659, 144 A.3d 1055, cert. denied, 323 Conn. 926, 150 A.3d 230 (2016), and 323 Conn. 927, 150 A.3d 228 (2016), and cert. denied, 323 Conn. 927, 150 A.3d 228 (2016), and cert. denied, 323 Conn. 927, 150 A.3d 229 (2016), and cert. denied, 323 Conn. 927, 150 A.3d 230 (2016), are irrelevant to that question. DeLaurentis stands for the unremarkable proposition that a plaintiff who was forced to defend himself in a prior administrative proceeding may thereafter maintain an action for vexatious litigation. See DeLaurentis v. New Haven, supra, at 248–49, 597 A.2d 807. Diamond 67, LLC, concerned the conduct of third parties who intervened in various administrative and mandamus proceedings between the plaintiff company and a municipal land use agency; see Diamond 67, LLC v. Oatis, supra, at 662, 144 A.3d 1055; and held merely that a genuine issue of material fact existed as to their "role in the initiation, continuation, and/or procurement of the actions in which they sought to intervene." Id., at 683, 144 A.3d 1055. Neither DeLaurentis nor Diamond 67, LLC, concerned a defendant’s liability for denials pleaded in response to a plaintiff’s complaint in a prior action.
Moreover, Connecticut case law suggests that this court implicitly has expressed agreement with § 674 of the Restatement (Second) of Torts and/or the continuation theory as a proper basis for an action for vexatious litigation. For example, this court previously applied the continuation theory set forth in § 680 of the Restatement (Second) of Torts in Diamond 67, LLC v. Oatis, 167 Conn. App. 659, 144 A.3d 1055, cert. denied, 323 Conn. 926, 150 A.3d 230 (2016), and cert. denied, 323 Conn. 927, 150 A.3d 228 (2016), and cert. denied, 323 Conn. 927, 150 A.3d 228 (2016), and cert. denied, 323 Conn. 927, 150 A.3d 229 (2016), and cert. denied, 323 Conn. 927, 150 A.3d 230 (2016). In Diamond 67, LLC, the plaintiff commenced an action against the defendants for commonlaw and statutory vexatious litigation premised on the defendants’ conduct in intervening in certain mandamus and administrative actions, which thereby caused a delay in the plaintiff’s ability to obtain certain necessary approvals for a development project. Id., at 667–68, 144 A.3d 1055. The trial court rendered summary judgment in favor of the defendants, and, on appeal, this court reversed that judgment. Id, at 672, 691, 144 A.3d 1055. After citing DeLaurentis and our Supreme Court’s "agree[ment] with the Restatement (Second) of Torts, § 680"; (internal quotation marks omitted) id., at 681, 144 A.3d 1055; this court concluded: "Here, the plaintiff submitted evidence establishing that there is a genuine issue of material fact as to each defendant’s participation in the initiation, procurement, and/or continuation of their respective interventions in the plaintiff’s administrative and mandamus actions …." Id., at 683, 144 A.3d 1055.
In Schaeppi v. Unifund CCR Partners, 161 Conn. App. 33, 41, 127 A.3d 304, cert. denied, 320 Conn. 909, 128 A.3d 953 (2015), the plaintiff brought an action for statutory and common-law vexatious litigation based on the defendants’ alleged lack of probable cause (1) to continue to prosecute a foreclosure action after being put on notice that the amount of damages had not been determined in an underlying debt collection action; id., at 52, 127 A.3d 304; and (2) to appeal from the denial of its motion to open the judgment in the foreclosure action. Id., at 54, 127 A.3d 304. This court quoted the language from De- Laurentis that "there may be liability for vexatious ‘initiation, continuation or procurement of civil proceedings’ " in support of the notion that "[p]robable cause … can be lost during the course of an action." (Emphasis in original.) Id., at 45 n.6, 127 A.3d 304. We ultimately concluded that the defendants "did not lose probable cause to pursue the foreclosure action because of adverse rulings along the way"; id., at 53, 127 A.3d 304; and that probable cause existed to pursue the appeal. Id., at 54, 127 A.3d 304. Similarly, in Rousseau v. Weinstein, 204 Conn. App. 833, 254 A.3d 984 (2021), the plaintiffs brought an action raising common-law and statutory vexatious litigation claims in which they "alleged that the defendants lacked probable cause to commence and to continue [a] civil action" that contained the same allegations as those raised in a prior dissolution action, following the issuance of a decision in the dissolution action. Id., at 851, 254 A.3d 984. The trial court rendered summary judgment in favor of the defendants, and this court, in affirming the judgment, concluded that the defendants "had probable cause to continue the civil action, move for a stay in that matter, and await the outcome of [an] appeal prior to determining how to proceed." Id., at 859, 254 A.3d 984; see also Infante v. Zurich American Ins. Co., Docket No. CV-94-327422-S, 1998 WL 310871, *4 (Conn. Super. June 1, 1998) (citing 3 Restatement (Second), supra, § 674, and explaining that, "[w]hile a vexatious suit action is usually brought for wrongful initiation of a civil proceeding, it also applies to wrongful continuation of a lawsuit").
[20–22] Although the precise issue before us in the present case was not at issue in the cases we have cited, what we derive from this case law is that actions for vexatious litigation in Connecticut, both common-law and statutory, have been and can be based on a party’s conduct in the continuation of a civil or administrative proceeding without probable cause. A vexatious litigation action must still stem from a prior civil action or administrative proceeding, and to establish such an action a party must "prove want of probable cause … and a termination of suit in the plaintiff’s favor." (Internal quotation marks omitted.) DeLaurentis v. New Haven, supra, 220 Conn. at 248, 597 A.2d 807. The continuation theory simply relates to a party’s conduct within the prior action, whether civil or administrative in nature. Allowing a vexatious litigation action for a party’s conduct in prolonging a civil proceeding without probable cause furthers one of the underlying purposes of the doctrine—to reimburse a party for litigation expenses resulting from defending against or responding to unwarranted actions. See Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. at 554, 944 A.2d 329.
See also Zamos v. Stroud, 32 Cal. 4th 958, 969, 87 P.3d 802, 12 Cal. Rptr. 3d 54 (2004) ("[c]ontinuing an action one discovers to be baseless harms [a party] and burdens the court system just as much as initiating an action known to be baseless from the outset").
General Statutes § 52-99 provides in relevant part: "Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the court, as may have been necessarily incurred by the other party by reason of such untrue pleading …." Our rules of practice contain a reciprocal provision. See Practice Book § 10-5.
2
[23] With this in mind, we necessarily must determine what constitutes a "continuation" of a legal proceeding. Pursuant to comment (c) to § 674 of the Restatement (Second) of Torts, "one who continues a civil proceeding that has properly been begun or one who takes an active part in its continuation for an improper purpose after he has learned that there is no probable cause for the proceeding becomes liable as if he had then initiated the proceeding." 3 Restatement (Second), supra, § 674, comment (c), p. 453. Merriam-Webster’s Collegiate Dictionary (11th Ed. 2014) p. 270, defines continuation as "the act or fact of continuing in or the prolongation of a state or activity …. " Continue is defined in part as "to keep going or add to … prolong .… " Id. Therefore, one who takes an active part in the continuation of a civil proceeding engages in conduct that prolongs or keeps that proceeding going.
To that end, actions for vexatious litigation in Connecticut alleging a party’s continuation of a civil proceeding for an improper purpose have been based on a myriad of ways in which the litigation has been prolonged in the prior action, including the filing of a counterclaim and the assertion of a special defense; see Rozbicki v. Sconyers, 198 Conn. App. 767, 769, 772, 234 A.3d 1061 (2020) (vexatious litigation count of complaint alleged that defendants asserted special defenses and filed counterclaim in prior action without probable cause); intervening in an action; Diamond 67, LLC v. Oatis, supra, 167 Conn. App. at 683, 144 A.3d 1055 (common-law and statutory vexatious litigation claims premised on defendants’ intervention in mandamus and administrative actions, which caused delay in plaintiff’s ability to obtain approvals for development project); filing a motion; Duse v. Carter, 9 Conn. App. 218, 219, 518 A.2d 74 (1986) (statutory vexatious litigation claim alleging that, in parties’ prior marital dissolution action, defendant filed contempt motion without probable cause and "with a malicious intent to vex and trouble [the plaintiff]"); Nutmeg Financial Holdings, LLC v. Bachleda, Superior Court, judicial district of Hartford, Docket No. CV-21-6142429-S, 2022 WL 10348914 (October 12, 2022) (relying on Schaeppi for proposition that "[a] claim for vexatious litigation may be predicated on a complaint or a defense, but also on a motion to open a judgment and a subsequent appeal"); Silano v. Verespy, Superior Court, judicial district of Fair-field, Docket No. CV-18-6072543-S, 2019 WL 2369523 (April 30, 2019) (68 Conn. L. Rptr. 436, 438) (plaintiff alleged requisite elements for vexatious litigation claim by alleging that summary judgment motion was filed without probable cause in prior action and with malice, and that prior action terminated in plaintiff’s favor); filing an appeal; see Schaeppi v. Unifund CCR Partners, supra, 161 Conn. App. at 36, 127 A.3d 304 (vexatious litigation action alleging that defendants lacked probable cause to pursue appeal following denial of motion to open foreclosure judgment); Woodbury-Correa v. Reflexite Corp., Superior Court, judicial district of New Britain, Docket No. CV-11-6011794, 2014 WL 7662505 (December 15, 2014) (genuine issue of material fact existed as to whether defendant had probable cause to appeal decision of Department of Labor); Paul Rebeschi Construction, Inc. v. Yates, Superior Court, judicial district of New Haven, Docket No. 307901, 1991 WL 162714 (August 19, 1991) (4 Conn. L. Rptr. 430, 430) (holding that defendants’ continuation of administrative proceeding by taking appeal was sufficient to support action for vexatious litigation and citing § 674 of Restatement (Second) of Torts for support); and the filing of grievance complaints. See Kaufman, LLC v. Feinberg, Docket No. 3:17cv958 (AVC), 2018 WL 11391732, *4 (D. Conn. August 1, 2018) (holding that grievance complaints could serve as basis for common-law and statutory vexatious litigation claims).
3
[24] Having discussed the types of conduct that can be considered a continuation of a civil proceeding for purposes of vexatious litigation, we next must determine whether a defendant’s bad faith response in an answer to an allegation in the plaintiff’s complaint, as alleged in the present case, falls within the type of conduct on which a vexatious litigation action can be premised. In light of the particular circumstances of the present case, we conclude that it does.
[25] Black’s Law Dictionary defines an answer as "[a] defendant’s first pleading that addresses the merits of the case, [usually] by denying the plaintiff’s allegations. … An answer usually sets forth the defendant’s defenses and counterclaims." Black’s Law Dictionary (12th Ed. 2024) p. 114. Pursuant to Practice Book § 10-46, "[t]he defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally." "The pleading of no knowledge or information to … allegations [in a complaint] is in effect a denial." (Internal quotation marks omitted.) Second Exeter Corp. v. Epstein, 5 Conn. App. 427, 429, 499 A.2d 429 (1985), cert. denied, 198 Conn. 802, 502 A.2d 932 (1986). When an action has been commenced against a defendant, the defendant must file an answer within a certain time period or it may be subject to default for failure to plead and monetary penalties. See General Statutes § 52-119; Practice Book §§ 10-8 and 17-32; see also Kaye v. Housman, 184 Conn. App. 808, 814, 195 A.3d 1168 (2018) ("[o]ur statutes and rules of practice provide penalties for failing to comply with the timely pleading requirements of Practice Book § 10-8").
[26–28] "Connecticut courts historically have imposed sanctions on parties for untruthful pleading." Stamford Hospital v. Schwartz, 190 Conn. App. 63, 86, 209 A.3d 1243, cert. denied, 332 Conn. 911, 209 A.3d 644 (2019). If "[a] plea of general denial to material allegations of the complaint that the defendant knew to be true subjects a litigant to pay expenses incurred to establish the truth" under our rules of practice; id.; we can think of no reason why it cannot also subject a litigant to an action for vexatious litigation when that litigant files an answer in which it falsely denies, or asserts that it lacks sufficient information to deny or admit, allegations it allegedly knows to be true, nor have we found any Connecticut authority precluding such an action. Good faith pleading is required in Connecticut, and although the filing of an answer is a required responsive pleading under our rules of practice, a failure to admit, or the denial in the answer of, allegations known to be true at that time could unnecessarily prolong litigation just as much as filing a motion; see Duse v. Carter, supra, 9 Conn. App. at 219, 518 A.2d 74; or filing an appeal. See Schaeppi v. Unifund CCR Partners, supra, 161 Conn. App. at 36, 127 A.3d 304. Moreover, the requirement in our rules of practice that "all allegations [in pleadings] … be founded on a reasonable basis"; Somers v. Chan, 110 Conn. App. 511, 535, 955 A.2d 667 (2008); makes no exception for a party’s answer. [29] The allegations in this case present the unique circumstances in which a defendant may be liable for vexatious litigation based on its responses to allegations in the complaint. First, and significantly, we must emphasize the context in which the present action arose. The plaintiff was involved in a motor vehicle accident with an underinsured tortfeasor, Smith. Immediately following the accident, the plaintiff notified the defendant, her insurer, of the accident and of a potential claim for under-insured motorist benefits under her contract of insurance with the defendant. That prompted the defendant to start a file with respect to the plaintiff’s accident and to conduct a yearlong investigation into the matter that was concluded on May 26, 2015, before the plaintiff commenced the prior negligence action against Smith in September, 2015. In December, 2015, the defendant was brought into the Smith action, and the complaint was amended to allege a claim of breach of contract against the defendant, not a negligence claim. Although the plaintiff did not settle that action with Smith until January, 2016, at the time the defendant was brought into the action, the file notes in the defendant’s file concerning the plaintiff’s accident indicated that Smith was 100 percent liable for the accident, and the defendant did not file its first answer to the complaint until May, 2016, after Smith settled with the plaintiff.
We are not suggesting that a failure to plead could be the basis for a claim of vexatious litigation. Although failing to plead does amount to a failure to admit allegations that are not in dispute, a default for failure to plead constitutes an admission of the allegations of the complaint and therefore does not prolong the action.
As our Supreme Court observed in Dorfman v. Smith, supra, 342 Conn. at 609, 271 A.3d 53, "§ 52-99 demonstrates that other remedies exist for addressing … the alleged conduct" of the defendant in the prior action.
See Practice Book § 4-2, which provides in relevant part: "(a) Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name. A party who is not represented by an attorney shall sign his or her pleadings and other papers. The name of the attorney or party who signs such document shall be legibly typed or printed beneath the signature.
"(b) The signing of any pleading, motion, objection or request shall constitute a certificate that the signer has read such document, that to the best of the signer's knowledge, information and belief there is good ground to support it, that it is not interposed for delay, and that the signer has complied with the requirements of Section 4-7 regarding personal identifying information. …"
When a defendant files an answer in accordance with our rules of practice, it often does so days or weeks after receiving a complaint, and before it has had the opportunity to conduct discovery or depose relevant parties such as the plaintiff. For that reason, it is not unusual for a defendant to file an amended answer pursuant to Practice Book § 10-60 or § 10-61. See, e.g., Ed Lally & Associates, Inc. v. DSBNC, LLC, 145 Conn. App. 718, 740-41, 78 A.3d 148 (defendants filed third amended answer more than one year after complaint was filed and seven weeks before "trial was due to begin"), cert. denied, 310 Conn. 958, 82 A.3d 626 (2013).
The allegations of the complaint in the present case describe a pattern of bad faith pleading by the defendant during the course of the Smith action when the defendant filed not only its initial answer asserting that it lacked information to admit or deny, inter alia, the allegation that Smith was 100 percent liable for the accident, but three subsequent amended answers in which it continued to make that assertion about various allegations it allegedly knew to be true and, ultimately, denied those allegations, despite having previously admitted some of them. This occurred over a period of more than one year. These allegations addressed conduct that prolonged the Smith action with respect to the breach of contract count against the defendant, for which the defendant eventually admitted liability. Our jurisprudence on vexatious litigation does not preclude a party from basing a vexatious litigation action on such allegations. Indeed, to permit a plaintiff to hold a defendant accountable by way of a vexatious litigation action for such alleged conduct furthers the purpose of the tort of vexatious litigation.
The defendant and the concurring and dissenting opinion suggest that our decision will open floodgates to litigation. The defendant asserts that "[t]he plaintiff would have this court adopt a rule that the mere assertion of contributory negligence by defense counsel in an uninsured or underinsured motorist case can be the ba- sis of a vexatious litigation claim against his or her client. Besides opening the door to a flood of lawsuits, such a rule would have a chilling effect on defense counsel’s ability to represent the client competently … and to exercise independent professional judgment." (Citation omitted.) The concurring and dissenting opinion echoes these concerns, relying on case law from courts in other states where such actions are disfavored. See, e.g., Ritter v. Ritter, 381 Ill. 549, 554-55, 46 N.E.2d 41 (1943); Pope v. Pollock, 46 Ohio St. 367, 370, 21 N.E. 356 (1889); see also footnote 26 of this opinion. We are not persuaded by these arguments for a number of reasons.
See Paul Rebeschi Construction, Inc. v. Yates, supra, 4 Conn. L. Rptr. 430 ("The court is fully aware that ‘honest litigants are to be encouraged to seek justice and not to be deterred by fear of an action in return and … that litigation must end somewhere, and that if one counter-action may be brought, so may another and another.’ Prosser & Keeton on Torts § 120 (5th Ed.). However, when a party pursues a legal proceeding, without probable cause and for a purpose other than that of securing the proper adjudication of a claim, that person is not an honest litigant seeking justice and should respond to damages for the harm caused by such reckless and costly conduct.").
See 4 Restatement (Second), Torts § 767, comment (c), pp. 30-31 (1979): "Litigation and the threat of litigation are powerful weapons. When wrongfully instituted, litigation entails harmful consequences to the public interest in judicial administration as well as to the actor’s adversaries."
[30] First, it is clear from Connecticut case law that an action for vexatious litigation may be based on a counterclaim or special defense that was asserted in a prior action without probable cause. See Rozbicki v. Sconyers, supra, 198 Conn. App. at 791, 234 A.3d 1061 (trial court improperly granted defendant’s motion for summary judgment because genuine issue of material fact existed as to whether defendant had probable cause to assert special defense). Second, the particular factual circumstances of the present case indicate that the defendant had conducted and closed a yearlong investigation into the collision, at the close of which two claims specialists for the defendant determined that Smith was 100 percent liable for the collision and indicated their liability conclusions in the claim file long before the defendant was brought into the Smith action. The photographs of the accident, the police report and witness statements collected during that investigation were all consistent with the conclusions of the claims specialists. Additionally, the plaintiff had settled her claim with Smith and withdrew the action against him on January 5, 2016. Significantly, this all occurred before the defendant filed its answer and special defense of contributory negligence in the Smith action in May, 2016. Third, there are inherent safeguards in actions for vexatious litigation that "balance the need to protect against inappropriate retaliatory litigation while incentivizing the reporting of wrongdoing." Dorfman v. Smith, supra, 342 Conn. at 605, 271 A.3d 53; see also Scholz v. Epstein, 198 Conn. App. 197, 232, 232 A.3d 1155 (2020), aff’d, 341 Conn. 1, 266 A.3d 127 (2021). In fact, there is a lower threshold for establishing probable cause in vexatious litigation cases, which is designed to permit attorneys to pursue novel legal theories, even though they may turn out to be unsuccessful. See Kazemi v. Allen, supra, 214 Conn. App. at 107, 279 A.3d 742. Thus, a plaintiff alleging a claim of vexatious litigation will have to demonstrate that the prior civil proceeding terminated in the plaintiff’s favor, a lack of probable cause, and, if the plaintiff is seeking treble damages under § 52-568 (2), a showing of malice. For these reasons and under the particular facts of the present case, we do not believe our decision today will open any floodgates to litigation or impose unreasonable pleading requirements on parties.
[31] For similar reasons, we also conclude that the possibility that a claim for vexatious litigation can be based on a bad faith denial in an answer does not mean that the ability of defendants to hold plaintiffs to their proof will be chilled. In a claim for vexatious litigation, a lack of probable cause must be established; that is, the plaintiff must show that the defendant denied allegations that were known to be true at the time of the denial. Furthermore, because discovery in most cases is conducted after a party files an answer to a complaint, it typically will be difficult to establish a lack of probable cause at the time of the filing of the answer denying an allegation. The probable cause require ment, thus, acts as a formidable barrier to baseless vexatious litigation actions, as liability will attach only under narrow circumstances. That determination is further reinforced by the fact that, in addition to lack of probable cause, a party must also establish favorable termination of the prior action and, if bringing a cause of action pursuant to § 52-568 (2), malice, all of which help to distinguish vigorous claims from malicious ones and, thus, serve to minimize any chilling effect on zealous advocacy. Moreover, in light of the "inherent safeguards against inappropriate retaliatory litigation [contained within] claims of vexatious litigation"; Scholz v. Epstein, supra, 198 Conn. App. at 232, 232 A.3d 1155; we see no merit to the concurring and dissenting opinion’s contention that, as a result of our decision, "the mere denial of an allegation in a civil pleading" or "an inartfully or even negligently pleaded answer" will subject individuals to actions for vexatious litigation.
[32] Actions for vexatious litigation have long been a part of Connecticut jurisprudence. See Frisbie v. Morris, 75 Conn. 637, 637, 55 A. 9 (1903) (explaining that "[vexatious litigation] statute (Rev. 1902, § 1105) … appears to have been first enacted in 1672 (Rev. of 1808, p. 671), and with some changes in phraseology has formed part of our law ever since"); Munson v. Wickwire, 21 Conn. 513, 515 (1852) faction for malicious suit); see also Sterling v. Adams, 3 Day (Conn.) 411, 432 (1809); Nichols v. Bronson, 2 Day (Conn.) 211, 216 (1805); Deming v. Taylor, 1 Day (Conn.) 285, 289–90 (1804); Ainsworth v. Allen, 1 Kirby (Conn.) 145, 146 (1786). Connecticut, unlike most states, even permits a cause of action for vexatious litigation based on the filing of a special defense without probable cause, which, in effect, is an action based on a vexatious defense. Yet, despite the critics in other states where such actions are not permitted and the concerns raised by the concurring and dissenting opinion in the present case, there is no indication that permitting such an action has caused the foundations of our courthouses to crack from the flood of lawsuits. History suggests that it also will not do so as a result of our decision today.
For these reasons, we believe that the concurring and dissenting opinion overstates the consequences of our decision and needlessly invokes "the sky is falling" rhetoric. It will be a rare case in which a party’s denial of material factual allegations in a complaint will give rise to a vexatious litigation claim. Moreover, our decision will not "reverberate through every civil courthouse in this state," as suggested by the concurring and dissenting opinion, in light of the vast circumstances that Connecticut courts already have recognized as proper grounds for actions for vexatious litigation. Simply put, our decision does not constitute an unwarranted enlargement of the current law in Connecticut regarding vexatious litigation but, rather, logically stems from it and the policies underlying the tort. Those policies are designed to protect the right of an individual to be free from unjustifiable litigation, which applies equally when litigation is unnecessarily prolonged by a party who abuses the process, and a party should be no less accountable for such wrongful conduct in litigation simply because it occurred in the filing of answers to a complaint, as opposed to a motion, special defense or an appeal.
The concurring and dissenting opinion characterizes our decision as an expansion of the current law regarding actions for vexatious litigation and, in doing so, notes the "grave implications" resulting from the fact that the novel issue in this case "has not been thoroughly vetted by members of our profession in the form of amicus briefs or proceedings before the Rules Committee of the Superior Court or the General Assembly." These assertions notwithstanding, as we have stated, our decision does not enlarge the current law but logically flows from it. For that reason and in light of our Supreme Court’s decision in Dorfman v. Smith, supra, 342 Conn. 582, 271 A.3d 53, we do not believe that amicus briefs are warranted in this matter.
Furthermore, like the concurring and dissenting opinion, we are mindful of the attorneys in this state who practice daily in our civil courts and we agree that general denials are commonplace. When litigation is unnecessarily prolonged by a party who files answers denying factual allegations it knows to be true, however, a civil advocate exceeds the limits of legitimate advocacy and should not be insulated from legal liability for the misuse of the litigation process, while at the same time the inherent safeguards contained within claims of vexatious litigation protect the civil advocate from retaliatory litigation and limit the circumstances in which such a claim may be brought.
I am aware of not a single case from any jurisdiction, and neither the plaintiff nor the majority has identified any, in which a court has held that an action for vexatious litigation properly may be predicated on a party’s denial of a paragraph of a complaint.
[33] In disagreeing with our determination, the concurring and dissenting opinion engages in a lengthy analysis of case law from, inter alia, Kansas, California, Illinois, Ohio, and Hawaii rejecting the creation of a cause of action for malicious defense. For example, the concurring and dissenting opinion refers to the fact that "California courts repeatedly have resisted attempts to impose liability on defendants who maliciously defend a civil action," as well as the reasoning of other states that agree and have determined that, "[i]f the wrongful conduct of a defendant causing the plaintiff to sue him would give rise to an independent tort and a separate cause of action, there would be no end to the litigation …. " (Internal quotation marks omitted.) The flaw in this argument, first and foremost, is that Connecticut clearly permits a cause of action for vexatious litigation, under the common law and pursuant to statute, based on a party’s conduct in defending a civil action; we simply do not refer to it as an action for malicious defense. The most common example is an action for vexatious litigation based on a special defense filed or maintained in bad faith and without probable cause in a prior civil action. See Rozbicki v. Sconyers, supra, 198 Conn. App. at 769, 234 A.3d 1061. The narrow issue in the present case is not whether Connecticut should recognize the tort of malicious defense but, rather, whether under Connecticut law, which allows a cause of action to be based on a party’s conduct in defending or unnecessarily continuing a civil action, a party’s denial in its answer of a complaint’s factual allegations that allegedly are known to be true, which is made without probable cause, can form the basis for a vexatious litigation action. In other words, does such conduct constitute continuing or prolonging litigation for purposes of a claim under the common law, or does it constitute "asserting a defense" for purposes of a statutory cause of action for vexatious litigation. The concurring and dissenting opinion’s analysis of that issue, therefore, is entirely inapposite to the issue before this court in the present case.
Connecticut law differs from that of Ohio in one significant respect: that is, for purposes of an action for vexatious litigation, a plaintiff in Connecticut does not need to show that the defendant initiated the prior action. See Bhatia v. Debek, 287 Conn. 397, 406, 948 A.2d 1009 (2008) (explaining that initiation of lawsuit or action is not element of vexatious litigation). Instead, all that is required with respect to the prior action requirement is that there was a prior civil or administrative action involving the parties that terminated in the plaintiff’s favor. Ohio, on the other hand, requires as an essential element to a cause of action for malicious civil prosecution that the plaintiff allege "malicious institution of prior proceedings against the plaintiff by [the] defendant … ." (Internal quotation marks omitted.) Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St. 3d 264, 269, 662 N.E.2d 9 (1996). Because Ohio requires that the party against whom the malicious prosecution claim is brought must have instituted the prior proceeding, it necessarily follows that an action for malicious civil prosecution in Ohio may not be premised on a defense asserted in the prior action without probable cause. Ohio, however, has a vexatious litigator statute, pursuant to which any person deemed to be a vexatious litigator may be prohibited from further filing in various Ohio courts without prior approval. See Ohio Rev. Code Ann. § 2323.52 (West 2017); State ex rel. Mobley v. Franklin County Board of Commissioners, 173 Ohio St. 3d 568, 570, 231 N.E.3d 1146 (2023). A vexatious litigator is defined as "[a]ny person who has habitually, persistently, and without reasonable grounds engaged in vexatious conduct in a civil action or actions, whether in the court of claims or in a court of appeals, court of common pleas, municipal court, or county court, whether the person or another person instituted the civil action or actions, and whether the vexatious conduct was against the same party or against different parties in the civil action or actions." Ohio Rev. Code Ann. § 2323.52 (A) (3) (West 2017). "Conduct" for purposes of the statute includes "[t]he filing of a civil action, the assertion of a claim, defense, or other position in connection with a civil action, the filing of a pleading, motion, or other paper in a civil action, including, but not limited to, a motion or paper filed for discovery purposes, or the taking of any other action in connection with a civil action …." (Emphasis added.) Ohio Rev. Code Ann. § 2323.51 (A) (1) (a) (West 2017).
In paragraph 8 of the first count of her August 21, 2019 complaint in the present action, the plaintiff alleges in relevant part: "In [the prior action, the plaintiff] set forth the following factual allegations: "a. As Joscelyn M. Smith approached the aforementioned intersection, he failed to stop or slow his vehicle, and collided with [the plaintiff’s] vehicle as she proceeded through the intersection, causing the harms and losses set forth below; "b. Said collision and the resulting injuries, damages and losses sustained by [the plaintiff] were directly and proximately caused by [Smith’s] negligence and/or carelessness …. "c. As a direct and proximate result of said collision, caused by [Smith’s] negligence and/or carelessness, [the plaintiff] suffered physical injuries, some, or all of which are likely to be permanent in nature …. "d. As a further direct and proximate result of [Smith’s] negligence and/ or carelessness, [the plaintiff] was forced to expend sums [for medical care and treatment] …. "e. As a further direct and proximate result of [Smith’s] negligence and/ or carelessness, [the plaintiff] was forced to miss time from work and lose wages …. "f. As a further direct and proximate result of the negligence and/or carelessness of [Smith], [the plaintiff] has been permanently impaired in her ability to pursue and enjoy life’s activities and pleasure, including suffering emotional distress …. "g. At the time of the … accident … [Smith] … was underinsured …. "h. [The plaintiff] has complied with her duties under the insurance contract between herself and the defendant … "i. The defendant … is liable to [the plaintiff] pursuant to the terms of the above-mentioned insurance contract for damages resulting from the bodily injury sustained by [the plaintiff] which were not compensated for by the other involved operator’s insurance coverage." (Emphasis added.)
It is noteworthy that the concurring and dissenting opinion relies on cases from states, namely, Kansas, California, Illinois, Ohio and Hawaii, in which actions for malicious prosecution, whether based on prior civil or criminal proceedings, are expressly disfavored. See, e.g., Zamos v. Stroud, 32 Cal. 4th 958, 966, 87 P.3d 802, 12 Cal. Rptr. 3d 54 (2004) (tort of malicious prosecution is disfavored); Young v. Allstate Ins. Co., 119 Haw. 403, 420, 198 P.3d 666 (2008) (same); Budd v. Walker, 60 Kan. App. 2d 189, 197–98, 491 P.3d 1273 (same), review denied, 314 Kan. 854, —P.3d — (2021); Beaman v. Freesmeyer, 433 Ill. Dec. 130, 131 N.E.3d 488, 494 (Ill. 2019) (same); Froehlich v. Ohio Dept, of Mental Health, Docket No. 05AP-129, 2005 WL 3557449, *3 (Ohio App. December 30, 2005) (same), aff’d, 114 Ohio St. 3d 286, 871 N.E.2d 1159 (2007). Connecticut courts have not taken this view of actions for vexatious litigation, as discussed previously in this opinion.
As the trial court noted in its memorandum of decision, "the factual predicate for all counts [set forth in the plaintiff’s complaint] are the allegations of the inappropriate denial of liability and damages."
The concurring and dissenting opinion also incorrectly focuses on the concept of general denials of liability, which is not at issue in this case. The Smith action did not involve an allegation of negligence against the defendant, nor has the plaintiff premised this vexatious litigation action on the defendant’s failure to admit its negligence in the Smith action. See footnote 33 of this opinion. The plaintiff’s vexatious litigation action is based on the defendant’s conduct in prolonging the breach of contract action brought against it by denying various material allegations in the Smith action it allegedly knew to be true, including, inter alia, that (1) Smith failed to stop or slow his vehicle when he entered the intersection, causing the collision with the plaintiff’s vehicle, (2) the collision and resulting injuries to the plaintiff were caused by Smith’s negligence, (3) the plaintiff sustained physical injuries, some of which were permanent in nature, as a direct and proximate cause of Smith’s negligence, (4) the plaintiff incurred expenses for medical care and treatment as a result of Smith’s negligence, lost wages from missing work due to the injuries sustained in the collision and has been permanently impaired in her ability to enjoy life’s activities, (5) Smith was underinsured at the time of the collision, (6) the plaintiff complied with her duties under her insurance policy with the defendant, and (7) the defendant is liable to the plaintiff under the terms of that policy.
The allegations in the Smith action include language of causation, relating to both the cause of the collision and the cause and extent of the plaintiff’s alleged injuries. As we explain more fully in part II of this opinion, it is without question that a defendant need not accept a plaintiff’s allegations regarding causation of injuries. With respect to the allegations concerning the cause of the collision, however, at the time the defendant answered the complaint, it was not disputed, as demonstrated by the defendant’s own investigation of the collision and Smith’s admission of liability and settlement with the plaintiff, that Smith was responsible for the collision as a result of his failure to stop at a stop sign. The amended complaint in the Smith action also includes factual allegations concerning the circumstances of the collision, that Smith was underinsured and that the plaintiff had complied with her duties under her insurance contract. In accordance with our rules of practice, "[t]he defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally." (Emphasis added.) Practice Book § 10-46. Evasive denials are addressed by Practice Book § 10-47, which provides: "Denials must fairly meet the substance of the allegations denied. Thus, when the payment of a certain sum is alleged, and in fact a lesser sum was paid, the defendant cannot simply deny the payment generally, but must set forth how much was paid to the defendant; and where any matter of fact is alleged with divers circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much as is true and material should be stated or admitted, and the rest only denied." These provisions instruct that, in Connecticut, "[i]f the allegation is true in part, that part should be admitted and the balance denied. Evasive denials are not to be countenanced." J. Kaye & W. Effron, 2 Connecticut Practice Series: Civil Practice Forms (4th Ed. 2004) Form 105.3, authors’ comment, p. 155.
[34] Indeed, the defendant in the present case exemplified this practice in its December 15, 2016 answer when it admitted the portion of paragraph 7 of the amended complaint in the Smith action alleging that the accident was caused by "Smith’s failure to keep a proper and reasonable lookout for other motor vehicles upon the roadway," but asserted that it was without sufficient information to either admit or deny the remaining allegations of paragraph 7. Although the defendant admitted the portion of the allegation pertaining to causation, we recognize that, ordinarily, to the extent an allegation in a complaint concerns causation or liability but also makes factual assertions, a defendant may, in good faith, deny the portion relating to causation or liability if it intends to controvert such allegations but must admit any portion which it knows to be true. Therefore, in the present case, even though the allegations of the complaint in the Smith action that are at issue in this case pertain, in part, to causation and liability, the defendant was still required to admit those portions of the allegations it knew to be true. Requiring a defendant to do so is entirely consistent with the pleading requirements in this state and will not impose any new or unnecessary burdens on parties.
Accordingly, we conclude, under the particular facts of this case, that the allegations of count one of the complaint concerning the defendant’s alleged bad faith pleading in the Smith action properly assert a cause of action for vexatious litigation under the common law. 4
Our decision today should not be construed as a statement that the plaintiff will be successful in proving this claim at a trial. This case comes before us on an appeal from the granting of a motion for summary judgment, in which we must construe the allegations of the complaint and the evidence in the light most favorable to the plaintiff. Even though we have concluded that the vexatious litigation counts can properly be based on the defendant’s alleged bad faith pleading in the Smith action, at a trial of the matter the plaintiff still must prove the elements of those counts and any damages she has suffered. Moreover, the concurring and dissenting opinion also spends significant time discussing the admissions made by the defendant in response to the request for admissions filed by the plaintiff. See footnote 6 of this opinion. Those admissions may impact the amount of damages, if any, suffered by the plaintiff but have no bearing on the issue of whether the defendant had probable cause to plead denials in its answer and amended answers, which were filed prior to the admissions.
In that answer, the defendant admitted the truth of other allegations set forth in count two of the plaintiff’s amended complaint, which are not at issue in this vexatious litigation action.
[35] Finally, we address the defendant’s contention that the plaintiff’s "remedy for an untrue or unfounded allegation in a pleading is … § 52-99 and Practice Book § 10-5, not a vexatious litigation action." (Footnotes omitted.) As we have noted in this opinion, both § 52-99 and Practice Book § 10-5 permit a party to seek monetary sanctions when "[a]ny allegation or denial [is] made without reasonable cause and found [to be] untrue …. " Neither the statute nor the rule of practice, however, includes language indicating that it is the exclusive remedy for untrue pleadings, nor has the defendant directed this court to any authority supporting that proposition. In the absence of any such limiting language or authority, we cannot conclude that the plaintiff’s only remedy for the defendant’s untrue pleadings in the Smith action was to seek sanctions pursuant to § 52-99 or Practice Book § 10-5. See Caciopoli v. Lebowitz, 309 Conn. 62, 72, 68 A.3d 1150 (2013) ("[T]he legislature is capable of providing explicit limitations when that is its intent. … In the absence of explicit language indicating that the statute is the exclusive remedy, we will not presume that the legislature intended to occupy the field and preempt a commonlaw cause of action. See Lynn v. Haybuster Mfg., Inc., [226 Conn. 282, 290, 627 A.2d 1288 (1993)] ([t]he legislature’s intent is derived not in what it meant to say, but in what it did say … ") (Citations omitted; internal quotation marks omitted.)).
We find persuasive statements of the Hawaii Supreme Court in Arquette v. State, 128 Haw. 423, 431–33, 290 P.3d 493 (2012), in which the court first recognized a cause of action for maintaining a malicious prosecution. The court stated that doing so was necessary to "properly guard against the harms associated with protracted litigation," and that litigation can have "a profound effect upon the quality of one’s life that goes beyond the mere entitlement to counsel fees." (Internal quotation marks omitted.) Id., at 431, 290 P.3d 493. The court explained further that "the existing rules and statutes do not fully remedy the harms inflicted by protracted litigation"; id., at 432, 290 P.3d 493; in that, "[a]lthough the conduct associated with continuing a malicious prosecution is subject to sanctions [of attorney’s fees], attorney’s fees may not always provide a complete remedy to a litigant …." (Footnote omitted.) Id., at 432–33, 290 P.3d 493.
Specifically, the defendant admitted that, "[o]n or about September 27, 2014, at approximately 10 a.m., the plaintiff was operating a motor vehicle in an easterly direction on Elmfield Street, a public thoroughfare located in West Hartford, Connecticut, and was approaching the intersection of Somerset Street and Elmfield Street"; that "the accident was caused by Joscelyn Smith’s failure to keep a proper and reasonable lookout for other motor vehicles upon the roadway"; and that the plaintiff "has complied with her duties to date [under the insurance policy between herself and the defendant] but the policy requires the plaintiff to comply with continuing duties and obligations."
[36, 37] Moreover, the fact that other remedies exist with respect to allegations or denials in pleadings made without reasonable cause and found to be untrue undermines any exclusivity argument relating to § 52-99 and Practice Book § 10-5. For example, a "trial court, in the exercise of its inherent authority, may impose sanctions of attorney’s fees for a course of bad faith pleading." Fattibene v. Kealey, 18 Conn. App. 344, 344, 558 A.2d 677 (1989). This court has "long recognized that, apart from a specific rule of practice authorizing a sanction, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its rules. … Our trial courts have the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated." (Internal quotation marks omitted.) Stein v. Horton, 99 Conn. App. 477, 489, 914 A.2d 606 (2007). Additionally, under rule 3.1 of the Rules of Professional Conduct, "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." See O'Brien v. Superior Court, 105 Conn. App. 774, 786– 87, 939 A.2d 1223 ("[W]e recently have recognized that, although a claim need not be based on fully substantiated facts when filed, once it becomes apparent that the claim lacks merit, an attorney violates rule 3.1 by persisting with the claim, rather than withdrawing it. Brunswick v. Statewide Grievance Committee, [103 Conn. App. 601, 619, 931 A.2d 319 (2007)] (‘rule 3.1 prohibits an attorney from asserting … a claim on which the attorney reasonably is unable to maintain a good faith argument on the merits’)."), cert. denied, 287 Conn. 901, 947 A.2d 342 (2008).
We also point out that rule 11 of the Federal Rules of Civil Procedure similarly "provides a vehicle for sanctioning an attorney, a client, or both … [and] is aimed at curbing abuses of the judicial system …." (Citations omitted; footnote omitted; internal quotation marks omitted.) United States v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, 948 F.2d 1338, 1343 (2d Cir. 1991). Federal courts have determined that "the Federal Rules of Civil Procedure, including [r]ule 11, do not preempt malicious prosecution claims predicated on federal civil actions. See, e.g., U.S. Express Lines [Ltd. v. Higgins, 281 F.3d 383, 393 (3d Cir. 2002)]; Cohen v. Lupo, 927 F.2d 363, 365 (8th Cir. 1991); Tarkowski v. County of Lake, 775 F.2d 173, 175 (7th Cir. 1985); McShares, Inc. v. Barry, 266 Kan. 479, [491–92, 970 P.2d 1005] (1998) ('Rule 11 cannot abridge the substantive state law of malicious prosecution, nor was it adopted to serve as a surrogate for an action based upon a claim of malicious prosecution resulting from frivolous, harassing, or vexatious litigation.’); Del Rio v. Jetton, 55 Cal. App. 4th 30, [37,] 63 Cal. Rptr. 2d [712] (1997) (‘Nothing in [r]ule 11 indicates an intent to occupy the entire field of groundless suits brought for malicious purpose, nor is there any conflict between [r]ule 11 and a damages action for such malicious prosecution.’). As the [r]ule 11 advisory committee observed, ‘Rule 11 is not the exclusive source for control of improper presentations of claims, defenses, or contentions. … Rule 11 does not preclude a party from initiating an independent action for malicious prosecution or abuse of process.’ [Fed. R. Civ. P.] 11 advisory committee’s note …. Thus, the United States Supreme Court is ‘confident that district courts will resist the temptation to use [rule 11 ] sanctions as substitutes for tort damages.' [Business] Guides, Inc. v. Chromatic [Communications Enterprises], Inc., 498 U.S. 533, 553, 111 S. Ct. 922, 112 L. Ed. 2d 1140 (1991)." (Emphasis in original.) Graber v. Fuqua, 279 S.W.3d 608, 613–14 (Tex.), cert. denied, 558 U.S. 880, 130 S. Ct. 288, 175 L. Ed. 2d 136 (2009). This analysis regarding rule 11 provides further support for our determination that the sanctions available under § 52-99 and Practice Book § 10-5 do not preclude a tort action for vexatious litigation based on the same conduct.
In paragraphs 6 through 11, the plaintiff alleged in relevant part: "6. As [Smith] approached the intersection, he failed to stop or slow his vehicle, and collided with [the plaintiff’s] vehicle as she proceeded through the intersection, causing the harms and losses set forth below. "7. Said collision and the resulting injuries, damages and losses sustained by [the plaintiff] were directly and proximately caused by [Smith’s] negligence and/or carelessness …. "8. As a direct and proximate result of said collision, caused by [Smith’s] negligence and/or carelessness, [the plaintiff] suffered physical injuries, some, or all of which are likely to be permanent in nature …. "9. As a further direct and proximate result of [Smith's] negligence and/ or carelessness, [the plaintiff] was forced to expend sums [for medical care and treatment] …. "10. As a further direct and proximate result of [Smith’s] negligence and/ or carelessness, [the plaintiff] was forced to miss time from work and lose wages …. "11. As a further direct and proximate result of the negligence and/or carelessness of [Smith], [the plaintiff] has been permanently impaired in her ability to pursue and enjoy life’s activities and pleasure." (Emphasis added.)
We also find informative our Supreme Court’s statements and analysis in the plaintiff’s appeal in the Smith action, particularly its statement that a vexatious suit was one of many remedies available to the plaintiff for her claim "challeng[ing] the defendant’s conduct in defending against her underinsured motorist claim." Dorfman v. Smith, supra, 342 Conn. at 597, 271 A.3d 53. In Dorfman, the court described the plaintiff’s claim in the Smith action that the defendant had breached the implied covenant of good faith and fair dealing as follows: "The plaintiff alleged that the defendant falsely responded to the complaint, including by asserting a special defense the defendant knew had no basis in fact, as well as falsely responding to interrogatories and discovery requests. As a result, the defendant ‘used intentional misstatements, intentional misrepresentations, intentionally deceptive answers, and violated established rules of conduct in litigation,’ and ‘knowingly and intentionally engaged in dishonest and sinister litigation practices by taking legal positions that were without factual support in order to further frustrate [the plaintiff’s] ability to receive benefits due [to her] under her contract.’ According to the plaintiff, through this conduct, the defendant (1) engaged in unfair, deceptive, and self-serving conduct, (2) deceitfully and maliciously attributed responsibility for the car crash to the plaintiff, (3) compelled the plaintiff to resort to litigation to obtain her benefits, and (4) filed false and misleading answers in pleadings and discovery responses it knew had no basis in fact to prolong litigation and to attempt to reduce the plaintiff’s insurance benefits." (Emphasis added.) Id., at 595, 271 A.3d 53. These allegations are very similar to those made by the plaintiff in the present action with respect to her claims for vexatious litigation.
Although the court in Dorfman v. Smith, supra, 342 Conn. at 596, 271 A.3d 53, ultimately applied the litigation privilege to bar the plaintiff’s claim for breach of the implied covenant of good faith and fair dealing, it recognized the "unfairness" in that result and, thus, stressed "the importance of the availability of other remedies." Id., at 599, 271 A.3d 53. In addition to pointing out the monetary sanctions available pursuant to § 52-99, the court noted that "the trial court has the inherent authority to sanction parties for litigation misconduct"; id., at 611, 271 A.3d 53; and that "a party may file a motion to open a judgment on the ground that the judgment was obtained by fraud or intentional, material misrepresentation." Id., at 612, 271 A.3d 53. The court further stated: "[A]s we noted in DeLaurentis, ‘[p]arties and their counsel who abuse the process by bringing unfounded actions for personal motives are subject to civil liability for vexatious suit or abuse of process.’ DeLaurentis v. New Haven, supra, [220 Conn. at 264, 597 A.2d 807]. Importantly, in the present case, upon a prior action terminating in her favor, the plaintiff could have brought a lawsuit for vexatious litigation. In fact, that is what she did. These other remedies belie the plaintiff’s argument that, if immunity is granted, this court will open the floodgates to insurance companies using the litigation privilege as a loophole to engage in misconduct and deprive insureds of their contractual benefits." Dorfman v. Smith, supra, at 612, 271 A.3d 53. We, therefore, reject the defendant’s claim that the plaintiff’s remedy for an untrue or unfounded allegation in a pleading is limited to § 52-99 and Practice Book § 10-5.
B
We now turn to the plaintiff’s claims in counts two and three of the complaint alleging violations of the vexatious litigation statute, § 52-568, which is titled "Damages for groundless or vexatious suit or defense." Pursuant to § 52-568, "[a]ny 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." (Emphasis added.) The allegations of counts two and three parallel those of count one and are based on the same alleged vexatious conduct of the defendant concerning its initial and three subsequent amended answers and its denials of allegations it allegedly knew to be true, with the exception of the allegations of malice, which are absent from count two. In her supplemental brief to this court, the plaintiff argues that, pursuant to the plain language of § 52-568, her statutory vexatious litigation counts are properly premised on the defendant’s initial and subsequent amended answers to the complaint in the Smith action. In making this argument, the plaintiff focuses on the phrase "asserts a defense" in § 52-568 and the fact that defenses must be set forth in a party’s answer. She also relies on Patchen v. Delohery Hat Co., 82 Conn. 592, 594, 74 A. 881 (1909), in which our Supreme Court of Errors stated that the defendant, in framing its answer, had a "duty to plead the truth," which is embodied in our statutes and rules of practice. In its supplemental brief, the defendant has not directly addressed the plaintiff’s argument about the plain language of the statute and, in a single sentence addressing the statute, asserts that § 52-568 "does not proscribe specific allegations in a pleading if there is otherwise probable cause for the action or the defense."
Our resolution of this issue requires us to construe § 52-568, which "presents a question of law over which our review is plenary." (Internal quotation marks omitted.) Karanda v. Bradford, 210 Conn. App. 703, 711, 270 A.3d 743 (2022). Our analysis of § 52-568 is guided by the plain meaning rule in General Statutes § 1-2z, which provides that "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered."
[38, 39] Section 52-568 does not define the word "defense" in the context of the statute. "When a statute does not define a term, General Statutes § 1-1 (a) directs that we construe the term according to its commonly approved usage, mindful of any peculiar or technical meaning it may have assumed in the law. We may find evidence of such usage, and technical meaning, in dictionary definitions, as well as by reading the statutory language within the context of the broader legislative scheme." (Internal quotation marks omitted.) 777 Residential, LLC v. Metropolitan District Commission, 336 Conn. 819, 831, 251 A.3d 56 (2020). Our Supreme Court recently addressed the definition of the word "defense" as it is used in Practice Book § 23-18, which applies to "any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed," and does not define the term "defense." Our Supreme Court stated: "[W]e look to the commonly approved usage of the word. See, e.g., Ugrin v. Cheshire, 307 Conn. 364, 380, 54 A.3d 532 (2012). Black’s Law Dictionary defines ‘defense’ as ‘[a] defendant’s stated reason why the plaintiff or prosecutor has no valid case … a defendant’s answer, denial, or plea . … ’ Black’s Law Dictionary (11th Ed. 2019) p. 528…. A ‘stated reason’ ‘in law or fact’ that challenges a plaintiff’s right to recover includes a legal or factual argument raised in opposition to that party." (Citation omitted.) JPMorgan Chase Bank, National Assn. v. Malick, 347 Conn. 155, 168–69, 296 A.3d 157 (2023); see also Merriam-Webster’s Collegiate Dictionary, supra, p. 326 (similarly defining "defense" as "a defendant’s denial, answer, or plea"). Under this commonly used and broad definition, "defense" includes anything that defeats the claim asserted, whether it be by way of a special or affirmative defense asserted in an action, as well as by an answer deny- ing the allegations of a complaint, which is a form of a defense to the action and is done to oppose or to challenge the validity of the allegations of a complaint. See Practice Book § 10-46 ("[t]he defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert"). We do not find ambiguity in the language of the statute.
"Practice Book § 10-50 defines the purpose of a special defense. That section, titled, 'Denials; Special Defenses,’ provides in relevant part: ‘No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged …. ’ Practice Book § 10-50." Kaye v. Housman, supra, 184 Conn. App. at 817, 195 A.3d 1168. "An answer and a special defense have legally distinct functions …." Id., at 816–17, 195 A.3d 1168. "The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Id., at 818, 195 A.3d 1168. "It is axiomatic that a special defense is not provable under a simple denial, because, by definition, a special defense is a claim that defeats the plaintiff’s cause of action without disproving it." Bruno v. Whipple, 162 Conn. App. 186, 203, 130 A.3d 899 (2015), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016).
Although it acknowledges that the issue of causation was raised in various paragraphs of the plaintiff’s complaint, the majority suggests that an action for vexatious litigation properly may be predicated on the defendant’s allegedly evasive denials of portions of those paragraphs. I respectfully disagree. It is well established that Connecticut courts do not read pleadings in a hypertechnical manner. See Carpenter v. Daar, supra, 346 Conn. at 128, 287 A.3d 1027. Moreover, plaintiffs that are unsatisfied with a defendant’s answer to a particular paragraph of a complaint have multiple avenues of recourse under our rules of practice. They may file requests to revise pursuant to Practice Book § 10-35 or requests for admission pursuant to Practice Book § 13- 22. Alternatively, plaintiffs who have alleged multiple factual allegations in a single paragraph—as the plaintiff did here—may amend the complaint, either as of right pursuant to Practice Book § 10-59 or by leave of the court pursuant to Practice Book § 10-60, to allege each factual allegation distinctly. In this regard, I am mindful of the many attorneys in this state who toil in the trenches of civil practice on a daily basis, where general denials, requests to revise, requests for admissions, and amended complaints are commonplace. Although the failure to admit a portion of a paragraph of a complaint may give rise to monetary sanctions pursuant to § 52-99, sanctions ordered by the court pursuant to its inherent authority; see CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. at 393, 685 A.2d 1108; and even an award of attorney's fees; see Lederle v. Spivey, supra, 332 Conn. at 844, 213 A.3d 481; I do not believe that it should give rise to a civil action for vexatious litigation.
[40–43] The concurring and dissenting opinion acknowledges that our Supreme Court has defined the word "defense" to include a defendant’s answer, denial or plea, but nonetheless concludes that the term should not be construed as such in § 52-568 because "[t]he legislature … did not include the term ‘denial’ in enacting or amending § 52-568," and if it had "intended to include general denials within the ambit of § 52-568, it could have defined the term ‘defense," or it could have enacted the statute to apply to any person who " ‘asserts a denial or defense to any civil action ….’ " (Emphasis in original.) We reject this contention for two reasons. First, when a statute or rule of practice does not define a term, as our Supreme Court instructs, "it is appropriate to consult contemporaneous dictionary definitions. See, e.g., Ledyard v. WMS Gaming, Inc., 338 Conn. 687, 697, 258 A.3d 1268 (2021) (‘in the absence of statutory definitions, we look to the contemporaneous dictionary definitions of words to ascertain their commonly approved usage’); see also General Statutes § 1-1 (a) (‘[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language’)." Cerame v. Lamont, 346 Conn. 422, 428, 291 A.3d 601 (2023); see also Dunn v. Northeast Helicopters Flight Service, LLC, 346 Conn. 360, 377, 290 A.3d 780 (2023) ("[i]n the absence of statutory definitions, we again look to the common usage of each term"). The commonly approved usage of the term "defense" is the one set forth in Black’s Law Dictionary (12th Ed. 2024) p. 528, and Merriam-Webster’s Collegiate Dictionary, supra, p. 326, not what the concurring and dissenting opinion considers to be "the most familiar legal sense" of the word "as used by legal practitioners in this state .… " In the absence of any indication that the term "defense" as used in § 52-568 was intended to have a technical or special meaning; see Perruccio v. Allen, 156 Conn. 282, 286, 240 A.2d 912 (1968); we see no reason to depart from our regular practice of looking to the common usage of a term as defined in dictionaries. Second, because the commonly used definition of "defense" necessarily includes a denial, it would have been superfluous for our legislature to add that word to the statutory language. Courts "must construe a statute as written…. Courts may not by construction supply omissions … or add exceptions merely because it appears that good reasons exist for adding them. … It is axiomatic that the court itself cannot rewrite a statute to accomplish a particular result. That is a function of the legislature." (Internal quotation marks omitted.) Blondeau v. Baltierra, 337 Conn. 127, 143, 252 A.3d 317 (2020).
In our view, the concurring and dissenting opinion also incorrectly takes the position that the statutory language—asserts a defense—"refers to defenses that are affirmatively pleaded, rather than general denials set forth in a defendant’s answer." At the outset, we point out the familiar principle that, if the legislature wanted to limit the type of defense to which the statute applies—for example, to the assertion of a special or affirmative defense—it easily could have so provided. See Dunn v. Northeast Helicopters Flight Service, LLC, supra, 346 Conn. at 375, 290 A.3d 780; see also Curley v. Phoenix Ins. Co., 220 Conn. App. 732, 769, 299 A.3d 1133 ("[t]he absence of … language [in a statute] is significant, ‘as it is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly … or to use broader or limiting terms when it chooses to do so’ "), cert. denied, 348 Conn. 914, 303 A.3d 260 (2023). Instead of using the term "special defense," the legislature used the broader term "defense."
[44–47] This is especially true, in light of the distinct functions of an answer and special defense, both of which are ways to "assert a defense" to an action. See footnote 30 of this opinion. For example, not all defenses are special or affirmative defenses. See Shaheer v. Commissioner of Connection, 207 Conn. App. 449, 461 n.6, 262 A.3d 152 ("duress is a defense to a crime … [but] not an affirmative defense" (citation omitted; internal quotation marks omitted)), cert. denied, 340 Conn. 903, 263 A.3d 388 (2021); Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973) ("Practice Book § 120 [now § 10-50] lists some of the defenses which must be specially pleaded and proved"). "As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. … The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 501, 853 A.2d 460 (2004). Also, "[t]here is a distinction between matters which may be proved under a general denial and matters constituting special defenses [which must be specially pleaded]." (Internal quotation marks omitted.) Bennett v. Chenault, 147 Conn. App. 198, 202, 81 A.3d 1184 (2013). That distinction "was enunciated in Pawlinski v. Allstate Ins. Co., [supra, 1, 327 A.2d 583], where [our Supreme Court] observed … that [t]he issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact. … If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would [independently] destroy the cause of action, the new matter must be affirmatively pleaded as a special defense." (Internal quotation marks omitted.) Barrows v. J.C. Penney Co., 58 Conn. App. 225, 233, 753 A.2d 404, cert. denied, 254 Conn. 925, 761 A.2d 751 (2000); see also Practice Book § 10-50 ("No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.").
In Bennett v. Chenault, supra, 147 Conn. App. at 203, 81 A.3d 1184, for example, the defendant, by her answer, "denied the plaintiff’s claim of negligence and raised a special defense of comparative negligence." This court stated that "[t]he denial of negligence and the allegation of a special defense thus constitute[d] separate and distinct defenses, either of which [could] support the jury’s general verdict." (Emphasis added.) Id. Similarly, in Mulcahy v. Hartell, 140 Conn. App. 444, 446, 59 A.3d 313 (2013), the dispositive issue before this court was "whether evidence of a plaintiff’s post-treatment conduct may be offered by a defendant under a general denial for the purpose of showing that the plaintiff’s conduct was the sole proximate cause of her injuries." This court concluded that "the claim that an actor other than the defendant caused the plaintiff’s injuries is inconsistent with a prima facie negligence case, and, thus, can be pursued under a general denial. The essence of the defense at issue in the present case was that the plaintiff was entirely responsible for her injuries; therefore, the court correctly admitted it without the assertion of a special defense"; (emphasis added) id., at 450, 59 A.3d 313; and "pursuant to a general denial." Id., at 452, 59 A.3d 313. What is evident from these cases is that a party, by generally denying factual allegations of a complaint, is, in effect, asserting a defense to those allegations.
[48, 49] The defendant has not directed us to any authority suggesting that a denial in an answer is not a defense or establishing that the term "defense" as used in § 52-568 must be limited to special defenses. We conclude that to do so would be contrary to the purpose of § 52-568, which "make[s] it clear that it is the strong public policy of this state to discourage dishonesty during the litigation process .… " Dorfman v. Smith, supra, 342 Conn. at 644, 271 A.3d 53 (Ecker, J., concurring in part and dissenting in part). As we stated previously in this opinion, we must read the term "defense" in § 52-568 within the context of the broader legislative scheme. "Connecticut’s vexatious litigation statute strives to deter parties from bringing claims [or asserting defenses] without probable cause and with malicious intent." Metcalf v. Fitzgerald, 333 Conn. 1, 29, 214 A.3d 361 (2019), cert. denied, — U.S. —, 140 S. Ct. 854, 205 L. Ed. 2d 460 (2020). It serves to recognize "the right of an individual to be free from unjustifiable litigation …. " (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. at 553–54, 944 A.2d 329. That right applies whether a party "commences and prosecutes" an action without probable cause, as well as whether a party unjustly "asserts a defense" to an action without probable cause, whether by way of filing an answer to a complaint denying allegations of a complaint that are known to be true or asserting a groundless special defense.
Significantly, our Supreme Court has stated repeatedly that "[a] statutory action for vexatious litigation under … § 52-568 … differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages." (Citation omitted; emphasis added.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 94, 912 A.2d 1019; see also Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. at 554, 944 A.2d 329; DeLaurentis v. New Haven, supra, 220 Conn. at 256, 597 A.2d 807; Christian v. Iyer, 221 Conn. App. 869, 877, 303 A.3d 604 (2023). "[Vexatious suit] is the appellation given in this [s]tate to the cause of action created by statute … § 52- 568 … for the malicious prosecution of a civil suit … which [our Supreme Court has] said was governed by the same general principles as the common-law action of malicious prosecution." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, at 103, 912 A.2d 1019; see also Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 46, 929 A.2d 729 ("§ 52-568 represents a statutory codification of the common-law cause of action for vexatious litigation"), cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).
Courts consistently have applied the continuation theory under § 674 of the Restatement (Second) of Torts to both statutory and common-law claims of vexatious litigation; see Diamond 67, LLC v. Oatis, supra, 167 Conn. App. at 683, 144 A.3d 1055 (with respect to action alleging common-law and statutory claims for vexatious litigation, "genuine issue of material fact [existed] as to each defendant’s participation in the initiation, procurement, and/or continuation of their respective interventions in the plaintiff’s administrative and mandamus actions"); Schaeppi v. Unifund CCR Partners, supra, 161 Conn. App. at 41–42, 127 A.3d 304 (statutory vexatious litigation count based on defendant’s continuing to prosecute foreclosure action and appeal from denial of motion to open foreclosure judgment); see also Rousseau v. Weinstein, supra, 204 Conn. App. at 851, 254 A.3d 984 (action raising common-law and statutory vexatious litigation claims alleging that "defendants lacked probable cause to commence and to continue [a] civil action"); and claims for vexatious litigation have been brought on the basis of actions apart from commencing and prosecuting a civil action or asserting a counterclaim or special defense, although we note that the precise issue of whether the statute supports such actions was not before the courts in those cases. See Diamond 67, LLC v. Oatis, supra, at 668, 144 A.3d 1055 (interventions in administrative action); Schaeppi v. Unifund CCR Partners, supra, at 41-42, 127 A.3d 304 (appeal from denial of motion to open foreclosure judgment); Spilke v. Wicklow, 138 Conn. App. 251, 261, 53 A.3d 245 (2012) (vexatious litigation claim stemmed from filing of motion for contempt), cert. denied, 307 Conn. 945, 60 A.3d 737 (2013); Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 685, 981 A.2d 497 (2009) (appeal from unemployment compensation benefits award), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010); Embalmers’ Supply Co. v. Giannitti, supra, 103 Conn. App. at 49, 929 A.2d 729 (shareholder litigation and subsequent appeal therefrom); Duse v. Carter, supra, 9 Conn. App. at 219, 518 A.2d 74 (filing motion for contempt in prior marital dissolution action without probable cause); Nutmeg Financial Holdings, LLC v. Bachle- da, supra, Superior Court, Docket No. CV-21-6142429-S (moving to open judgment and appealing therefrom); Silano v. Verespy, supra, 68 Conn. L. Rptr. at 438 (filing motion for summary judgment). In light of the foregoing, we conclude, under the particular facts of this case, that the allegations of counts two and three of the complaint concerning the defendant’s alleged bad faith pleading in its answers in the Smith action properly assert causes of action for vexatious litigation pursuant to § 52-568.
We note that in Spilke v. Wicklow, supra, 138 Conn. App. at 255-56, 53 A.3d 245, the plaintiff alleged claims for vexatious litigation, both under the common law and § 52- 568, based on the defendant’s conduct in filing a motion for contempt during divorce proceedings. Although the plaintiff argued on appeal that all of the proceedings surrounding the divorce were vexatious, this court disagreed and concluded that the vexatious litigation claims "stemm[ed] from the filing of the motion [for] contempt, and not from the divorce proceedings." Id., at 261, 53 A.3d 245. The plaintiff was awarded $10,001 in damages with respect to her common-law claim, and the trial court determined that she was entitled to treble the damages under § 52-568, for a total award of $30,003. Id., at 256, 53 A.3d 245. Because the defendant did not argue on appeal that the court abused its discretion in awarding treble damages, however, this court did not address that issue.
The issue of causation frequently implicates (1) the credibility of witnesses, such as plaintiffs, medical providers and experts, (2) the related issue of whether a plaintiff has any preexisting injuries, and (3) the extent of any pain and suffering sustained by a plaintiff, a notoriously difficult type of damage to measure.
Accordingly, we reject the defendant’s claim that an action for vexatious litigation, whether under the common law or § 52- 568, cannot be based on allegedly false answers to a complaint in a prior action.
II
We now address the plaintiff’s claim that the court erred in determining that no genuine issues of material fact exist as to whether the defendant had probable cause to answer the complaint in the Smith action in the manner it did and to assert the special defense of contributory negligence. Specifically, the plaintiff argues that the defendant did not meet its burden, as the party moving for summary judgment, of establishing the absence of a genuine issue of material fact concerning probable cause because it did not provide evidence in support of its motion demonstrating that it had any factual basis for asserting the denials in its answer as well as its special defense of contributory negligence. Thus, the plaintiff argues, the burden never shifted to her to submit documents establishing the existence of such an issue of fact. The plaintiff’s second claim is that the court misapplied the standard for summary judgment when it failed to construe the evidence in the light most favorable to the plaintiff. Because these claims are related, we address them together.
[50–55] The following general principles guide our analysis of these claims. "[T]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. … Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man [or woman] in the belief that he [or she] has lawful grounds for prosecuting the defendant in manner complained of. … Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he [or she] lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted. … [T]he existence of probable cause is an absolute protection against an action for [vexatious litigation], and what facts, and whether particular facts, constitute probable cause is always a question of law. … Because the question of whether there is probable cause in a vexatious litigation case is a question of law, our scope of review is plenary." (Citation omitted; internal quotation marks omitted.) Rousseau v. Weinstein, supra, 204 Conn. App. at 853–54, 254 A.3d 984. "[T]he probable cause standard applied to a vexatious litigation action against a litigant is a purely objective one." Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 95, 912 A.2d 1019.
In the present case, to prevail on its motion for summary judgment, the defendant bore the initial burden to negate, with evidence, the factual claims as framed by the vexatious litigation counts of the complaint. See 10 Marietta Street, LLC v. Melnick Properties, LLC, 216 Conn. App. 262, 272, 285 A.3d 82 (2022) ("[o]n a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint" (emphasis in original; internal quotation marks omitted)); see also Practice Book § 17-45 (providing that motion for summary judgment must be supported by appropriate documents). The factual claims of those counts can be distilled to the following: the defendant lacked probable cause when it (1) asserted the special defense of contributory negligence and (2) denied the allegations of the complaint that stated that (a) Smith failed to stop and slow his vehicle when he approached the intersection and collided with the plaintiff’s vehicle, (b) the collision and resulting injuries and damages sustained by the plaintiff were proximately caused by Smith’s negligence, (c) the plaintiff suffered injuries, incurred medical bills, and lost wages as a result of Smith’s negligence, (d) Smith was underinsured, (e) the plaintiff complied with her duties under the terms of her insurance policy with the defendant, and (f) the defendant was liable for her damages that exceeded the amount covered by Smith’s insurance policy. In other words, the defendant had the burden to demonstrate the absence of any genuine issue of material fact that it had probable cause to assert that special defense and to deny these various allegations.
[56–58] The probable cause inquiry in the present case, therefore, entails a consideration of whether, on the basis of the facts known by the defendant at the times it asserted the special defense and denied or asserted that it lacked sufficient information to admit or deny those allegations, a reasonable person familiar with Connecticut law would have believed that probable cause existed for the defendant to do so. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 104–105, 912 A.2d 1019. In the present case, the court based its probable cause determination on the following reasoning: "The allegations required to be [pleaded] in a negligence action are generally not within a defendant’s knowledge. In the present case, [the plaintiff’s] complaint alleged that her injuries were proximately caused by the defendant’s negligence. … [The plaintiff’s] claim for vexatious litigation is founded on [the defendant’s] being in possession of her medical bills and report, a witness’ statement and the police report. These are facts, unlike the signing of a promissory note or mortgage deed, that are not within a defendant’s personal knowledge or necessarily subject to ascertainment. Moreover, [the plaintiff’s] assertion that possession of these documents establishes a basis to assert a basis for vexatious suit upon the failure to admit the veracity of the information contained in them would compel a finding that a defendant must make a credibility determination without the benefit of subjecting witnesses to the crucible of trial. … Similarly, [the plaintiff] alleged that Smith’s negligence was a proximate cause of her injuries. Such a combined legal and factual conclusion is manifoldly not within the knowledge of the defendant. In the present case, as argued by [the defendant], ‘it was necessary to fully substantiate facts and information through the course of discovery and, as that was done, the complaint was amended to address what had been substantiated.’ Given the intrinsic uncertainty of the nature of a claim of injuries proximately caused by another’s negligence, [the defendant] had probable cause to answer the complaint in the manner in which it did." (Citation omitted; emphasis omitted; footnotes added.).
On appeal, the defendant reiterates this argument, namely, that it is easier for counsel to plead contributory negligence in a case than it is not to plead it and then, after facts are developed, to move to amend the answer. When asked during oral argument before this court to specify the evidence in the record that supports its claim that it had probable cause to file the special defense of contributory negligence, the defendant’s counsel stated that the defendant’s position was that "there could be evidence developed" subsequent to the filing of its special defense. We disagree, as "Connecticut is a fact pleading jurisdiction," under which "allegations must be made ‘with reasonable cause’ and with a good faith belief in their truth. See Practice Book §§ 4-2 (b) and 10-5." CIT Bank, N.A. v. Francis, 214 Conn. App. 332, 354-55, 280 A.3d 485 (2022) (Bright, C. J., concurring). Moreover, "discovery is used to develop claims that have been properly pleaded, not to create them." Id., at 357, 280 A.3d 485; see also Somers v. Chan, supra, 110 Conn. App. at 535, 955 A.2d 667 ("[o]ur rules of practice require all allegations [in pleadings] to be founded on a reasonable basis"). Thus, the assertion of an allegation or special defense with no reasonable basis for doing so, and the use of discovery to see if the claim can be substantiated and amend the complaint if it cannot, is contrary to our pleading requirements. See Practice Book § 10-5 ("[a]ny allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses … as may have been necessarily incurred by the other party by reason of such untrue pleading").
On May 15, 2017, the plaintiff filed an offer of compromise, in which she offered to "resolve this case" for $200,000.
We note that the Smith action did not involve an allegation of negligence against the defendant. Rather, the plaintiff alleged negligence against Smith, who was underinsured and ultimately settled with the plaintiff for the limit of his policy, and the plaintiff alleged a claim of breach of contract against the defendant, which was brought into the action for purposes of providing coverage pursuant to the underinsured motorist provision of the plaintiff’s insurance policy with the defendant. Significantly, the plaintiff has not based this vexatious ligation action on the defendant’s failure to admit its own negligence in the Smith action, and, thus, the defendant’s claims to that effect are without merit.
On April 24, 2017, the defendant filed an offer of compromise, in which it offered to settle the plaintiff’s claims for $25,000. It thereafter filed a second offer of compromise on April 2, 2018, in which it increased its settlement offer to $35,000.
We first conclude that the court, in making its probable cause determination, did not apply the proper legal standard. See Ferri v. Powell-Ferri, 200 Conn. App. 63, 73, 239 A.3d 1216 (whether court applied correct legal standard involves question of law subject to plenary review), cert. denied, 335 Conn. 970, 240 A.3d 285 (2020). Nowhere in the court’s decision did the court point out the specific information known to the defendant at the time it filed its answer, amended answers and special defense of contributory negligence, or that no genuine issue of material fact existed as to the defendant’s knowledge, nor did the court determine whether a reasonable person, knowing that information, would have had a reasonable, good faith belief in the facts alleged in the answers and the validity of the special defense of contributory negligence asserted. We agree with the plaintiff that the court should have looked "critically at each representation at issue alongside the information within [the defendant’s] knowledge at the time it made the representation," and determined whether any genuine issues of material fact existed as to the defendant’s knowledge.
The court focused its analysis on whether genuine issues of material fact existed as to the cause of the plaintiff’s injuries. We acknowledge that, generally, the truth of the allegations pleaded in a negligence action likely will not be within a defendant’s knowledge and that it is typically necessary to substantiate information and facts regarding a party’s claimed injuries. Indeed, it will be a rare case in which a party’s denial of allegations concerning causation of injuries will give rise to a vexatious litigation claim. For that reason, it is understandable why the court focused its analysis on whether genuine issues of material fact existed as to the cause of the plaintiff’s injuries, which is almost always disputed in a negligence action, even when there is no dispute as to the cause of the accident.
The present case, however, is not a typical negligence action, and, thus, the court’s conclusion that the allegations of the complaint in the Smith action concerned matters "generally not within a defendant’s knowledge" does not take account of all of the factual circumstances of this case. By limiting its analysis to the issue of the causation of the plaintiff’s injuries, the court did not take into account the defendant’s denials of allegations that Smith failed to stop and slow his vehicle when he approached the intersection and collided with the plaintiff’s vehicle, the collision was caused by Smith’s negligence, Smith was underinsured, the plaintiff complied with her duties under the terms of her insurance policy with the defendant, and the defendant was liable under the plaintiff’s insurance policy for her damages that exceeded the amount covered by Smith’s insurance policy, as well as the defendant’s assertion of the special defense of contributory negligence.
As we stated previously in this opinion, our rules of practice require that allegations, including denials, be made on a reasonable basis; see Practice Book § 10-5; and a defendant, in an answer, "shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally." (Emphasis added.) Practice Book § 10-46. In other words, "[i]f the allegation is true in part, that part should be admitted and the balance denied. Evasive denials are not to be countenanced." 2 J. Kaye & W. Effron, supra, Form 105.3, authors’ comment, p. 155. As we stated previously in this opinion, in the present case the defendant did just that in its December 15, 2016 answer when it admitted the portion of paragraph 7 of the amended complaint in the Smith action alleging that the accident was caused by "Smith’s failure to keep a proper and reasonable lookout for other motor vehicles upon the roadway," but asserted that it was without sufficient information to either admit or deny the remaining allegations of that paragraph. In its initial and amended answers, however, the defendant asserted blanket denials of allegations in the Smith action, only a portion of which related to causation of the plaintiff’s injuries, and the court did not take into consideration whether the defendant had probable cause to deny the portion of the allegations not relating to causation of the plaintiff’s injuries, or the special defense of contributory negligence. As a result, the court did not consider if genuine issues of material fact existed as to whether the defendant had probable cause for answering the complaint in the manner in which it did with respect to these other allegations and asserting the special defense, as the defendant’s own internal investigation indicated that Smith was 100 percent responsible for causing the accident.
[59] Moreover, in making its probable cause finding, the court does not appear to have considered each of the specific factual allegations in the complaint. This is apparent from the court’s decision, which lacks references to many of the allegations concerning the information of which the defendant was aware when it filed its answer, amended answers, and special defense. Nor did the court consider whether the defendant submitted any evidence in support of its motion for summary judgment to rebut the plaintiff’s allegations. The plaintiff also asserts that, if the court had applied the proper standard and viewed the evidence in the light most favorable to the plaintiff, "it would have seen that there were, at the very least, material issues of fact with respect to whether [the defendant] had probable cause for each of its representations in the pleadings and its special defense …. " We agree. The court did refer in its decision to the allegation that the defendant’s "own investigation concluded that … Smith was TOO [percent] liab[le]’ for the accident" but, nevertheless, found probable cause for the defendant to assert the special defense of contributory negligence without addressing that allegation. Additionally, although the court did mention that "[the plaintiff’s] claim for vexatious litigation [was] founded on [the defendant’s] being in possession of her medical bills and report, a witness’ statement and the police report," it excluded from that list of supporting documents a recorded statement the defendant had taken from the plaintiff and, nonetheless, concluded that the documents were facts "not within a defendant’s personal knowledge …." In Dorfman v. Smith, supra, 342 Conn. at 586, 271 A.3d 53, our Supreme Court noted that, through the course of the defendant’s investigation of the plaintiff’s claim, "the defendant acquired the police report regarding the collision, the plaintiff’s recorded statement, and the recorded statement of … Guman, a witness to the collision who was not listed in the police report. The report and the statements all noted Smith’s failure to stop at the stop sign. Based on this information, two claims specialists employed by the defendant both concluded that Smith was 100 percent liable for the collision and noted their findings in the claim file." The trial court in the present case concluded that the defendant lacked knowledge of the contents of those documents. There is nothing in the record, however, to support the court’s determination, especially given that the defendant, as part of its business practice, undertook a lengthy and in-depth investigation into the circumstances of the accident, which took place over the course of one year prior to when the defendant was brought into the Smith action. Moreover, the court’s determination concerning the information within the defendant’s knowledge or of which it was aware amounts to a factual finding regarding a disputed issue in the case; see generally Roger B. v. Commissioner of Correction, 190 Conn. App. 817, 839, 212 A.3d 693 (habeas court made factual finding about what petitioner knew), cert. denied, 333 Conn. 929, 218 A.3d 70 (2019), and cert. denied, 333 Conn. 929, 218 A.3d 71 (2019); Winchester v. McCue, 91 Conn. App. 721, 729, 882 A.2d 143 (there was sufficient factual basis for court’s finding regarding independent knowledge possessed by parties), cert. denied, 276 Conn. 922, 888 A.2d 91 (2005); which is not appropriate on summary judgment.
As we stated previously in this opinion, in the prior appeal in the Smith action, our Supreme Court, in construing the allegations of the complaint in the light most favorable to the plaintiff, noted that, "[i]n answering the complaint [on May 17, 2016], the defendant pleaded that either it denied or did not have sufficient information to admit the allegations that Smith had failed to stop at a stop sign, causing the collision and the plaintiff’s resulting injuries. The defendant also asserted a special defense of contributory negligence, even though it knew this to be false." (Emphasis added.) Dorfman v. Smith, supra, 342 Conn. at 587, 271 A.3d 53. This further supports our determination that the court in the present case did not construe the allegations of the complaint in the light most favorable to the plaintiff.
[60–63] Additionally, in the present case, the defendant did not submit documentary evidence or affidavits demon- strating the absence of a genuine issue of material fact that it lacked knowledge of the contents of the documents and information gathered as part of its investigation, or demonstrating that it had an objectively reasonable, good faith belief in the facts alleged in its answer and amended answers, or in the validity of the special defense of contributory negligence asserted. See Rockwell v. Rockwell, 178 Conn. App. 373, 397–98, 175 A.3d 1249 (2017), cert. denied, 328 Conn. 902, 177 A.3d 563 (2018); see also Martin Franchises, Inc. v. Cooper U.S., Inc., 164 Conn. App. 486, 501, 137 A.3d 882 (2016) ("[w]here the affidavits of the moving party do not affirmatively show that there is no genuine issue of material fact as to all relevant issues in the case, summary judgment should be de- nied"). Although the question of what facts constitute probable cause is one of law, over which our review is plenary; see Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 94, 912 A.2d 1019; when the underlying facts that form the basis for probable cause are disputed and factual findings relating thereto must be made by the trier of fact, we cannot make a determination of whether probable cause exists in the exercise of our plenary review, and summary judgment is not appropriate. See Rozbicki v. Sconyers, supra, 198 Conn. App. at 791, 234 A.3d 1061 (trial court improperly granted defendant’s motion for summary judgment because genuine issue of material fact existed as to whether defendant had probable cause to assert special defense); Cody Real Estate, LLC v. G & H Catering, Inc., 219 Conn. App. 773, 792, 296 A.3d 214 (it is not within province of Appellate Court to make factual findings), cert. denied, 348 Conn. 910, 303 A.3d 11 (2023).
Nothing in DeStefano’s affidavit negates the plaintiff’s allegation that the defendant knew from its investigation that Smith was 100 percent liable for the accident when it filed its special defense asserting that the plaintiff was contributorily negligent. There are only two averments in the affidavit that might be construed as relating to the issue of probable cause: (1) "Attorney Joseph Grippe filed an answer and special defenses to the amended complaint on May 17, 2016," and (2) "[the defendant] relied on the skill and judgment of Attorney Grippe to draft an appropriate response to the amended complaint …." The defendant, however, did not assert a special defense of advice of counsel, which is a complete defense to a vexatious litigation claim; see Kazemi v. Allen, supra, 214 Conn. App. at 117, 279 A.3d 742; although it did argue in its memorandum of law in support of its motion for summary judgment that it relied on the advice of counsel. Nevertheless, the court did not address that argument in light of its determination that the defendant had probable cause to answer the complaint in the manner in which it did. On appeal, the defendant asserts in its brief that its responsive pleadings in the Smith action were prepared and filed by counsel, and that it "relied on the independent judgment of counsel to draft an appropriate response to the amended complaint in the [Smith action]." Aside from these few assertions, the defendant cited to no authority and provided no analysis or argument in support of a reliance on the advice of counsel claim, or concerning the court's failure to address that claim in its decision granting the motion for summary judgment. Accordingly, in this appeal, we deem any such claim relating to advice of counsel abandoned. See, e.g., Fraser Lane Associates, LLC v. Chip Fund 7, LLC, 221 Conn. App. 451, 472, 301 A.3d 1075 (2023).
The concurring and dissenting opinion relies on the amount of the jury award in the Smith action as evidence of probable cause. We do not believe that the amount of the jury award in the Smith action is relevant to the issue in this case, which concerns whether the defendant met its burden, in moving for summary judgment, of establishing the absence of any genuine issue of material fact that it had probable cause to answer the complaint in the Smith action in the manner in which it did and to assert the special defense of contributory negligence. As we have stated in this opinion, the probable cause determination "entails a consideration of whether, on the basis of the facts known by the defendant at the times it asserted the special defense and denied or asserted that it lacked sufficient information to admit or deny those allegations, a reasonable person familiar with Connecticut law would have believed that probable cause existed for the defendant to do so." (Emphasis added.) In light of our conclusion that we cannot make a determination of whether probable cause exists in the exercise of our plenary review under the circumstances of this case, in which the underlying facts that form the basis for probable cause are disputed and factual findings must be made by a trier of fact, we do not agree that the amount of damages awarded in the Smith action should be viewed as evidence that the defendant had probable cause to deny the material allegations of the complaint. That is especially true given that probable cause may ultimately be found as to the defendant’s denials of allegations concerning causation of injuries, but also may be found lacking with respect to the defendant’s denials of allegations concerning the cause of the accident. Nevertheless, we do note that the concurring and dissenting opinion’s analysis on this point fails to recognize that the jury awarded the plaintiff damages in the amount of $ 169,928, which amounts to $30,072 less than the $200,000 she sought, not $80,072. Following the jury’s verdict, the parties entered into a stipulation that, after a reduction of the tort-feasor's payment of $50,000 to the plaintiff, judgment could enter in the amount of $119,928. The fact that the defendant's obligation to pay the plaintiff was reduced by the $50,000 that the plaintiff already had received in settlement from Smith had no bearing on the jury’s determination that the plaintiff had established damages in the amount of $169,928, which the plaintiff received from the defendant and Smith combined.
[64] The present case does not involve a situation in which the facts giving rise to the existence of probable cause are undisputed; rather, a factual finding must be made, at a minimum, as to the defendant’s knowledge at the time it filed its answer, amended answers, and special defense of contributory negligence in the Smith action. As our Supreme Court explained in DeLaurentis v. New Haven, supra, 220 Conn. at 252-53, 597 A.2d 807: "The third requirement for a vexatious suit action is that the defendant’s claims lacked ‘probable cause.’ Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law." See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 90-92, 912 A.2d 1019 (trial court bifurcated issue of probable cause, conducted evidentiary hearing and then concluded that probable cause existed); Rock- well v. Rockwell, 196 Conn. App. 763, 771, 230 A.3d 889 (2020) (genuine issue of material fact had to be resolved to determine whether defendant had probable cause to pursue action); see also Liu v. Tangney, Docket No. 3:19-CV-894 (OAW), 2022 WL 4367594, *7 (D. Conn. September 21, 2022) (parties had material disagreement about whether party’s knowledge of facts would satisfy probable cause standard and court could not determine whether party acted without probable cause without first making credibility determination, which was not appropriate on summary judgment).
Accordingly, on the basis of our review of the record, viewed in the light most favorable to the plaintiff, we conclude that the defendant did not meet its burden, as the party moving for summary judgment, of showing the absence of an issue of material fact as to whether it had probable cause for pleading in the manner in which it did in the Smith action. Therefore, the court improperly granted the defendant’s motion for summary judgment as to the vexatious litigation counts of the complaint on the basis of its probable cause determination. See Rozbicki v. Sconyers, supra, 198 Conn. App. at 781, 234 A.3d 1061 (defendants were not entitled to summary judgment as to issue of probable cause because genuine issue of material fact existed as to party’s knowledge). The next issue we must address is the proper remedy. As we stated previously in this opinion, the defendant raised five grounds in support of its motion for summary judgment. Because the court based its decision granting the motion solely on the basis of its finding of probable cause, as to which we have determined the court applied an improper standard and will require factual findings that are not appropriate on summary judgment, the court never addressed the other four arguments raised by the defendant in support of its motion for summary judgment. On appeal, the defendant has not argued that, if this court reverses the summary judgment in its favor, the matter should be remanded for further proceedings on its remaining claims that were never addressed by the trial court. Nevertheless, we believe that the proper course of action here is to remand the case to the trial court for further proceedings to address the remaining grounds raised in the defendant’s motion for summary judgment. See generally Kellogg v. Middlesex Mutual Assurance Co., 211 Conn. App. 335, 356-57, 272 A.3d 677 (2022) (when trial court did not address arguments raised in support of motion for summary judgment due to court’s improper reliance on decisions relating to arbitration award and motion to dismiss, appropriate course for Appellate Court was to remand case for further proceedings on motion); Teodoro v. Bristol, 184 Conn. App. 363, 383-84, 195 A.3d 1 (2018) (reversing summary judgment rendered in favor of defendant and remanding matter for further proceedings on motion); Greene v. Keating, 156 Conn. App. 854, 860–62, 115 A.3d 512 (2015) (because trial court decided motions for summary judgment on ground not raised by parties and, essentially, did not rule on parties’ motions, it was appropriate to remand matter for trial court’s consideration of matter in first instance); see also Singhaviroj v. Board of Education, 124 Conn. App. 228, 236, 4 A.3d 851 (2010) ("[b]ecause a res judicata or collateral estoppel claim is the ‘civil law analogue’ to a double jeopardy challenge, a court faced with such a claim must resolve that question before trial may commence," and, therefore, court improperly denied motions for summary judgment without determining whether genuine issue of material fact existed with respect to res judicata and collateral estoppel defenses).
In light of our determination that the court improperly granted the defendant’s motion for summary judgment as to the counts of the complaint alleging vexatious litigation, we need not address the plaintiff's claim that the court improperly denied her the ability to obtain meaningful discovery related to her claims of vexatious litigation prior to granting the defendant’s motion for summary judgment.
III
The plaintiff’s next claim is that the court did not engage in the proper analysis when it granted the defendant’s motion for summary judgment as to the counts of her complaint alleging violations of CUT-PA and CUIPA. Specifically, the plaintiff argues that the court, in its decision, did not address the CUTPA/CUIPA claims in any meaningful way in that it did not articulate the necessary elements of a cause of action pursuant to CUTPA or CUIPA, and did not discuss her allegations relating to those claims. Instead, the plaintiff argues, the court stated that its determination regarding probable cause rendered it unnecessary to address the other claims, even though probable cause is not a necessary predicate to a claim pursuant to CUTPA or CUIPA. The defendant, relying on Dorfman v. Smith, supra, 342 Conn. at 616, 271 A.3d 53, argues that the court properly granted its motion for summary judgment because the plaintiff’s CUTPA claims, which are based on alleged violations of CUIPA, are barred by the doctrine of absolute immunity under the litigation privilege. We agree with the defendant.
We first briefly set forth the basis for our Supreme Court’s decision in Dorfman concluding that the plaintiff’s CUTPA claim in that case was "barred by the doctrine of absolute immunity under the litigation privilege." Id. Specifically, the court stated: "A business practice of responding falsely to discovery requests, to the extent it involves ‘[m]isrepresenting pertinent facts or insurance policy provisions relating to coverages at issue,’ is prohibited under CUIPA. General Statutes § 38a-816 (6) (A). The parties have not cited any case law—from this court, the federal courts, or sister state courts—that has addressed whether the litigation privilege applies to claims for violating statutes prohibiting unfair insurance practices. In our own research, we have found only one case addressing this issue. The United States District Court for the Eastern District of Pennsylvania, in Harrison v. Nationwide Mutual Fire Ins. Co., 580 F. Supp. 133, 136 (E.D. Pa. 1983), and its progeny, held that, when an unfair insurance practices claim is premised on pleadings or documents filed in and relevant to an underlying judicial proceeding, the conduct is absolutely privileged, even if the statements were made falsely or maliciously.
"The plaintiff argues, however, that absolute immunity would undermine the legislative intent of CUIPA, which is to hold Insurers accountable for misrepresenting facts relating to coverage issues. In essence, the plaintiff argues that CUIPA abrogates absolute immunity as to the conduct alleged under § 38a-816 (6). Contrary to the plaintiff’s argument, CUIPA does not explicitly abrogate absolute immunity. Although § 38a-816 (6) in fact prohibits the business practice of misrepresenting facts relating to coverage issues, CUIPA does not impose liability for this conduct by authorizing a private right of action but, instead, limits the remedy under that act to administrative action by the Commissioner of Insurance. Rather than establishing that immunity should be abrogated, § 38a-816 shows that the legislature prescribed remedies other than civil liability for deterring and curing the alleged conduct, and such remedies are available to the plaintiff in the present case. Additionally, the legislature is aware of both this court’s precedent regarding the applicability of the litigation privilege to litigation conduct, as well as the various other tools available to the court to regulate and police litigation misconduct. See, e.g., Chadha v. Charlotte Hungerford, Hospital, [272 Conn. 776, 793 n.2l, 865 A.2d 1163 (2005)] (‘the legislature is presumed to be aware of prior judicial decisions involving common-law rules’). If the legislature thought that the particular litigation conduct at issue—filing false discovery responses—had become such a systemic problem that neither the judiciary nor the Commissioner of Insurance has been able to police it, the legislature would have been explicit in abrogating the immunity afforded by the litigation privilege.
"Nevertheless, our case law makes clear that an insurer may be held liable under CUTPA for conduct proscribed by § 38a-816 (6). See Mead v. Bums, 199 Conn. 651, 663, 509 A.2d 11 (1986) (‘it is possible to state a cause of action under CUTPA for a violation of CUIPA’). That does not necessarily mean that the legislature intended to abrogate a party’s absolute immunity from CUTPA claims based on a business practice of filing false discovery responses. Although there is minimal case law regarding CUIPA and the litigation privilege, there is a wealth of case law regarding CUTPA and the litigation privilege. Courts consistently have applied the litigation privilege to CUTPA claims premised on false communications made during and relevant to an underlying judicial proceeding. See, e.g., Simms v. Seaman, [308 Conn. 523, 561–62, 69 A.3d 880 (2013)] (discussing federal case law that consistently has held that CUTPA claims premised on false communications made during and relevant to underlying judicial proceeding are barred by litigation privilege); Bruno v. Travelers Cos., [172 Conn. App. 717, 722, 727-29, 161 A.3d 630 (2017)] (CUTPA claim against insurance companies was barred by litigation privilege); Tyler v. Tatoian, [164 Conn. App. 82, 86-87, 93-94, 137 A.3d 801] (CUTPA claim against attorney for communications made in course of prior judicial proceeding was barred by litigation privilege) [cert. denied, 321 Conn. 908, 135 A.3d 710 (2016)]. These holdings are in line with case law from other jurisdictions, the majority of which have applied the litigation privilege to both common-law and statutory causes of action, including claims for unfair trade practices brought pursuant to the jurisdiction’s analogue to CUTPA….
"Under this precedent, the litigation privilege bars CUTPA claims, like the claim at issue, premised solely on general allegations of intentionally false discovery responses because these claims merely challenge the making of false statements. Additionally, there are other remedies available to deter the alleged conduct. See Tyler v. Tatoian, supra, 164 Conn. App. at 93-94, 137 A.3d 801. This does not mean, however, that a defendant enjoys absolute immunity from all CUTPA claims under the litigation privilege, even those premised on a violation of CUIPA. Rather, we merely hold that this specific claim—a business practice of filing false discovery responses—is afforded absolute immunity. We recognize that the legislature intended to prohibit certain unfair and deceptive business practices by enacting CUTPA and CUIPA, but the plaintiff has not cited, and we have not discovered, any provision of these statutes that explicitly abrogates the common-law litigation privilege, which, historically, has been applied to false and malicious statements made during and relevant to judicial proceedings. Our holding leaves open the possibility that other CUTPA claims may not be barred by absolute immunity under the litigation privilege. Thus, we conclude that the litigation privilege bars the plaintiff’s CUTPA-CUIPA claim." (Citations omitted; footnote omitted.) Dorfman v. Smith, supra, 342 Conn. at 617-20, 271 A.3d 53.
In the present case, the plaintiff alleges violations of CUTPA based on a violation of CUIPA in counts four and five of the complaint. Specifically, both counts incorporate the allegations of paragraphs 1 through 64 of count two, which alleges a claim for statutory vexatious litigation. Thus, counts four and five are based on the same conduct underlying the vexatious litigation claims, namely, the defendant’s conduct in the Smith action of denying allegations of the complaint that it knew to be true and asserting a special defense of contributory negligence that it knew to be false. Count four further alleges that the defendant’s conduct, as set forth, violates CUIPA in that "the defendant made, published, and disseminated statements before the public with respect to the business of insurance that it knew to be untrue, deceptive, or misleading, in violation of … § 38a-816 (2)," and that such violations caused the plaintiff an ascertainable loss and damages. Count five alleges a busi- ness practice by the defendant of insurance misconduct by filing false pleadings and lists thirteen other cases in which the defendant was alleged to have failed to admit allegations it knew to be true in its answer to a complaint and pleaded an affirmative defense it knew to be false. Count five further alleges that the defendant’s general business practice violates § 38a-816 (6) of CUIPA in that the defendant misrepresents facts, and that the plaintiff suffered an ascertainable loss and damages.
Notably, the damages claimed by the plaintiff in the present case as a result of the defendant's alleged CUTPA/CUIPA violations are identical to the damages the plaintiff claimed to have sustained for the defendant’s CUTPA/CUIPA violation in the Smith action, and included damages for "(a) [w]rongfully, intentionally, and maliciously withholding money due to [the plaintiff]; (b) [c]ausing [the plaintiff] to suffer extreme upset, fear, anger, frustration, and distress as a direct result of the defendant’s intentional and malicious acts; (c) [c]ausing [the plaintiff] to incur unnecessary legal fees and expenses; and (d) [d]epriving [the plaintiff] of her insurance benefits."
[65] We fail to see how these allegations of a business practice of filing false pleadings differ in any meaningful way from the alleged business practice of responding falsely to discovery requests underlying the CUTPA claim at issue in Dorfman v. Smith, supra, 342 Conn. at 617–20, 271 A.3d 53. In determining that the CUTPA claim was barred by the litigation privilege, our Supreme Court relied on precedent from other courts, which "consistently have applied the litigation privilege to CUTPA claims premised on false communications made during and relevant to an underlying judicial proceeding." Id., at 618, 271 A.3d 53. Although our Supreme Court left "open the possibility that other CUTPA claims may not be barred by absolute immunity under the litigation privilege"; id., at 620, 271 A.3d 53; the present case does not present such a situation. The allegations underlying the plaintiff’s CUTPA/CUIPA claims in the present case are based on alleged false representations and pleadings of the defendant in an underlying judicial proceeding. Moreover, the plaintiff has not directed this court to any statutory provision abrogating the common-law litigation privilege, "which, historically, has been applied to false and malicious statements made during and relevant to judicial proceedings." Id.
[66] Although we agree with the plaintiff that the court did not apply the correct standard in rendering summary judgment as to the CUTPA/CUIPA counts of her complaint, as the court’s probable cause determination was not dispositive of these counts, nonetheless, we affirm the summary judgment rendered in favor of the defendant on these counts on the alternative ground that the claims in counts four and five are barred by the litigation privilege. "[I]t is axiomatic that [an appellate court] may affirm a proper result of the trial court for a different reason. … Silano v. Cooney, 189 Conn. App. 235, 241 n.6, 207 A.3d 84 (2019); see also Helvering v. Gowran, 302 U.S. 238, 245, 58 S. Ct. 154, 82 L. Ed. 224 (1937) (the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground)." (Internal quotation marks omitted.) Tracey v. Miami Beach Assn., 216 Conn. App. 379, 396 n.19, 288 A.3d 629 (2022), cert. denied, 346 Conn. 919, 291 A.3d 1040 (2023).
The judgment is reversed only with respect to the granting of the defendant’s motion for summary judgment as to the vexatious litigation counts of the complaint and the case is remanded for further proceedings consistent with this opinion; the judgment is affirmed in all other respects.
In this opinion ALVORD, J., concurred.
ELGO, J., concurring in part and dissenting in part.
This case presents a question of first impression regarding an action for vexatious litigation predicated on a defendant’s answer to a civil complaint. I agree with the majority’s rejection of the claims of the plaintiff, Tamara Dorfman, regarding her ability to obtain meaningful discovery prior to the rendering of summary judgment and the analysis employed by the trial court on her claims under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-815 et seq. I disagree in part with the majority’s conclusion that the court improperly rendered summary judgment in favor of the defendant, Liberty Mutual Fire Insurance Company, on the vexatious litigation counts of her complaint. I therefore respectfully dissent in that limited regard.
Because the facts giving rise to this appeal are set forth in the majority opinion, I focus my attention on the plaintiff’s vexatious litigation claims. As our Supreme Court has explained, "[t]he cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages." Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553, 944 A.2d 329 (2008). "A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary to prove want of probable cause, malice and a termination of suit in the plaintiff’s favor." Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978); see also Allstate Ins. Co. v. Opie, United States District Court, Docket No. 3:13-CV-01101 (RNC), 2014 WL 6977736 (D. Conn. December 9, 2014) ("vexatious litigation and malicious prosecution are so similar as to be essentially the same tort").
The archetype of either a common-law or statutory action for vexatious litigation is the existence of a prior lawsuit commenced by the defendant against the plaintiff. See, e.g., Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. at 553, 944 A.2d 329 ("[t]he cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages"); Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007) ("[v]exatious litigation [generally] requires a plaintiff to establish that … the previous lawsuit or action was initiated or procured by the defendant against the plaintiff’); Christian v. Iyer, 221 Conn. App. 869, 871–72, 303 A.3d 604 (2023) (plaintiffs brought vexatious litigation action against defendant neighbors for instituting prior trespass action against them); Greene v. Keating, 197 Conn. App. 447, 449-50, 231 A.3d 1178 (2020) (plaintiff brought vexatious litigation action against defendant law firm for instituting prior action against her).
This case does not involve a prior action initiated by the defendant against the plaintiff, but rather one instituted by the plaintiff against the defendant. See Dorfman v. Smith, 342 Conn. 582, 586–87, 271 A.3d 53 (2022). It thus falls outside the archetype of a vexatious litigation action, as the plaintiff here does not claim that she was "wrongly sued"; see Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. at 553, 944 A.2d 329; by the defendant. Instead, the plaintiff’s vexatious litigation action is predicated on her contention that the defendant improperly (1) asserted the special defense of contributory negligence and (2) denied certain paragraphs of her complaint in that prior action.1a I address each in turn. I
Connecticut law has recognized that an action for vexatious litigation may lie with respect to special defenses asserted by a defendant in a prior action between the parties.2a See Rozbicki v. Sconyers, 198 Conn. App. 767, 783, 234 A.3d 1061 (2020) (summary judgment improperly granted because genuine issue of material fact existed as to whether defendants had probable cause to assert special defenses); Forsstrom v. Smanik, Superior Court, judicial district of Windham at Putnam, Docket No. CV-12-6005759-S, 2013 WL 3316136 (June 10, 2013) (56 Conn. L. Rptr. 248, 250) (denying motion to strike because vexatious litigation count of complaint sufficiently alleged that defendant played material role in assertion of "vexatious defenses" without probable cause). In the prior action at issue here, the defendant, in its May 17, 2016 answer and special defenses, alleged contributory negligence as a special defense in response to the plaintiff’s amended complaint, which she filed on December 22, 2015. For that reason, I agree with the majority that it was not improper for the plaintiff to commence a vexatious litigation action predicated on the defendant’s assertion of that special defense.
In moving for summary judgment, the defendant bore the burden of demonstrating the absence of a genuine issue of material fact on the question of whether it possessed probable cause to assert that special defense. See Windsor v. Loureiro Engineering Associates, 181 Conn. App. 356, 369-71, 186 A.3d 729 (2018) (defendant who moves for summary judgment on special defense bears initial burden of proof); Trotter v. Anderson, 417 F.2d 1191, 1192 (7th Cir. 1969) (defendant seeking summary judgment on special defense of contributory negligence has "heavy burden" in establishing absence of genuine factual dispute). As this court has noted, "[t]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a person of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. … Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man [or woman] in the belief that he [or she] has lawful grounds for prosecuting the defendant in the manner complained of. … Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he [or she] lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted. … [T]he existence of probable cause is an absolute protection against an action for [vexatious litigation], and what facts, and whether particular facts, constitute probable cause is always a question of law. … [T]he standard is an objective one that is necessarily dependent on what the [party] knew when [it asserted the special defense]." (Citation omitted; internal quotation marks omitted.) Rozbicki v. Sconyers, supra, 198 Conn. App. at 774-75, 234 A.3d 1061.
Because the defendant failed to adduce evidence in support of its motion for summary judgment that would support a good faith belief that the plaintiff was negligent in any manner, I would conclude that the court improperly rendered summary judgment in favor of the defendant with respect to the special defense of contributory negligence.3a I therefore concur with the majority opinion in this respect. II
The plaintiff’s vexatious litigation counts also are predicated on the defendant’s denial of certain paragraphs of her complaint in the prior action between the parties.4a For two distinct reasons, I would conclude that the court properly rendered summary judgment with respect to those general denials.
A
First, I do not believe that the plaintiff has met her burden of establishing that the scope of an action for vexatious litigation encompasses general denials pleaded by a defendant in response to a civil complaint in a prior action. In that regard, it bears emphasis that, in every appeal before this court, "the burden rests with the appellant to demonstrate reversible error." Jalbert v. Mulligan, 153 Conn. App. 124, 145, 101 A.3d 279, cert. denied, 315 Conn. 901, 104 A.3d 107 (2014); see also Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986) ("[t]he burden is on the appellant to prove harmful error"); Harlow v. Stickels, 151 Conn. App. 204, 210, 94 A.3d 706 (2014) ("[a]n appellant bears the burden to show that there was error from which she appeals"). I am aware of no Connecticut authority, nor has the plaintiff identified any, that authorizes a plaintiff to maintain a vexatious litigation action on the basis of general denials pleaded by a defendant in response to a negligence claim in a prior action.5a To resolve that question of first impression in this state, I respectfully sub- mit that the appropriate analytical approach begins within the confines of Connecticut law.6a
"In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute." Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. at 554, 944 A.2d 329. "A statutory action for vexatious litigation under General Statutes § 52-568 … differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages." (Citation omitted.) Falls
Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007); see also Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 596, 715 A.2d 807 (1998) ("[t]he elements of a common-law or statutory cause of action for vexatious litigation are identical"). Because the plaintiff in this case alleged both common-law and statutory vexatious litigation, which actions are largely identical, I begin with the question of whether § 52-568 permits a party to maintain such an action on the basis of general denials pleaded by a defendant in its answer to a complaint. 1
Statutory Vexatious Litigation
Whether the legislature intended § 52- 568 to encompass a defendant’s general denials to paragraphs of a plaintiff’s complaint in a prior action presents a question of statutory interpretation, over which our review is plenary. See, e.g., 777 Residential, LLC v. Metropolitan District Commission, 336 Conn. 819, 827, 251 A.3d 56 (2020). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. … In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case …. In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. … When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and [common-law] principles governing the same general subject matter . … " (Internal quotation marks omitted.) Vitti v. Milford, 336 Conn. 654, 660, 249 A.3d 726 (2020).
Section 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." By its plain language, that statute applies to two classes of persons— those who commence and prosecute a civil action, and those who assert a defense thereto. The dispute in this case concerns the latter class.
Section 52-568 does not define the term "defense" and provides little clarity as to precisely what constitutes the assertion of a defense in a civil action. Broadly speaking, the term "defense" plausibly may be read to include both general denials and special defenses affirmatively pleaded by a defendant. See, e.g., JPMorgan Chase Bank, National Assn. v. Malick, 347 Conn. 155, 169, 296 A.3d 157 (2023) (noting that Black’s Law Dictionary "defines ‘defense’ as ‘[a] defendant’s stated reason why the plaintiff or prosecutor has no valid case … a defendant’s answer, denial, or plea’ ").
At the same time, General Statutes § 1-1 (a) requires us to construe statutory language in light of any peculiar or technical meaning it possesses in the law.7a In this regard, I note that the amendment that added the phrase "asserts a defense" to § 52-568 was enacted as part of the Tort Reform Act of 1986. See Public Acts 1986, No. 86-338, § 9 (P.A. 86-338). In ascertaining the apparent intent of the legislature in adding that language as part of its comprehensive tort reform, we must presume that the legislature was familiar with civil practice in this state and the fact that general denials are commonplace, consistent with our common law and rules of practice.8a See, e.g., Daley v. Kashmanian, 344 Conn. 464, 485, 280 A.3d 68 (2022) ("we presume that the legislature is aware of the common law on a particular subject"); State v. Miranda, 260 Conn. 93, 131–32, 794 A.2d 506 (noting "the presumption that the legislature is aware of the existence of the rules of practice … and intended to create a consistent body of law" (internal quotation marks omitted)), cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). The legislature nevertheless did not include the term "denial" in enacting or amending § 52-568. "[I]t is a well settled principle of statutory construction that the legislature knows how to convey its intent expressly …. " (Citations omitted.) Scholastic Book Clubs, Inc. v. Commissioner of Revenue Services, 304 Conn. 204, 219, 38 A.3d 1183, cert. denied, 568 U.S. 940, 133 S. Ct. 425, 184 L. Ed. 2d 255 (2012). Had the legislature intended to include general denials within the ambit of § 52-568, it could have defined the term "defense." Alternatively, the legislature simply could have added two words to the statute, so as to read "[a]ny person who … asserts a denial or defense to any civil action or complaint commenced and prosecuted by another …. " The legislature here did neither. See Branford v. Santa Barbara, 294 Conn. 803, 813, 988 A.2d 221 (2010) ("[w]e are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained" (internal quotation marks omitted)).
I am also mindful that "[l]egal terms … are to be presumed to be used in their legal sense. … In ascertaining legislative intent [r]ather than using terms in their everyday sense, [t]he law uses familiar legal expressions in their familiar legal sense." (Emphasis in original; internal quotation marks omitted.) Rutter v. Janis, 334 Conn. 722, 730-31, 224 A.3d 525 (2020). On multiple occasions, our Supreme Court has distinguished demals from defenses and counterclaims asserted by a party in response to a complaint. See, e.g., Electrical Contractors, Inc. v. Ins. Co. of the State of Pennsylvania, 314 Conn. 749, 760, 104 A.3d 713 (2014) (explaining that General Statutes § 49-42 (a) "permits the court to award attorney’s fees if it appears that any claim, denial, or defense is without substantial basis in fact or law" (emphasis added)); Nizzardo v. State Traffic Commission, 259 Conn. 131, 162, 788 A.2d 1158 (2002) ("[t]he word ‘pleading’ is defined as ‘[a] formal document in which a party to a legal proceeding … sets forth or responds to allegations, claims, denials, or defenses’ " (emphasis altered)).
I respectfully submit that the most familiar legal sense of the phrase "asserts a defense," as used by legal practitioners in this state in the context of responding to a complaint, refers to defenses that are affirmatively pleaded, rather than general denials set forth in a defendant’s answer. In my years in practice and on the bench, not once have I heard an attorney state that they were "asserting a denial" to the allegations of a complaint—they simply "denied" those allegations. By contrast, attorneys routinely "assert" special defenses and counterclaims—that vernacular is commonplace. See, e.g., Dorfman v. Smith, supra, 342 Conn. at 587, 271 A.3d 53 (noting that defendant, in answering complaint, "denied" certain allegations and "also asserted a special defense"); Assn. Resources, Inc. v. Wall, 298 Conn. 145, 157, 2 A.3d 873 (2010) ("[t]he defendant responded by filing an answer and asserting numerous special defenses"); Naples v. Keystone Building & Development Corp., 295 Conn. 214, 220, 990 A.2d 326 (2010) ("[t]he defendants filed an answer denying the plaintiffs’ allegations, as well as special defenses asserting that the plaintiffs’ claims were barred"); Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 778, 967 A.2d 1 (2009) (defendant "filed an answer asserting numerous special defenses" and counterclaims); Travelers Ins. Co. v. Namerow, 261 Conn. 784, 788, 807 A.2d 467 (2002) ("In response [to the complaint], the plaintiff filed an answer denying each of the defendants’ claims. The plaintiff also filed thirteen special defenses asserting, inter alia, that the policy did not cover the defendants’ loss because the defendants either expected or intended the loss."); Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 301, 780 A.2d 916 (2001) ("[t]he defendant denied liability, asserting no special defenses"); Connecticut National Bank v. Giacomi, 233 Conn. 304, 314, 659 A.2d 1166 (1995) (defendants "answered [the] complaint by denying liability and asserting identical special defenses and counterclaims").
In addition, I am sensitive to our obligation to "construe a statute as a whole … . " (Emphasis in original; internal quotation marks omitted.) Thomas v. Dept. of Developmental Services, 297 Conn. 391, 403-404, 999 A.2d 682 (2010); see also Nizzardo v. State Traffic Commission, supra, 259 Conn. at 155, 788 A.2d 1158 (courts engaging in statutory interpretation must be "faithful to the language of the act as a whole"). Significantly, § 52-568 is a punitive statute that exposes the specified classes of persons to both double and treble damages. See Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 536, 839 A.2d 1250 (2004) ("[a]n award of multiple damages … is an extraordinary remedy"); Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 41 n.44, 664 A.2d 719 (1995) ("[t]reble damages are punitive damages"); see also Kearney & Trecker Corp. v. Cincinnati Milacron, Inc., 562 F.2d 365, 373 (6th Cir. 1977) (describing treble damages as "extreme" sanction). In light of the gravity of those sanctions, I believe it is plausible that the legislature, in adding the phrase "asserts a defense to any civil action or complaint" to § 52-568, was referring to defenses that must be affirmatively pleaded and counterclaims, rather than general denials pleaded by a defendant in its answer.
Under our rules of statutory construction, ambiguity arises whenever statutory language is subject to more than one plausible interpretation. See, e.g., Redding v. Georgetown Land Development Co., LLC, 337 Conn. 75, 84 n.9, 251 A.3d 980 (2020) ("[o]ur case law is clear that ambiguity exists only if the statutory language at issue is susceptible to more than one plausible interpretation" (internal quotation marks omitted)); State v. Pond, 315 Conn. 451, 468, 108 A.3d 1083 (2015) ("[b]ecause the statutory language is subject to multiple, plausible interpretations, and it does not expressly address or resolve the certified question, [the language] is facially ambiguous"); Commissioner of Correction v. Freedom of Information Commission, 307 Conn. 53, 68, 52 A.3d 636 (2012) ("[b]ecause we believe that both of these interpretations are plausible, we conclude that the language [in question] is ambiguous"). In this case, I would conclude that the phrase "asserts a defense" is subject to more than one plausible interpretation. For that reason, § 52-568 is ambiguous, warranting resort to extratextual materials. See, e.g., State v. Fernando A., 294 Conn. 1, 17, 981 A.2d 427 (2009).
a
Legislative History
To resolve statutory ambiguity, it is appropriate to consider the circumstances surrounding the enactment of a statute or statutory amendment. See, e.g., State v. Pond, supra, 315 Conn. at 471, 108 A.3d 1083. Public Act 86-338, § 9, which amended § 52-568 to add the "asserts a defense" language in question, was enacted as part of a comprehensive tort reform in 1986. As our Supreme Court has observed, "[t]he Tort Reform Act was drafted in response to rapidly rising insurance rates, which, some believed, would be curtailed if tort liability could be limited and systematized. … As finally enacted, the act represents a complex web of interdependent concessions and bargains struck by hostile interest groups and individuals of opposing philosophical positions." (Footnote omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185, 592 A.2d 912 (1991); see also White v. Byelas Irrevocable Trust, 64 Conn. App. 506, 510-11, 780 A.2d 989 (2001) ("[i]n 1986, by enacting [P.A. 86-338] … the General Assembly replaced the common-law rule of joint and several liability with a system of apportioned liability that holds each defendant liable for only his or her proportionate share of damages" (internal quotation marks omitted)).
The legislative history of P.A. 86-338 reflects that the amendment of § 52-568 was an ancillary part of that reform that garnered relatively little discussion among legislators. Proponents of the changes to § 52-568 emphasized that "the number of suits, both serious and frivolous, [has] increased over the last several years." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1986 Sess., p. 312, statement of Harry P. Harris on behalf of Southwestern Area Commerce & Industry Association; see also id., p. 315, statement of Kathleen A. Leary, Vice President of the Business/Industry Council (noting that "[a]lso on the rise is the number of frivolous lawsuits being filed").
The primary change to § 52-568 as a result of P.A. 86-338 was the imposition of an additional penalty. The statute previously provided for an award of treble damages for any person who commenced a civil action (1) without probable cause and (2) with a malicious intent. See General Statutes (Rev. to 1985) § 52-568. Public Act 86-338 retained that penalty but added a provision imposing double damages on any person who commences a civil action without probable cause, irrespective of the question of malice. As Representative William L. Wollenberg, Chairman of the Judiciary Committee, explained when introducing the bill, "[Public Act 86-338] sets out … two standards, as opposed to what we have in [§ 52-568] today. If the action is brought without probable cause [there are] double damages, if the action is brought without probable cause and with malicious intent … there are treble damages. [That latter standard] is the law today. [Public Act 86-338] adds the double damages." 29 H.R. Proc., Pt. 16, 1986 Sess., p. 5739; see also 29 H.R. Proc., Pt. 22, 1986 Sess., pp. 8105-106, remarks of Representative Michael D. Rybak (noting that lack of probable cause is all that is required for award of double damages and remarking, "God help the poor lawyer who doesn’t read that section" of P.A. 86-338); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1986 Sess., p. 2220 (statement from Connecticut Association of Realtors, Inc., expressing support for "the stronger penalties provided for filing frivolous or vexa- tious suits"); id., p. 2340 (letter from Connecticut Society of Architects expressing support for "increasing sanctions against any person who commences and prosecutes any civil action or complaint against another without ‘probable cause’ "); id., p. 2377, statement of Raphael L. Podolsky, Acting Director of the Center for Advocacy and Research, Inc. (opposing amendment because P.A. 86-338 "imposes double damages for a suit brought without probable cause, even though the suit is brought in good faith" and noting that "one person’s lack of probable cause is another person’s creative legal theory" (emphasis omitted)).
Although the legislative history contains a handful of references to parties that vexatiously defend a civil action, none pertains to the answering of a complaint. For example, at the hearing before the Judiciary Committee, Robert Hunter, President of the National Insurance Consumer Organization, testified that there should be penalties for both frivolous lawsuits and frivolous defenses, noting that "[l]awyers are known to paper and run the clock." Id., p. 2003. At that point, Representative Christopher Shays asked him to explain what he meant by a frivolous defense, to which Hunter replied: "Frivolous defense is, for example, I was told by an attorney that he took fifty depositions in a case. … He said many of those depositions were almost the identical evidence. He was running his clock. We know that attorneys do that, don’t we? Including defense attorneys? But to deal with only one side of the equation, to unbalance a system that has grown over 200 years, I think is unfair." Id.; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1986 Sess., p. 1893, testimony of Attorney Ralph Elliot, President of the Connecticut Bar Association (opining that there should be penalty for defendants who say, "I’m going to drag you through three or four years of litigation and then on the courthouse steps, I’ll settle with you"); id., p. 1875, testimony of Henry J. Naruk, Vice President and Associate General Counsel of Travelers Insurance Company (stating that "[w]e have brought a number of sanctions against people who have brought frivolous lawsuits, who have extended [lawsuits] and failed to comply with discovery orders").
The legislative history thus suggests that the General Assembly, in enacting P.A. 86-338, was animated by some of the same considerations that underlie § 674 of the Restatement (Second) of Torts, which imposes liability on parties that wrongfully prolong a civil proceeding without probable cause.9a See 3 Restatement (Second), Torts § 674, p. 452 (1977). Yet there is no indication in the Restatement (Second) that § 674 contemplates the scenario presented here, in which a vexatious litigation action was brought against a defendant for pleading general denials in its answer. As the Supreme Court of Kansas has observed, "[n]one of the examples in the comments to § 674 involve liability attaching to one who defends in an action without asserting a counterclaim or cross-claim." (Emphasis added.) Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 206, 4 P.3d 1149 (2000). In the more than 1100 pages of legislative history of P.A. 86-338, there similarly is no mention whatsoever of a defendant’s answer to a complaint or a defendant’s denial of an allegation set forth therein. The legislative history thus is silent on the specific issue presented in this appeal, which is whether the legislature intended § 52-568 to encompass general denials pleaded by a defendant in response to a civil complaint.10a
b
Canons of Construction
I therefore turn my attention to certain well established canons of construction to divine the proper meaning of § 52-568. See Spadaro v. United States Customs & Border Protection, 978 F.3d 34, 47 (2d Cir. 2020) ("we rely upon canons of construction only if the language of the statute is ambiguous"); Stratford v. Jacobelli, 317 Conn. 863, 875, 120 A.3d 500 (2015) (canons of construction are utilized to discern legislative intent when statutory language "is not clear and unambiguous").
Section 52-568 patently is a punitive statute that exposes parties, and potentially legal counsel, to double and treble damages. See, e.g., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S. Ct. 2061, 68 L. Ed. 2d 500 (1981) ("[t]he very idea of treble damages reveals an intent to punish past, and to deter future, unlawful conduct"); Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. at 41 n.44, 664 A.2d 719 ("[t]reble damages are punitive damages"); Osborne v. Warren, 44 Conn. 357, 359 (1877) (statutory award of double damages reflects legislative intent "to punish"); see also Allstate New Jersey Ins. Co. v. Lajara, 222 N.J. 129, 144-45, 117 A.3d 1221 (2015) ("[t]reble damages are intended to punish, and only partly to compensate, and therefore have the classic features of punitive damages"). The legislative history of § 52-568 likewise indicates that it is intended to penalize the persons specified therein. See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1986 Sess., p. 217, statement of Dr. Leonard Kemler (urging legislature to amend § 52-568 to "create sanctions for filing frivolous suits"); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1986 Sess., p. 1908, statement of Attorney Theodore Racklin (noting that § 52-568, as amended by P.A. 86-338, "provides penalties for bringing an action without probable cause"); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1986 Sess., p. 2220 (statement from Connecticut Association of Realtors, Inc., expressing support for "the stronger penalties provided for filing frivolous or vexatious suits" in § 52- 568); id., p. 2340 (letter from Judy A. C. Edwards, Executive Vice President of the Connecticut Society of Architects, urging legislature to increase "sanctions against any person who commences and prosecutes any civil action or complaint against another without ‘probable cause’ ").
Because § 52-568 is punitive in nature, "we are required to construe it with reasonable strictness in determining whether the act complained of comes within the description in the statute of the acts for which the person in fault is made liable." (Internal quotation marks omitted.) Branford v. Santa Barbara, supra, 294 Conn. at 814, 988 A.2d 221; see also State v. Ledbetter, 240 Conn. 317, 330, 692 A.2d 713 (1997) ("[b]ecause it is a punitive statute, the generally recognized rules of statutory construction normally … require the strictest of interpretations"); Commissioner of Administrative Services v. Gerace, 40 Conn. App. 829, 834, 673 A.2d 1172 (1996) ("the punitive nature of the action against the defendant requires a strict interpretation of the statute" (footnote omitted)), appeal dismissed, 239 Conn. 791, 686 A.2d 993 (1997); see also 3 S. Singer, Sutherland, Statutes and Statutory Construction (8th Ed. 2020) § 59.3, p. 181 (same). The precedent of our Supreme Court further instructs that, when a punitive statute is ambiguous, "we must interpret it in favor of the party who would be subject to the punitive consequences of the statute rather than in favor of the party who would benefit from those consequences." Branford v. Santa Barbara, supra, at 814-15, 988 A.2d 221. Those maxims militate against a conclusion that the legislature intended § 52-568 to encompass a defendant’s general denials to the allegations of a complaint.
Furthermore, it is well established that "[i]nterpreting a statute … to change radically existing law is appropriate only if the language of the legislature plainly and unambiguously reflects such an intent." (Internal quotation marks omitted.) Adesokan v. Bloomfield, 347 Conn. 416, 444, 297 A.3d 983 (2023). The plaintiff has provided this court with no Connecticut authority, nor has my research uncovered any, in which a party to a civil action in this state has been found to violate § 52-568 due to the filing of general denials in an answer. I respectfully submit that to expand that statutory cause of action to encompass such general denials constitutes a radical change in our law.
I also am guided by the precept that this court is obligated to "construe a statute as written. … Courts may not by construction supply omissions …. The intent of the legislature … is to be found not in what the legislature meant to say, but in the meaning of what it did say. … It is axiomatic that the court itself cannot rewrite a statute. … That is a function of the legislature." (Internal quotation marks omitted.) Doe v. Norwich Roman Catholic Diocesan Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006); see also Lucarelli v. State, 16 Conn. App. 65, 70, 546 A.2d 940 (1988) ("[c]ourts must interpret statutes as they are written … and cannot, by judicial construction, read into them provisions which are not clearly stated" (citation omitted)). To the extent that the plaintiff asks this court to expand the statutory cause of action for vexatious litigation to encompass a defendant’s general denials to a complaint—which, at its essence, involves a judgment call on a matter of public policy—that request properly is the prerogative of our General Assembly. See Commissioner of Environmental Protec- tion v. State Five Industrial Park, Inc., 304 Conn. 128, 160 n.5, 37 A.3d 724 (2012) (it is "the prerogative of the legislature, rather than the courts, to amend the statutory scheme"); State v. Reynolds, 264 Conn. 1, 79, 836 A.2d 224 (2003) (Connecticut courts cannot exceed "[their] constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments"), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004); State v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987) ("[i]n areas where the legislature has spoken … the primary responsibility for formulating public policy must remain with the legislature").
c
In light of the foregoing, I would conclude that the plaintiff has not satisfied her burden of demonstrating, as a matter of law, that § 52-568 encompasses a defendant’s general denials to a plaintiff’s complaint in a prior action. For that reason, I believe that summary judgment was properly rendered in favor of the defendant with respect thereto.
2
Common-Law Vexatious Litigation
The question of whether a common-law vexatious litigation action may be predicated on a defendant’s general denials to a complaint in a prior action is one of first impression in this state.11a Appellate review of that question of law is plenary. See State v. Campbell, 328 Conn. 444, 477 n.11, 180 A.3d 882 (2018).
a
In urging this court to expand the common-law action for vexatious litigation, the plaintiff relies in part on § 674 of the Restatement (Second) of Torts, which imposes tort liability on a party who "takes an active part in the initiation, continuation or procurement of civil proceedings" without probable cause. See 3 Restatement (Second), supra, § 674, p. 452; see also footnote 9 of this opinion. There is no doubt that a party can improperly continue a civil proceeding, such as by taking numerous redundant depositions or filing frivolous motions, thereby needlessly prolonging litigation for years.12a In my view, such conduct is what is contemplated by § 674 when it refers to the improper "continuation" of a civil proceeding. At the same time, neither § 674 nor any of the commentary to that section pertains to a defendant’s conduct in filing an answer to a civil complaint. For that reason, I respectfully disagree with the majority that § 674 applies to a defendant’s general denials to a complaint in a prior action. Instead, I would join the overwhelming majority of jurisdictions that have rejected similar claims.
Numerous courts have been confronted with claims alleging "malicious defense" on the part of a defendant. As the United States District Court for the District of Delaware observed: "A claim for malicious defense is the mirror image of a claim for malicious prosecution. As its name implies, the claim arises when a defendant adopts unfair or unreasonable litigation tactics in an effort to. prejudice or harass an opponent." Rowlands v. Phico Ins. Co., United States District Court, Docket Nos. Civ. A.00-477-(GMS) and Civ.A.00-485-(GMS), 2000 WL 1092134 (D. Del. July 27, 2000). For example, in Wilkinson v. Shoney’s, Inc., supra, 269 Kan. 194, 4 P.3d 1149, the plaintiff sought to prevail on a malicious defense claim, relying specifically "on the ‘continuation or procurement of civil proceedings against another’ wording of Restatement (Second) of Torts § 674 …. " Id., at 204, 4 P.3d 1149. In rejecting that claim, the court noted that "[n]one of the examples in the comments to § 674 involve liability attaching to one who defends in an action without asserting a counterclaim or cross-claim. Some authorities have recognized an action for malicious prosecution based on the filing of a cross-complaint or counterclaim by [the] defendant on the theory that such cross-pleadings institute a separate and independent cause of action and potentially subject the cross-defendant to the same potential liability and injury as any other claim brought in the first instance. … Most courts, however, have found that a purely defensive action provides an insufficient basis for liability." (Citation omitted.) Id., at 206-207, 4 P.3d 1149. The court further emphasized that other remedies were available to the plaintiff, including requests for admission, court-ordered sanctions, and monetary penalties for defendants "who submit a false statement or representation knowing it to be false." Id., at 205, 4 P.3d 1149. Given the existence of those remedies, the court concluded that "there is no public policy justification to create a cause of action for malicious defense … . " Id. Moreover, the court emphasized that, "[i]f such [an action] is deemed desirable or needed, action by the legislature is required." Id., at 208, 4 P.3d 1149.
California courts repeatedly have resisted attempts to impose liability on defendants who maliciously defend a civil action. See Bertero v. National General Corp., 13 Cal. 3d 43, 52, 529 P.2d 608, 118 Cal. Rptr. 184 (1974) (en banc) (declining to recognize tort of malicious defense and reaffirming "the right of a defendant, involuntarily haled into court, to conduct a vigorous defense"); California Physicians’ Service v. Superior Court, 9 Cal. App. 4th 1321, 1325, 12 Cal. Rptr. 2d 95 (1992) ("[b]roadly but nevertheless accurately speaking, there is no tort of ‘malicious defense’ "); DuBarry International, Inc. v. Southwest Forest Industries, Inc., 231 Cal. App. 3d 552, 575, 282 Cal. Rptr. 181 (1991) (opining, in section of opinion titled "A Denial of an Agreement in a Pleading Can Not Serve as a Basis for Tort Liability," that "to permit a plaintiff to impose tort liability upon a defendant for positions asserted in pleadings not only imposes an unfair burden on the conduct of a defense but conflicts with the well accepted rule which permits the assertion of two or more inconsistent pleas").
As the Supreme Court of California noted more than one century ago regarding liability of a defendant who "makes a groundless defense" in a prior action, proponents of a malicious defense action fail "to distinguish between the position of the parties, plaintiff and defendant, in an action at law. The plaintiff sets the law in motion; if he does so groundlessly and maliciously, he is the cause of the defendant’s damage. But the defendant stands only on his legal rights—the plaintiff having taken his case to court, the defendant has the privilege of calling upon him to prove it to the satisfaction of the judge or jury, and he is guilty of no wrong in exercising this privilege." (Internal quotation marks omitted.) Eastin v. Bank of Stock- ton, 66 Cal. 123, 127, 4 P. 1106 (1884).
The high courts of other states agree with that proposition. As the Supreme Court of Illinois explained: "The defendant had the right to resist [the plaintiffs’] claim and if [the] plaintiffs wished to establish their right it was necessary for them to resort to litigation. If, in the process of the procedure necessary to the establishment of [the] plaintiffs’ claim, they were compelled to employ the services of lawyers and incur other expenses it was but an incident attached to the asserting and enforcement of their right …. If the wrongful conduct of a defendant causing the plaintiff to sue him would give rise to an independent tort and a separate cause of action, there would be no end to the litigation, for immediately upon the entry of judgment the plaintiff would start another action against the defendant for his attorney fees and expenses incurred in obtaining the preceding judgment. … If the plaintiff is successful in the suit, the probability is that the conduct of the defendant causing the suit was wrongful. … Under our 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 willful, intentional, malicious or fraudulent." (Citations omitted.) Ritter v. Ritter, 381 Ill. 549, 554-55, 46 N.E.2d 41 (1943); accord Pope v. Pollock, 46 Ohio St. 367, 370, 21 N.E. 356 (1889) ("[w]hen the plaintiff sets the law in motion, he is the cause, if it be done groundlessly and maliciously, of [the] defendant’s damage, and the defendant but stands upon his legal rights when he calls upon the plaintiff to prove his case to the satisfaction of judge and jury"); cf. Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 729 (7th Cir. 1979) ("Nothing in the case law suggests that liability may stem from the [d]efense of a lawsuit or from the decision to defend rather than settle. Such a rule would infringe basic rights in our system of jurisprudence."), cert. denied, 445 U.S. 917, 100 S. Ct. 1278, 63 L. Ed. 2d 601 (1980).
Those cases are rooted in the recognition that an action premised on a defendant’s conduct in a prior action is fundamentally distinct from one premised on the conduct of a plaintiff who initiates a judicial proceeding in the first instance. Actions for vexatious litigation and malicious prosecution are predicated on "the right of an individual to be free from unjustifiable litigation [and the] wrongful initiation of civil suits." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. at 553–54, 944 A.2d 329; see also W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed. 1984) § 119, p. 870 (tort of malicious prosecution protects "[t]he interest in freedom from unjustifiable litigation"). As one judge keenly observed: "The malicious plaintiff in a civil action institutes proceedings without probable cause and with malice. … Because the defendant is haled into court, all of the defendant’s resulting financial, emotional, and reputational injuries are attributable to the plaintiff’s malicious conduct. The malicious defendant, in contrast, raises or continues an ungrounded and malicious defense merely to resist the claim of a plaintiff already before the court. Unlike the defendant targeted by a malicious prosecution, the plaintiff who encounters a malicious defense voluntarily entered the judicial system and must be held to accept, to some degree, the costs and risks of litigation. When this plaintiff ultimately prevails in the action, at best only a portion of the plaintiff’s litigation costs and damages can be attributed to the malicious defense. These differences in the position of a plaintiff and a defendant with regard to the institution of civil proceedings, the willingness of the involvement in the litigation, and the amount of damages attributable to the malicious conduct of the opposing party, are appropriately recognized by the existing discrepancy in remedies." (Citation omitted; emphasis added.) Aranson v. Schroeder, 140 N.H. 359, 372-73, 671 A.2d 1023 (1995) (Thayer, J., dissenting). That precept has been applied to defendants who plead general denials known to be untrue.13a
The Supreme Court of Hawaii similarly has rejected malicious defense claims raised in the insurance defense context. In Young v. Allstate Ins. Co., 119 Haw. 403, 410, 198 P.3d 666 (2008), the plaintiff brought an action against the defendants, an insurance company and its attorney, for malicious defense. The gravamen of her claim was that the defendants "took an active part in the initiation, continuation, or procurement of the defense in [her] case against [the insurer’s] insured. She alleged that the defendants (1) maliciously defended the case and used the courts imprudently by acting without reasonable or probable cause and by acting with knowledge or notice that their positions lacked merit and (2) acted primarily for a purpose other than that of securing a proper adjudication of the claims and defenses, such as to harass, annoy, or injure or to cause an unnecessary delay or a needless increase in litigation costs."14a Id., at 411, 198 P.3d 666.
At the outset of its analysis, the Supreme Court of Hawaii noted that, "[a]lthough the torts of abuse of process and malicious prosecution are well established, the malicious defense tort is unfamiliar, if known at all." (Internal quotation marks omitted.) Id., at 416, 198 P.3d 666. The court further stated: "This jurisdiction has not previously recognized a malicious defense claim, and we decline to do so now. We do not believe that recognizing the tort of malicious defense is necessary where (1) the threat of subsequent litigation will have a chilling effect on a party’s legitimate defenses, and (2) existing rules and tort law compensate plaintiffs for the harm that they suffer when defendants’ litigation tactics are brought in bad faith." Id. The court emphasized that, "by initiating the lawsuit, the plaintiff must be held to accept, to some degree, the costs and risks of litigation." (Internal quotation marks omitted.) Id., at 420, 198 P.3d 666. The court also noted the existence of remedies already available to a plaintiff, including the imposition of sanctions on a malicious defendant and disciplinary proceedings pursuant to the Rules of Professional Conduct. See id., at 423–24, 198 P.3d 666; see also 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, 855 (2007) ("The refusal to recognize a tort of malicious defense does not deny that appeals or other defensive activities are wrongful when conducted maliciously and in bad faith, solely for the purpose of delay. … However, the proper remedy for this is the application of sanctions by the court in which frivolous, dilatory litigation occurs." (Footnotes omitted; internal quotation marks omitted.)). The court thus concluded that "it is appropriate to join the majority of courts that have addressed this issue and decided not to recognize the tort of malicious defense"; Young v. Allstate Ins. Co., supra, 119 Haw. at 419, 198 P.3d 666; and opined that, if such a change in the law was warranted, it was "more appropriate for the legislature" to do so.15a Id., at 427 n.23, 198 P.3d 666. Courts that have declined to recognize the tort of malicious defense 16a also have emphasized the potential for endless litigation. As the Supreme Court of Ohio observed, "[i]f every suit may be retried on an allegation of malice, the evil would be intolerable, and the malice in each subsequent suit would be likely to be greater than in the first; and that, if a defendant ought to have damages upon a false claim, then the plaintiff ought to have damages on a false plea, which would make litigation interminable." Pope v. Pollock, supra, 46 Ohio St. at 369, 21 N.E. 356; see also California Physicians’ Service v. Superior Court, supra, 9 Cal. App. 4th at 1325 n.2, 12 Cal.Rptr.2d 95 (noting danger of endless litigation); Ritter v. Ritter, supra, 381 Ill. at 555, 46 N.E.2d 41 ("[i]f the wrongful conduct of a defendant … would give rise to an independent tort and a separate cause of action, there would be no end to the litigation, for immediately upon the entry of judgment the plaintiff would start another action against the defendant for his attorney fees and expenses incurred in obtaining the preceding judgment"); Rappaport v. Rappaport, 44 Misc. 2d 523, 525, 254 N.Y.S.2d 174 (1964) ("[t]he danger of encouraging interminable litigation by [extending the tort of malicious prosecution to defenses asserted by a defendant in prior action] is also clear"), aff’d, 24 App. Div. 2d 844, 263 N.Y.S.2d 442, appeal denied, 16 N.Y.2d 487, 213 N.E.2d 697, 266 N.Y.S.2d 1025 (1965).
In addition, multiple courts have declined to impose liability on a defendant arising from its defense in a prior civil proceeding in the insurance context specifically. See, e.g., Rowlands v. Phico Ins. Co., supra, United States District Court, Docket Nos. Civ.A.00-477-(GMS) and Civ. A.00-485-(GMS) ("the courts which have squarely addressed this issue in the insurance context have all rejected the malicious defense claim or its equivalent"); Hostetter v. Hartford, Ins. Co., Docket No. 85C-0628, 1992 WL 179423, *8 (Del. Super. July 13, 1992) (declining "to recognize the existence of [the] tort [of malicious defense] in the context of insurance claims"), overruled in part on other grounds by Connelly v. State Farm Mutual Automobile Ins. Co., 135 A.3d 1271 (Del. 2016); Young v. Allstate Ins. Co., supra, 119 Haw. at 426, 198 P.3d 666 ("we decline to adopt the tort of malicious defense"); Kranzush v. Badger State Mutual Casualty Co., 103 Wis. 2d 56, 73, 307 N.W.2d 256 (1981) (declining to "declare the existence of a [malicious defense] cause of action in favor of the claimant against the insurer"); W. Barker et al., supra, 42 Tort Trial & Ins. Prac. L.J. 854 ("[t]he cases almost uniformly reject [the] plaintiffs’ attempts to impose liability based on allegedly frivolous defenses, supposedly asserted only to delay an inevitable recovery").
As best I can tell, only one jurisdiction has adopted the position urged by the plaintiff in the present case.17a In Aranson v. Schroeder, supra, 140 N.H. at 363, 671 A.2d 1023, the plaintiffs asked the Supreme Court of New Hampshire to recognize a new cause of action for malicious defense, contending that it "is essentially the mirror image of § 674 of the Restatement [Second] of Torts …. " (Internal quotation marks omitted.) A divided panel of that court18a acknowledged that "no jurisdiction has to date adopted malicious defense as a cause of action"; id., at 365, 671 A.2d 1023; but, citing to a law review article, reasoned that, "[i]n appropriate circumstances, there may be ample reason to extend the reach of the sanctions to counsel who engages in the fostering of an unfounded defense or pursues a defense for an improper purpose. … The difference between the adoption of the tort of malicious defense and the existing power of courts to levy sanctions is the nature and extent of the damages recoverable by the aggrieved party. Is a plaintiff less aggrieved when the groundless claim put forth in the courts is done defensively rather than affirmatively in asserting a worthless lawsuit for improper purposes? We think not." (Citation omitted.) Id., at 364–65, 671 A.2d 1023. The court thus recognized malicious defense as a cause of action under New Hampshire law. Id., at 366, 671 A.2d 1023.
At the same time, the court emphasized that, "[m]alicious defense, like its counterpart malicious prosecution, is a limited cause of action that will lie only in discrete circumstances, and malicious defense claims will accordingly be scrutinized closely and construed narrowly." Id., at 366–67, 671 A.2d 1023. It then made the following observation, which is highly relevant to the issue now before us: "We would not, for example, look favorably upon a plaintiff’s threatening a malicious defense action when faced with a defendant’s general denial of liability, for a party should not be precluded from legitimately raising a defense for fear of such an action." (Emphasis added.) Id., at 367, 671 A.2d 1023. Accordingly, the one jurisdiction that has recognized a cause of action for malicious defense predicated on § 674 of the Restatement (Second) of Torts has expressly disavowed the imposition of liability for a defendant’s general denials to a plaintiff’s complaint in a prior action.
b
To resolve the dispute presently before us, it is unnecessary to decide whether to recognize the tort of malicious defense or to adopt § 674 of the Restatement (Second) of Torts. It is enough to conclude that a defendant’s general denials to a complaint in a prior action cannot form the basis of a vexatious litigation action under either our common law or that section of the Restatement.19a For three primary reasons, I would so conclude.
i
First, plaintiffs in Connecticut already have adequate remedies to deal with defendants who answer a complaint with denials that are false or made in bad faith. Pursuant to our rules of practice, plaintiffs who encounter such denials can file requests asking defendants to revise their answers. See Practice Book § 10-35 (authorizing any party to file request to revise to obtain "the deletion of any unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading"); Melfi v. Danbury, 70 Conn. App. 679, 684–86, 800 A.2d 582 (request to revise properly used to delete improper statements from adverse pleading), cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).
Plaintiffs confronted with what they believe to be improper denials also may file requests for admissions soon after an answer is filed. As this court has observed, "Requests for admissions are governed by Practice Book §§ 13-22 through 13-25…. A party’s response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment. … Similarly, a failure to respond timely to a request for admissions means that the matters sought to be answered were conclusively admitted." (Citations omitted; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80 Conn. App. 734, 744, 837 A.2d 866 (2004). If the plaintiff in the present case believed that the defendant’s answers to her complaint in the prior action were false or that the defendant had refused to admit certain allegations "with a malicious intent to unjustly vex and trouble her and to force her to incur increased litigation costs"—as she now alleges in this vexatious litigation action—she could have sought judicial admissions with respect to any such allegations early in the pleading stage of that prior action, potentially obviating much of the litigation that followed. See, e.g., Allied Grocers Cooperative, Inc. v. Caplan, 30 Conn. App. 274, 279-80, 620 A.2d 165 (1993) ("[b]ecause [the defendant] did not respond to the request for admissions [regarding the defendant’s liability], those facts were conclusively established for purposes of this action"); Wilkinson v. Shoney’s, Inc., supra, 269 Kan. at 205, 4 P.3d 1149 (emphasizing, in declining to recognize malicious defense cause of action predicated on § 674 of Restatement (Second) of Torts, that "parties against whom claims are made are … obligated to make admissions if requested"). Indeed, the plaintiff did precisely that when she filed a request for admissions in 2018; in response, the defendant admitted, inter alia, that the motor vehicle collision at issue was directly and proximately caused by the negligence of the operator of the motor vehicle that collided with the plaintiff’s vehicle and that the plaintiff suffered bodily injury as result thereof.
Furthermore, under our rules of practice, a party may move for summary judgment "as a matter of right at any time if no scheduling order exists and the case has not been assigned for trial." (Emphasis added.) Practice Book § 17-44; see also Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441 (1996) ("a party may move for summary judgment at any time"). If the plaintiff in the prior action believed that the defendant’s answers to certain allegations in her complaint regarding its liability were false or untenable, for example, she could have promptly moved for summary judgment on the issue of liability. See, e.g., Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 282, 472 A.2d 306 (1984) ("[t]he plaintiff successfully moved for summary judgment as to liability against all three defendants on the first count of the complaint"); Teachers Ins. v. Broad & Hanrahan, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-93- 0132304-S, 1995 WL 405003 (June 28, 1995) (granting motion for summary judgment as to liability filed less than two months after plaintiff filed amended complaint). The plaintiff here declined to do so.
Plaintiffs in Connecticut who encounter denials in an answer that are false or made in bad faith also are not without statutory recourse. Our legislature enacted General Statutes § 52-99 to address that issue specifically.20a As our Supreme Court explained, § 52-99 "allows parties to seek monetary sanctions from the trial court for allegations and denials within parties’ pleadings made without reasonable cause and found to be untrue."21a Dorfman v. Smith, supra, 342 Conn. at 611-12, 271 A.3d 53. In addition, it is well established that "the trial court has the inherent authority to sanction parties for litigation misconduct." Id., at 612, 271 A.3d 53; see also CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996) (trial court "has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct" (internal quotation marks omitted)), overruled in part on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999). The trial court likewise possesses inherent authority "to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. … This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation. … It applies both to the party and his counsel." (Internal quotation marks omitted.) Lederle v. Spivey, 332 Conn. 837, 844, 213 A.3d 481 (2019). Nothing prevented the plaintiff in the prior action from seeking costs, attorney’s fees, or the imposition of sanctions in the face of allegedly false or bad faith denials by the defendant.
ii
Second, I am mindful that a defendant’s answer to a plaintiff’s complaint is a preliminary pleading that must be filed within thirty days of the return date.22a See Practice Book § 10-8. Significantly, the purpose of pleadings in this state is not to determine the truth of the allegations contained therein. Rather, "[p]leadings are intended to limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise." (Internal quotation marks omitted.) Birchard v. New Britain, 103 Conn. App. 79, 83, 927 A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 721 (2007); see also Biller v. Harris, 147 Conn. 351, 357, 161 A.2d 187 (1960) ("[t]he purpose of pleadings is to apprise the court and opposing counsel of the issues to be tried"); Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 782, 720 A.2d 242 (1998) ("essential purpose" of pleadings is to limit issues to be tried); 71 C.J.S. 34, Pleading § 2 (2022) ("[t]he purpose of pleadings is to frame, present, define, and narrow the issues and to form the foundation of, and to limit, the proof to be submitted on the trial").
"In a civil action the general burden of proof rests on the plaintiff …. " Hally v. Hospital of St. Raphael, 162 Conn. 352, 358, 294 A.2d 305 (1972); see also Ivimey v. Watertown, 30 Conn. App. 742, 753, 622 A.2d 603 ("[i]t is elementary that in a civil action, the plaintiff bears the burden of proof on all essential elements of a claim"), cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993). When a defendant answers a complaint, it alerts the plaintiff and the court to the issues in dispute, thereby leaving the plaintiff to its burden of proof. See Hally v. Hospital of St. Raphael, supra, at 358, 294 A.2d 305 ("when an answer denies several paragraphs of the complaint the burden of proving each separate, material issue of fact that was raised is thrown on the plaintiff’); Eastern Consolidators, Inc. v. W. L. McAviney Properties, Inc., 159 Conn. 510, 510-11, 271 A.2d 59 (1970) (defendant’s general denial in answer "put these allegations in issue, with the burden on the plaintiff to prove them"); see also Argentinis v. Gould, 23 Conn. App. 9, 16, 579 A.2d 1078 (1990) ("[a] general denial does not place any burden on the denier"), rev’d in part on other grounds, 219 Conn. 151, 592 A.2d 378 (1991). In Connecticut, general denials are commonplace. See, e.g., Parente v. Pirozzoli, 87 Conn. App. 235, 239, 866 A.2d 629 (2005) ("[t]he defendant’s answer set forth only general denials of the plaintiff’s allegations"); Musorofiti v. Vlcek, 65 Conn. App. 365, 368, 783 A.2d 36 ("[t]he defendants’ answer contains a general denial"), cert. denied, 258 Conn. 938, 786 A.2d 426 (2001); Monterose v. Cross, 60 Conn. App. 655, 661, 760 A.2d 1013 (2000) ("[i]n this case, there was a general denial and a special defense of contributory negligence"); Nesbitt v. Mulligan, 11 Conn. App. 348, 352, 527 A.2d 1195 ("[t]he defendants’ answer consisted merely of a general denial of the plaintiff’s allegations of negligence"), cert. denied, 205 Conn. 805, 531 A.2d 936 (1987). Given the pur- pose and common practice of pleadings in this state, I believe that expanding our common-law vexatious litigation action to encompass a defendant’s general denials to a complaint is ill-advised and will wreak havoc on our civil courts.
iii
Third, additional dangers abound. The expansion of the common-law action for vexatious litigation undoubtedly will result in more, and potentially interminable, litigation. See California Physicians’ Service v. Superior Court, supra, 9 Cal. App. 4th at 1325 n.2, 12 Cal.Rptr.2d 95; Ritter v. Ritter, supra, 381 Ill. at 555, 46 N.E.2d 41; Rappaport v. Rappaport, supra, 44 Misc. 2d at 525, 254 N.Y.S.2d 174. The risk of wasting "precious judicial resources"; Green v. Commissioner of Correction, 184 Conn. App. 76, 82, 194 A.3d 857, cert. denied, 330 Conn. 933, 195 A.3d 383 (2018); will only increase.
In addition, I am particularly concerned about engendering conflict between attorneys and their clients. The preamble to our Rules of Professional Conduct states that, "[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system." Rules of Professional Conduct, preamble, p. 1. At the same time, "[a] lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous"; Rules of Professional Conduct 3.1; and shall not "assist a client … in conduct that the lawyer knows is … fraudulent Rules of Professional Conduct 1.2 (d). Lawyers in this state likewise are prohibited from knowingly making "a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made"; Rules of Professional Conduct 3.3 (a) (1); and are obligated to "make reasonable efforts to expedite litigation consistent with the interests of the client." Rules of Professional Conduct 3.2. Those precepts are not empty bromides but, rather, expose attorneys to professional discipline. See Rules of Professional Conduct, preamble, p. 3 ("[f]ailure to comply with an obligation or prohibition imposed by a [r]ule is a basis for invoking the [attorney] disciplinary process").
If pleading a denial in response to a civil complaint constitutes a proper basis for a vexatious litigation action, I fear increased conflict between clients and their attorneys in light of those professional obligations. As the Supreme Court of Hawaii recognized, "[t]he creation of the tort of malicious defense and recognizing potential liability for defendants … may have a chilling effect on some legitimate defense and perhaps drive a wedge between defendants seeking zealous advocacy and defense attorneys who fear personal liability in a second action. … The risk of compromising a defendant’s right to vigorous and zealous advocacy by virtue of the threat of a subsequent lawsuit [is] too great to justify the recognition of the tort of malicious defense." (Citation omitted; internal quotation marks omitted.) Young v. Allstate Ins. Co., supra, 119 Haw. at 419-20, 198 P.3d 666; see also Aranson v. Schroeder, supra, 140 N.H. at 373, 671 A.2d 1023 (Thayer, J., dissenting) ("[The] potential for conflict between the interests of defendants and their attorneys can only be expected to undermine the goals of [the Rules of Professional Conduct]. Attorneys may give priority to their own interests when formulating defense strategies, and they may be tempted to disclose the client’s role in pursuing specific defense tactics in order to shield themselves from personal attack."). Furthermore, the prospect of a subsequent vexatious litigation action could be wielded strategically against defendants by shrewd attorneys whose clients, as plaintiffs, shoulder the burden of proof in all civil actions in this state.23a See Hally v. Hospital of St. Raphael, supra, 162 Conn. at 358, 294 A.2d 305.
I recognize that there is no Connecticut authority precluding this court from expanding our common-law vexatious litigation action to encompass a defendant’s denials to a complaint. Given the grave implications for practitioners and parties alike, I nevertheless am troubled by the prospect of this court doing so, particularly when this novel issue has not been thoroughly vetted by members of our profession in the form of amicus briefs or proceedings before the Rules Committee of the Superior Court or the General Assembly.
c
The majority today articulates a holding regarding pleading practice that will reverberate through every civil courthouse in this state.24a Our Supreme Court has long "eschewed the notion that pleadings should be read in a hypertechnical manner." (Internal quotation marks omitted.) Carpenter v. Daar, 346 Conn. 80, 128, 287 A.3d 1027 (2023). There is an ocean of difference between an inartfully or even negligently pleaded answer on the one hand and the kind of malicious conduct that vexatious suits are intended to punish on the other. In light of today’s decision, the mere denial of an allegation in a civil pleading—whether in response to a claim, counterclaim, cross claim, or special defense—may subject attorneys and their clients to the daunting prospect of defending a vexatious litigation action, and exposure to double and treble damages. For all of the foregoing reasons, I believe that such expansion of our common-law cause of action for vexatious litigation is unwarranted.
B
Even if I were to conclude otherwise, the plaintiff still cannot prevail. Apart from my concern about the proper scope of a vexatious litigation action, I believe that the defendant had a good faith basis to plead general denials to the allegations of the complaint in the prior action.
"[I]n the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted." DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991). "[P]robable cause may be present even where a suit lacks merit. … The lower threshold of probable cause allows attorneys and litigants to present issues that are arguably correct, even if it is extremely unlikely that they will win … " (Citation omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 103–104, 912 A.2d 1019. "In either [a common-law or statutory vexatious litigation] action … [t]he existence of probable cause is an absolute protection … . " (Citation omitted; internal quotation marks omitted.) Id., at 94, 912 A.2d 1019.
As recited in her August 21, 2019 complaint in the present case, the plaintiff predicates her vexatious litigation claims on certain allegations from her complaint in the prior action.25a Causation was an integral part of those allegations, which allege both that the plaintiff’s injuries were directly and proximately caused by the negligence of the underinsured motor vehicle operator involved in the automobile accident, and that the defendant was liable to the plaintiff for the damages that were caused by the tortfeasor’s negligence and were not covered by the tortfeasor’s insurance coverage.26a In its answer to the plaintiff’s November 25, 2015 amended complaint, the defendant stated, with respect to the allegations now at issue,27a that it was "without sufficient information to either admit or deny the allegations, and, therefore, denies the allegations and leaves the plaintiff to her proof." (Emphasis added.)
The defendant filed an amended answer on December 15, 2016, in which it admitted the truth of certain allegations that it had denied in its previous answer..28a As to the other allegations material to this appeal, the defendant again stated that it was "without sufficient information to either admit or deny the allegations, and, therefore, denies the allegations and leaves the plaintiff to her proof." See footnote 1 of this opinion.
On April 12, 2017, the plaintiff filed her second amended complaint. Count two of that complaint alleged breach of contract on the part of the defendant. In paragraphs 6 through 11, the plaintiff alleged that she sustained injuries and damages that were caused by the negligence of Joscelyn M. Smith.29a In both its June 14, 2017 answer and September 5, 2017 revised answer to the plaintiff’s April 12, 2017 second amended complaint, the defendant generally denied those allegations.30a
On appeal, the plaintiff submits that it was improper for the defendant to do so in light of the fact that (1) the tortfeasor caused the motor vehicle accident in question and (2) the tortfeasor was underinsured. As she states in her appellate reply brief, "insurance companies are not entitled to litigate against their own insureds when there is no basis in fact for their litigation position. … [R]equiring the insureds to engage in lengthy litigation just to obtain the benefit of the insurance policies for which they have paid a premium … is textbook vexatious litigation and precisely what [the defendant] did here." (Emphasis added.)
I respectfully disagree. In my view, a defendant in a motor vehicle negligence action always may dispute whether the negligent conduct in question caused the injuries and damages complained of by a plaintiff, even when liability is not contested.31a See, e.g., General Accident Ins. Co. v. Mortara, 314 Conn. 339, 353, 101 A.3d 942 (2014) (discussing uninsured motorist benefits case in which "the disputed issue did not pertain to insurance coverage, but to damages that would have been recoverable from the tortfeasor"); Bodner v. United Services Automobile Assn., 222 Conn. 480, 488, 610 A.2d 1212 (1992) (defendant uninsured motorist insurance carrier disputed only "the amount of damages" plaintiff sustained); Trujillo v. Chekas, 139 Conn. App. 675, 678, 59 A.3d 245 (2012) (plaintiff in action to recover uninsured motorist benefits "failed to carry his burden of establishing the threshold question of causation, which was contested at trial"); Caprood v. Atlanta Casualty Co., 80 Conn. App. 338, 339, 835 A.2d 74 (2003) ("[t]he defendant [uninsured motorist insurance carrier] denied that the plaintiff had been injured as a result of the negligent conduct of the hit-and-run driver" (emphasis altered)); Garcia v. ITT Hartford Ins. Co., 72 Conn. App. 588, 590, 805 A.2d 779 (2002) (answer filed by defendant uninsured motorist insurance carrier "denied most of the allegations in the complaint"); Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 467-68, 760 A.2d 117 (2000) ("[t]he defendant [uninsured motorist insurance carrier] admitted that the tortfeasors were negligent, but contested the causal relationship between the accidents and the injuries claimed, as well as their extent"), aff’d, 257 Conn. 359, 777 A.2d 681 (2001). Simply put, liability for a motor vehicle accident is different from liability for injuries allegedly sustained therein.
Moreover, the record before us reflects that, subsequent to the filing of the defendant’s answers, the plaintiff filed a request for admissions. See part II A (2) (b) (i) of this opinion. In response, the defendant admitted, inter alia, that the motor vehicle collision at issue was caused by the negligence of the operator of the motor vehicle that collided with the plaintiff’s vehicle and that the plaintiff suffered bodily injury as result thereof. As a result of those admissions, the issues that remained for trial were narrowed, and the primary dispute concerned the extent of the damages sustained by the plaintiff that were caused by the negligent conduct of the tortfeasor.
In that regard, the record indicates that the underinsured motorist insurance policy at issue in this case provided $250,000 in coverage. The record also indicates that, sometime prior to January 5, 2016, the plaintiff released her claim against the tortfeasor, Smith, in exchange for his $50,000 policy limit. After taking into account the $50,000 that she received from the tortfeasor, the plaintiff sought to recover the sum of $200,000 from the defendant in the prior action, filed an offer of compromise to that effect,32a and rejected offers of compromise by the defendant for less than that amount.33a When the defendant declined to settle for $200,000, a trial followed. The jury thereafter returned a verdiet in favor of the plaintiff, and the court rendered judgment in her favor in the amount of $119,928. The fact that the plaintiff recovered $80,072 less than the $200,000 she had sought to recover from the defendant is, in my view, prima facie evidence that the defendant had probable cause to deny the material allegations of the plaintiff’s complaint.
That undisputed fact also raises the question of whether, for purposes of a vexatious litigation analysis, the prior proceeding truly "terminated in the plaintiff’s favor." Rioux v. Barry, supra, 283 Conn. at 347, 927 A.2d 304; see also MacDermid, Inc. v. Leonetti, 158 Conn. App. 176, 184, 118 A.3d 158 (2015) ("[the] favorable termination requirement is an essential element of a vexatious litigation claim"). Because the defendant was successful in litigating the prior action—insofar as the plaintiff recovered $80,072 less than the amount that she sought to recover from the defendant—the prior action arguably terminated in the defendant’s favor for purposes of determining whether its conduct in answering the complaint was vexatious.
As our Supreme Court has noted, "[f]avorable termination of [a plaintiff’s] suit often establishes lack of merit … . " (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn. at 103, 912 A.2d 1019. I suggest the corollary is also true when a defendant elects to contest the issue of whether the negligent conduct in question caused the injuries and damages complained of by a plaintiff. If a defendant decides to have the jury resolve that issue because it does not agree that the plaintiff is entitled to the full amount of damages sought, and the jury then vindicates that decision by awarding the plaintiff something much less than that amount, I submit that such a ruling is both favorable to the defendant and a per se indication that it possessed probable cause to litigate the issue.
In light of the foregoing, I would conclude that the trial court properly determined that the defendant had probable cause to answer the plaintiff’s complaint as it did. Because the existence of probable cause in the vexatious litigation context is a question of law; see id., at 94, 912 A.2d 1019; I would further conclude that the court properly rendered summary judgment in favor of the defendant with respect to the pleading of general denials in its answer. I, therefore, respectfully dissent in part.