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Date: 08-20-2024
Case Style:
Tamara Dorfman v. Liberty Mutual Fire Insurance Company
Case Number:
Judge: Noble
Court: Superior Court, Hartford County, Connecticut
Plaintiff's Attorney:
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Defendant's Attorney: Philip T. Newbury
Description:
Hartford, Connecticut insurance law lawyers represented the Plaintiff.
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 underinsured 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 ofno 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 underin-sured.[2] 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 receiveda signed release of the plaintiff's claim against Smith for his policy limit of $50,000 on January 5, 2016.
''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,[3] even though it knew this to be false....
''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 defen dant'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 extracontractual 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.[4]
''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. 587-90. Our Supreme Court affirmed the judgment dismissing the remaining claims on the ground of the litigation privilege. Id., 586.
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).[5] 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 trouble [the plaintiff] and to force her to incur increased litigation costs.''
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.[6]
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 '100 [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).[7] 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.
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.[8] 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.
In a memorandum of decision dated March 7, 2022, the court granted the defendant's motion for summary judgment as to all counts.[9] In doing so, the court concluded that the defendant's pleadings in the Smith action ''were filed with probable cause.''[10] 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.
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 fact, but rather to determine whether any such issues exist....
''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]em-onstrating 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....
''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 fol lows 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 isno 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).
Outcome: 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.
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