Opinion
KNLCV196039422S
12-02-2019
Elizabeth Sunshine v. The Cincinnati Insurance Company
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Knox, Kimberly Ann, J.
MEMORANDUM OF DECISION
Knox, J.
The defendant, The Cincinnati Insurance Company, moves to dismiss count two of the plaintiff’s complaint, pursuant to Practice Book § 10-30, on the ground that the court lacks subject matter jurisdiction over count two of the plaintiff’s amended complaint because it is barred by the litigation privilege. For the reasons discussed in this decision, the defendant’s motion to dismiss as to count two of the plaintiff’s amended complaint is granted.
FACTS
The plaintiff, Elizabeth Sunshine, filed a two-count amended complaint on May 31, 2019, against the defendant, The Cincinnati Insurance Company, in which she alleges the following facts. The present action arises out of an automobile accident that resulted in injuries to the plaintiff on or about March 17, 2016. The plaintiff owned and operated a motor vehicle and was traveling south on Prospect Street, proximate to its intersection with Hickory Street, in Norwich. As the plaintiff traveled through the intersection with Hickory Street, the plaintiff’s vehicle was hit by that of the alleged tortfeasor, Shugiang Jiang.
The plaintiff filed her original complaint on February 15, 2019, and the defendant filed an answer with special defenses on May 1, 2019. On May 31, 2019, the plaintiff filed a request to amend the complaint to add count two, labeled "Bad Faith/Unfair Trade Practices." The defendant did not object to the plaintiff’s request to amend, and the amended complaint became operative pursuant to Practice Book § 10-60(a)(3). The defendant filed the present motion to dismiss in response to the plaintiff’s amended complaint.
Count one of the plaintiff’s amended complaint alleges a claim for underinsured motorist coverage (UIM), pursuant to General Statutes § § 38a-334 and 38a-336 and/or § 38a-334-6 of the Regulations of Connecticut State Agencies. The plaintiff alleges that she exhausted the coverage available under the alleged tortfeasor’s insurance policy, that the coverage available was inadequate to fully compensate the plaintiff for her injuries, and that the defendant is obligated to compensate her pursuant to the UIM provisions of her policy. Count two of the plaintiff’s amended complaint alleges that the defendant "knowingly participated and/or engaged in unfair trade practices," in violation of the Connecticut Unfair Trade Practices Act (CUTPA), pursuant to General Statutes § 42-110b, when it refused to admit factual allegations that concern the subject of the UIM claim and asserted the plaintiff’s negligence without probable cause. Additionally, the plaintiff alleges that the defendant engaged in unfair practices when it "misrepresented pertinent facts or insurance policy provisions relating to coverage at issue" in violation of § 38a-816(6)(A) and (F). The plaintiff seeks monetary damages for her personal injuries as a result of the collision with the alleged tortfeasor, as well as punitive damages and attorneys fees pursuant to CUTPA. The plaintiff alleges that the defendant "refuses to admit numerous factual allegations," and has asserted a special defense without probable cause. (Amended Compl., paras 28-31.) These allegations regarding the responses to the complaint and affirmative special defenses form the bases of the bad faith and statutory claims, which are cumulatively set forth in count two.
On May 1, 2019, before the plaintiff filed her amended complaint, the defendant filed an answer and three special defenses including the plaintiff’s contributory negligence and other statutory limits on the plaintiff’s claims. On May 10, 2019, the plaintiff filed a request to revise the defendant’s first special defense, which alleges the plaintiff’s contributory negligence, and the defendant objected. This court sustained the defendant’s objection.
On August 1, 2019, the defendant filed the motion to dismiss count two of the plaintiff’s amended complaint on the ground that the court lacks subject matter jurisdiction based on absolute immunity. The plaintiff filed a memorandum in opposition on August 6, 2019, and the defendant filed a reply to the plaintiff’s opposition on August 21, 2019. The defendant’s motion to dismiss was argued at short calendar on September 16, 2019.
DISCUSSION
"[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). "As the doctrine of absolute immunity concerns a court’s subject matter jurisdiction ... in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Tyler v. Tatoian, 164 Conn.App. 82, 87, 137 A.3d 801, cert. denied, 321 Conn. 908, 135 A.3d 710 (2016).
In the defendant’s motion to dismiss count two of the plaintiff’s amended complaint, the defendant argues that the court lacks subject matter jurisdiction over that claim because it is barred by the litigation privilege. It maintains that the plaintiff’s CUTPA claim is entirely premised on the defendant’s pleadings, specifically its answer and special defenses. In opposition, the plaintiff argues that the litigation privilege is not applicable if the defendant’s assertions are proven to be vexatious, baseless, frivolously asserted, or made only for the purpose of delaying litigation. The plaintiff also argues that in order to avoid the doctrines of res judicata and collateral estoppel, the CUTPA claim must be asserted in the present case, not in a subsequent action. In the defendant’s reply, the defendant argues that collateral estoppel and res judicata are inapplicable, and even if they were applicable, neither collateral estoppel nor res judicata can save a claim that is barred by absolute immunity. In addition, the defendant argues that the plaintiff’s objection reveals the true nature of the plaintiff’s claim, sounding in vexatious litigation or abuse of process, not CUTPA, and that those causes of action cannot be brought until the underlying action has concluded.
I
ABSOLUTE IMMUNITY
"It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." Tyler v. Tatoian, supra, 164 Conn.App. 88. "The [litigation] privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding." Simms v. Seaman, 308 Conn. 523, 562-63, 69 A.3d 880, 902 (2013). "The litigation privilege was initially applied to bar claims of defamation ... More recently, however, our Supreme Court has expanded the scope of immunity afforded to statements made during the course of a judicial proceeding beyond defamation." Tyler v. Tatoian, supra, 164 Conn.App. 88. Connecticut courts have expanded the litigation privilege to other torts. See, e.g., Simms v. Seaman, supra, 308 Conn. 562 (common-law fraud); Rioux v. Barry, 283 Conn. 338, 350-51, 927 A.2d 304 (2007) (intentional interference with contractual or beneficial relations); Petyan v. Ellis, 200 Conn. 243, 255, 510 A.2d 1337 (1986) (intentional infliction of emotional distress); Tyler v. Tatoian, supra, 164 Conn.App. 93-94 (fraud and CUTPA). A statement is relevant when "the communication has some reference to the subject matter of the proposed or pending litigation, although it need not be strictly relevant to any issue involved in it." Brown v. Shipman & Goodwin, Superior Court, judicial district of Hartford, Docket No. CV-16-5042827-S (June 14, 2017, Peck, J.).
Connecticut courts have used the terms "absolute immunity," "litigation privilege," and "absolute privilege" interchangeably. See Bruno v. Travelers Co., 172 Conn.App. 717, 730 n.2, 161 A.3d 630 (2017).
In the present case, the litigation privilege bars the plaintiff’s CUTPA claim against the defendant. The plaintiff’s amended complaint alleges that the defendant’s refusal to admit or deny certain factual allegations within its answer and special defenses in the Superior Court litigation constitutes bad faith and a violation of CUTPA. The defendant’s statements in its pleadings and special defenses were made in the course of judicial proceedings and are relevant to the subject of the underlying litigation because the statements were made during the pendency and in defense of the UIM claim.
In her opposition to the defendant’s motion to dismiss, the plaintiff argues that although the defendant’s statements may be privileged, the defendant’s conduct in making those statements are not privileged. This distinction is unpersuasive because the plaintiff’s factual basis for count two is based solely on statements made in the course of judicial proceedings. Moreover, Connecticut courts have concluded that the litigation privilege is applicable to bar a plaintiff’s CUTPA claim. In Tyler v. Tatoian, supra, 164 Conn.App. 93-94, the Appellate Court held that the plaintiff’s CUTPA claims were privileged because the factual allegations of the claim arose out of the defendant’s communications made in a prior judicial proceeding for the defendant’s alleged mismanagement of a trust. Specifically, the court noted that the letter, which formed the factual basis of the plaintiff’s CUTPA claim, "was published in the course of, and was clearly pertinent to, a judicial proceeding." Id. In addition, judges of the Superior Court have also concluded that the litigation privilege applies to CUTPA claims if based upon statements published during a judicial proceeding. See, e.g., Ghio v. Liberty Ins. Underwriters, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-19-6104759-S (April 12, 2019, Moukawsher, J.) ; Piels v. Bendett & McHugh, P.C., Superior Court, judicial district of Fairfield, Docket No. CV-14-5030189-S (September 19, 2016, Arnold, J.) ; Krol v. Halloran & Sage, LLP, Superior Court, judicial district of Fairfield, Docket No. CV-11-6018792-S (January 24, 2013, Gilardi, J.T.R.); Jonas v. Delallo, Superior Court, judicial district of Fairfield, Docket No. CV-10-5029297-S (December 11, 2012, Bellis, J.) . It is clear that the litigation privilege applies in the context of CUTPA claims.
Furthermore, the purposes of the litigation privilege weigh in favor of the application of the litigation privilege to the plaintiff’s CUTPA claim. "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." Simms v. Seaman, supra, 308 Conn. 539. In the present case, applying the litigation privilege to the statements made in the defendant’s answer and special defense serve the public interest in encouraging the defendants to speak freely in admitting or denying allegations in the plaintiff’s complaint and to participate in the litigation by pleading special defenses. It is clear that statements within pleadings are "precisely [the] type of communication that the litigation privilege was intended to protect because the benefit of encouraging defendants to speak candidly in judicial proceedings outweighs the risk of a defendant abusing the privilege by lying under oath." Tyler v. Tatoian, supra, 164 Conn.App. 92.
In the plaintiff’s objection, the plaintiff also argues that count two of the amended complaint falls under the exceptions to the litigation privilege as pronounced in MacDermid, Inc. v. Leonetti, 310 Conn. 616, 631, 79 A.3d 60 (2013). Specifically, she argues that the litigation privilege does not apply where the defendant’s conduct is found to be groundless, vexatious or otherwise exercised to delay the payment of unjust benefits for the UIM claim. "In expanding the scope of the litigation privilege ... our Supreme Court has recognized a distinction 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." (Internal quotation marks omitted.) Tyler v. Tatoian, supra, 164 Conn.App. 88. Connecticut courts have precluded the application of the litigation privilege to claims alleging abuse of process and vexatious litigation. See, e.g., MacDermid, Inc. v. Leonetti, supra, 310 Conn. 616.
"The torts of vexatious litigation and abuse of process both prohibit conduct that subverts the underlying purpose of the judicial process. Specifically, these causes of action prevent, or hold an individual liable for, the improper use of the judicial process for an illegitimate purpose, namely, to inflict injury upon another individual in the form of unfounded actions ... The illegitimate use of litigation in such a retaliatory manner subverts the purpose of the judicial system and, as a matter of public policy, [courts] will not encourage such conduct by affording it the protection of absolute immunity." (Citation omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 631. In the present case, the plaintiff’s amended complaint indicates allegations stemming from bad faith and unfair practices in violation of CUTPA. The plaintiff has not brought a claim for abuse of process or vexatious litigation. Furthermore, the defendant’s alleged bad faith in its answer and special defenses stems from the mere participation in the plaintiff’s UIM claim and cannot be construed as an improper use of the judicial process, which cannot serve as the basis for a vexatious litigation or abuse of process claim.
Additionally, even if the plaintiff has properly pleaded a vexatious litigation or abuse of process claim, the plaintiff’s characterization of the defendant’s conduct as bad faith does not bring the conduct into the limited exception delineated in MacDermid, Inc., for conduct that subverts the purpose of the judicial system. See Tyler v. Tatoian, supra, 164 Conn.App. 93 ("[t]he fact that the [plaintiff] characterized the defendant’s allegedly fraudulent conduct as an abuse of the legal system does not mean that it falls within the limited exception announced in MacDermid, Inc. "); see also MacDermid, Inc. v. Leonetti, supra, 310 Conn. 616. Moreover, even if the plaintiff’s claim could be construed as an abuse of process or vexatious litigation claim, the plaintiff’s claim would be premature as the UIM claim is still pending before this court. See Rioux v. Barry, supra, 283 Conn. 347 (requiring plaintiff to establish that underlying proceeding terminated in plaintiff’s favor for vexatious litigation claim); Larobina v. McDonald, 274 Conn. 394, 408, 876 A.2d 522 (2005) (finding that allowing an abuse of process claim against a party to pending litigation was duplicative and premature). Accordingly, because the litigation privilege bars the plaintiff’s CUTPA claim, and the exceptions in MacDermid, Inc., do not apply to the present case, count two of the plaintiff’s amended complaint is hereby dismissed for lack of subject matter jurisdiction.
II
RES JUDICATA
The plaintiff further argues that she is required to bring her CUPTA claim in the present action in avoidance of the doctrines of res judicata or collateral estoppel because both the breach of contract claim and the CUTPA claim arise from the same nucleus of facts.
"The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction ..." (Citations omitted.) Powell v. Infinity Insurance Co., 282 Conn. 594, 600, 922 A.2d 1073 (2007). "Application of the doctrine of res judicata requires that there be a previous judgment on the merits ... Judgment based on the following reasons are not rendered on the merits: want of jurisdiction; pre-maturity; failure to prosecute; unavailable or inappropriate relief or remedy; lack of standing ... A judgment on the merits is one which is based on legal rights as distinguished from mere matters of practice, procedure, jurisdiction or form ... A decision with respect to the rights and liabilities of the parties is on the merits where it is based on the ultimate fact or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends." (Citations omitted; internal quotation marks omitted.) Braham v. Newbould, Superior Court, judicial district of New Haven, Docket No. CV-12-5034199-S (August 3, 2012, Wilson, J.).
In Powell, the plaintiffs, after successfully bringing a breach of contract action for uninsured motorist coverage, brought a second action in bad faith for failure to pay uninsured motorist coverage pursuant to the terms of the contract. The Court held that the bad faith claim, which could have been brought with the breach of contract, was now extinguished by the prior judgment. However, the doctrine of litigation privilege was not considered in the Powell opinion. While pre-litigation conduct may also form a basis for bad faith claims in a breach of contract action, that is not the case presented here. In the amended complaint, the plaintiff has alleged bad faith by virtue of the defendant’s denials and defenses in the pending litigation. It is these allegations by the plaintiff that trigger the application of the litigation privilege.
Therefore, the doctrines of res judicata or collateral estoppel do not apply to the plaintiff’s CUTPA claim because this court does not have subject matter jurisdiction over this claim, pursuant to the litigation privilege. "[A] court lacks discretion to consider the merits of a case over which it is without jurisdiction." See Braham v. Newbould, supra, Superior Court, Docket No. CV-12-5034199-S. Therefore, because this court lacks subject matter jurisdiction over the plaintiff’s CUTPA claim, the court is without authority to evaluate the plaintiff’s argument as to the applicability of the doctrines of res judicata or collateral estoppel.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss count two of the complaint is granted.