Opinion
HHDCV156062649S
06-11-2019
Tamara DORFMAN v. Joscelyn M. SMITH et al.
UNPUBLISHED OPINION
OPINION
CESAR A. NOBLE, J.
The issue presented by the motion to dismiss before the court is whether the extra-contractual claims of the plaintiff are within the scope of the absolute immunity afforded litigants for communications made in the course of judicial proceedings. For the following reasons the court dismisses counts three, four and portions of five.
This action seeking damages for injuries sustained as a result of a motor vehicle accident was brought on September 29, 2015 by the plaintiff, Tamara Dorfman (plaintiff), who alleged in her complaint that on September 27, 2014, she suffered injuries as a result of the negligence of a Joscelyn Smith (tortfeasor). The plaintiff asserted in her complaint that the tortfeasor’s vehicle traveled through a stop sign striking the plaintiff’s car. Thereafter, the plaintiff successfully moved to add the defendant, Liberty Mutual Fire Insurance Company ("Liberty Mutual") as a party defendant for purposes of asserting claims for breach of contract/underinsured motorist coverage (UIM) (second count), breach of the implied covenant of good faith (count three), negligent infliction of emotional distress (count four) and a violation of CUTPA/CUIPA (count five).
The amended complaint contained the following allegations. Liberty Mutual investigated the accident and concluded that its insured, the tortfeasor was 100% at fault. Thereafter a Liberty Mutual employee demanded an affidavit of no insurance although such is prohibited by General Statutes § 38a-336c(c). After the suit was filed, Liberty Mutual withheld from its counsel its file notes, the conclusions of its employees regarding liability, the names of independent witnesses and the existence of statements from independent witness, ¶34. The plaintiff alleged that counsel retained by Liberty Mutual filed an inaccurate answer to the complaint. The inaccuracies were alleged to have been in the pleading of insufficient knowledge or information to admit or deny certain portions of the factual allegations, ¶36 and the pleading of a special defense of comparative negligence on the part of the plaintiff, ¶37. The plaintiff claims the pleadings were in violation of General Statutes § 52-99 by virtue of having been made without reasonable cause and ultimately found to be untrue. The complaint further provides that Liberty Mutual’s discovery responses contained false and misleading statements in that they failed to identify a known witness and to provide the witness’ statement.
General Statutes § 38a-336c(c) provides in pertinent part: "[No] insurer may require its insured, as a condition of eligibility for payment of uninsured motorist benefits, to provide affidavits or written statements from the owner or operator of the alleged uninsured vehicle attesting to the fact that the individual did not maintain any liability coverage at the time of the motor vehicle accident."
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 ten dollars for any one offense."
In count three the plaintiff alleges that by this conduct Liberty Mutual "knowingly and intentionally engaged in dishonest and sinister litigation practices by taking legal positions that were without factual support in order to further frustrate Ms. Dorfman’s ability to receive benefits due Ms. Dorfman under her contract"; (emphasis added) ¶45; thereby breaching its duty to act fairly and in good faith. (Emphasis added.) The plaintiff asserts in count four that this conduct constituted a negligent infliction of emotional distress. Count five alleges that Liberty Mutual’s demand for an affidavit of no excess insurance and its false discovery responses were part of a general business practices, applicable to other policy holders as well, that violate the Connecticut Unfair Insurance Practices Act, General Statutes § 38a-816, triggering a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42a-110 et seq.
Thereafter, the plaintiff settled with the tortfeasor for his policy limits of $50,000 and withdrew the action against him on January 22, 2016. The court bifurcated the trial of the UIM claim from the extra-contractual claims in counts three through five. After trial, in which Liberty Mutual admitted liability, the plaintiff received a verdict in the amount of $169,928, a sum within the plaintiff’s UIM policy limits of $250,000. The present motion followed.
The motion to dismiss the remaining counts asserts that the court is without subject matter jurisdiction over the claims asserted in counts three through five because the doctrine of absolute immunity, which protects a party from suit for communications made in the course of judicial proceedings, is applicable. In the view of Liberty Mutual the doctrine applies because the counts implicate only communications made by it in the course of litigation. The plaintiff objection to the motion to dismiss dated February 8, 2019, Entry No. 329, asserts that public policy as found in case law and statutes supports the basis for jurisdiction. Moreover, in the plaintiff’s view the allegations of her complaint implicate conduct rather than communications.
"[A] motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). "[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). However, "[i]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Ins., 315 Conn. 196, 226, 105 A.3d 210 (2015). The present motion is based solely on the allegations of the plaintiff’s complaint. When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).
Absolute immunity implicates the court’s subject matter jurisdiction. Bruno v. Travelers Companies, 172 Conn.App. 717, 723, 161 A.3d 630 (2017). The doctrine bars most claims related to communications published in the course of judicial proceedings if the communications are in some way pertinent to the litigation. Tyler v. Tatoian, 164 Conn.App. 82, 88, 137 A.3d 801 (2016). "The purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements ... Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state." (Citations omitted, internal, quotation marks omitted.) Simms v. Seaman, 308 Conn. 523, 539, 69 A.3d 880 (2013).
The ambit of the privilege extends to "all participants in judicial proceedings, including judges, attorneys, parties, and witnesses." MacDermid, Inc. v. Leonetti, 310 Conn. 616, 627, 79 A.3d 60 (2013). "The scope of privileged communication extends not merely to those made directly to a tribunal, but also to those preparatory communications that may be directed to the goal of the proceeding ... The right of private parties to combine and make presentations to an official meeting and, as a necessary incident thereto, to prepare materials to be presented is a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings. To make such preparations and presentations effective, there must be an open channel of communication between the persons interested and the forum, unchilled by the thought of subsequent judicial action against such participants; provided always, of course, that such preliminary meetings, conduct and activities are directed toward the achievement of the objects of the litigation or other proceedings." (Citation omitted, internal quotation marks omitted.) Hopkins v. O’Connor, 282 1Conn. 821, 832, 925 A.2d 1030 (2007).
The doctrine has been applied by our appellate courts to causes of action sounding in intentional interference with contractual or beneficial relations, Rioux v. Barry, 283 Conn. 338, 343, 927 A. 304 (2007); "interference with contractual relationship; fraud; invasion of privacy; abuse of process; and negligent misrepresentation." (Citations omitted, quotation marks omitted.) Simms v. Seaman, supra, 308 Conn. 566-67, and intentional infliction of emotional distress; and Connecticut Unfair Trade Practices Act claims; Tyler v. Tatoian, supra . "It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged [as] long as they are in some way pertinent to the subject of the controversy. The effect of an absolute privilege is that damages cannot be recovered for the publication of the privileged statement even if the statement is false and malicious." Fiondella v. City of Meriden, 186 Conn.App. 552, 558, 200 A.3d 196 (2018) quoting Villages, LLC v. Longhi, 166 Conn.App. 685, 699-700, 142 A.3d 1162, cert. denied, 323 Conn. 915, 149 A.3d 498 (2016). "Witnesses and parties to judicial proceedings must be permitted to speak freely, without subjecting their statements and intentions to later scrutiny by an indignant jury, if the judicial process is to function. While no civil remedies can guard against lies, the oath and the fear of being charged with perjury are adequate to warrant an absolute privilege for a witness’ statements." (Citation omitted.) DeLaurentis v. City of New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991).
The protection afforded by the doctrine of absolute immunity is not unlimited. Its scope extends only to statements made and documents produced by representatives of the parties made or produced in a formal judicial proceeding. Bruno v. Travelers Companies, supra, 172 Conn.App. 727. A distinction exists "between attempting to impose liability upon a participant in a judicial proceeding for the words used therein and attempting to impose liability upon a litigant for his improper use of the judicial system itself." Fiondella v. City of Meriden, supra, 186 Conn.App. 559. Conduct that does not occur during a judicial proceeding is not protected. Id. 563.
Mindful of the applicable governing principles, the court holds that the allegations of counts three and four fall within the scope of the privilege. The third count’s assertion of a violation of Liberty Mutual’s duty to act fairly and in good faith (¶46) is predicated on "dishonest and sinister litigation practices by taking legal positions that were without factual support." (¶45). The "legal positions" complained of are expressed in the answers filed by Liberty Mutual which asserted comparative negligence on the part of the plaintiff and failed to either admit liability or certain facts which it is alleged to have known. Similarly, the plaintiff allegations assert the preparation of and filing of incorrect discovery responses by Liberty Mutual. Because these are all communications and statements filed in the course of and related to a judicial proceeding, the claim is barred by the doctrine of absolute privilege.
Similarly, count four claiming the negligent infliction of emotional distress simply credits the foregoing litigation related conduct as having caused the plaintiff emotional distress. Because the emotional distress is claimed to have flowed from the false, yet privileged, communications in Liberty’s Mutual answer, special defenses and interrogatory responses, all statements made in the context of a judicial proceeding that relate to its subject matter, this claim is also barred by the doctrine of absolute immunity. See Simms v. Seaman, supra, 308 Conn. 665. ("[A] statement is absolutely privileged if it is made in the course of a judicial proceeding and relates to the subject matter of that proceeding.")
The plaintiff argues that existing case law and statutes establish a policy favoring jurisdiction in the present a case. She directs the court to § 52-99 which imposes penalties for allegations or denials made without reasonable cause and found untrue. The plaintiff asserts the statute represents the legislative intent to encroach on the common law doctrine of absolute immunity. The plaintiff’s reliance is misplaced. To the extent that the plaintiff argues that § 52-99 abrogates completely the common law, the express terms of the statute do not support the proposition. If the statute is indeed an encroachment it represents a very minimal re-drawing of the contour of the doctrine because it provides only for the payment of reasonable expenses to be taxed by the court "provided no expense for counsel fees shall be taxed exceeding ten dollars for any one offense." At best § 52-99 renders the immunity qualified and then merely to the extent of imposing on a violator liability only for reasonable expenses. See Kruger v. Grauer, 173 Conn.App. 539, 551, 164 A.3d 764, 771 (2017) (absolute liability existing at common law for individuals making reports of child sexual abuse to the Department of Children and Families replaced by statute providing only qualified immunity). Moreover, none of the plaintiff’s claims arise under § 52-99 nor has she requested that the court impose the penalties therein provided.
The plaintiff next argues that because conduct constituting vexatious litigation is not subject to the protection of the doctrine of absolute immunity the claims she presents, which are "the functional equivalent of vexatious litigation," are also outside the scope of the doctrine. The court is not persuaded. The difficulty with this argument is that the plaintiff’s claims unambiguously do not assert liability for vexatious litigation. Moreover, claims breach of the covenant of good faith and negligent infliction of emotional distress have been subject to the defense of absolute immunity. See respectively Bruno v. Travelers Companies, supra, 172 Conn.App. 722 and Perugini v. Giuliano, 148 Conn.App. 861, 875, 89 A.3d 358 (2014).
The fifth count is more problematic. The factual predicates relied upon by the plaintiff for violations of CUTPA (based on CUIPA violations) are business practices related to conditioning receipt of UIM benefits upon the provision of an affidavit of no excess insurance and responding falsely to discovery requests, TT 48 and 49. The latter are clearly communications flowing from, and related to the subject matter of, the judicial process and thus entitled to the protection of the doctrine. The former, however, represents conduct not made in the course of a judicial proceeding. Indeed the complaint alleges that demands that the plaintiff provide an affidavit of an excess insurance, were made, inter alia, on April 16, 2015, May 26, 2015 and June 29, 2015, all dates before the present action was commenced. The Appellate Court has made clear that while statements made during the course of litigation are shielded by the doctrine of absolute immunity, allegations that are based on a defendant’s conduct that did not occur during a judicial proceeding are not. Fiondella v. City of Meriden, supra, 186 Conn.App. 562. Because the allegation that the agents of Liberty Mutual conditioned the plaintiff’s right to continue pursuit of her claim upon the provision of an affidavit of no excess insurance alleges conduct not made in the course of a judicial proceeding, it is not subject to the protection of the doctrine of absolute immunity.
It is true that ¶50 makes various assertions claiming violations of various sub-sections of § 38a-816(6). These are, however, mere conclusory statements without explicit factual underpinnings. The Superior Court has observed that although for purposes of a motion to dismiss all factual allegations in the complaint must be accepted as true, this principle does not apply to legal conclusions couched as factual allegations. Bandy v. Esserman, Superior Court, judicial district of New Haven, Docket No. CV156057156S, 2018 WL 1177436, at *3 (Feb. 8, 2018, Wilson, J.); Edelman v. Laux, Superior Court, judicial district of Windham, Docket No. CV115005710, 2013 WL 4504793, at *20 (July 26, 2013, Boland, J.).
The question remains as to how to craft a remedy appropriate to the present holdings. The allegation of a violation of CUIPA based on a lawful business practice of conditioning coverage upon the provision of proof of no excess insurance, over which the court has jurisdiction, is intermingled in the same count with the claim based on false discovery responses, over which the court has concluded it has no jurisdiction. As noted by the plaintiff, judges of the Superior Court have countenanced the granting of a motion to dismiss only portions of a complaint, including individual paragraphs. See Cavaciuti v. Gnesda, Superior Court, judicial district of Hartford, Docket No. CV146050720S, 2015 WL 3875300, at *3 (May 28, 2015 Peck, J.) (compiling cases). Such a remedy is consonant with the policy preference for finding the existence of subject jurisdiction which inheres in the policy of considering allegations of a complaint in their most favorable light and requiring every presumption favoring jurisdiction to be indulged. See Cuozzo v. Town of Orange, 315 Conn. 606, 615, 109 A.3d 903, 908 (2015) ("When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ... construing them in a manner most (favorable to the pleader"). The court thus grants the motion to dismiss all claims of a violation of CUIPA/CUTPA in the fifth count except that which is based on a violation of § 38a-336c(c).
For the foregoing reasons, the court dismisses the third and fourth counts of the complaint and those claims in the fifth count that are not based on a violation of § 38a-336c(c).