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Dorfman v. Liberty Mutual Fire Ins. Co.

TAMARA DORFMAN v. LIBERTY MUTUAL

FIRE INSURANCE COMPANY

(AC 45389)

Alvord, Elgo and Seeley, Js.

Syllabus

The plaintiff sought to recover damages from the defendant, her automobile

insurance provider, claiming, inter alia, that the defendant’s pleading

conduct in a prior action involving the parties amounted to vexatious

litigation. The plaintiff had been involved in a motor vehicle collision

with S, who failed to stop his vehicle at a stop sign. During its yearlong

investigation of the plaintiff’s claim for underinsured motorist benefits,

the defendant acquired the police report regarding the collision, the

plaintiff’s recorded statement and the recorded statement of a witness

to the collision who was not listed in the police report. The defendant’s

claims specialists determined that S was 100 percent liable for the

collision and noted their findings in the claim file. The plaintiff commenced the prior action against S, who was underinsured. After citing

in the defendant as an additional party, the plaintiff alleged, inter alia,

a breach of contract claim against the defendant for its failure to pay

her underinsured motorist benefits, as well as claims for breach of the

implied covenant of good faith and fair dealing and violation of the

Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.)

based on alleged violations of the Connecticut Unfair Insurance Practices Act (CUIPA) (§ 38a-815 et seq.). Before the defendant filed an

answer, the plaintiff settled her claim with S for the limit of his insurance

policy and withdrew the action against him. The defendant hired attorneys to represent it in connection with the plaintiff’s action but deliberately withheld from them its file notes, which included the recorded

statement and the identity of the witness to the collision. In the defendant’s initial answer to the complaint, which was filed one year after

the conclusion of its investigation into the plaintiff’s claim, the defendant

denied or stated that it did not have sufficient information to admit the

plaintiff’s allegations regarding the cause of the collision and her injuries,

and asserted a special defense of contributory negligence. The defendant

provided false responses to the plaintiff’s discovery requests, including

that it did not know of the existence of a witness to the collision or

whether any recorded statements of witnesses existed. In the plaintiff’s

deposition of the defendant, its designee admitted that the defendant

had been aware of the witness to the collision and his recorded statement

but failed to disclose that information in its interrogatory responses.

Prior to trial, the defendant withdrew its special defense. The defendant

then admitted liability at trial on the breach of contract claim, and a

jury awarded the plaintiff damages. The trial court then granted in part
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Dorfman v. Liberty Mutual Fire Ins. Co.

the defendant’s motion to dismiss the plaintiff’s other claims. The court

dismissed her claim for breach of the implied covenant of good faith and

fair dealing on the ground that it was barred by the litigation privilege,

as it was predicated on communications and statements filed in the

course of and related to a judicial proceeding. The court also dismissed

in part her claim for a violation of CUTPA based on the defendant’s

alleged violation of CUIPA, to the extent that the defendant had a

business practice of responding falsely to discovery requests. The court

rendered judgment for the plaintiff on the breach of contract claim and

for the defendant on the extracontractual claims, and our Supreme

Court in Dorfman v. Smith (342 Conn. 582) affirmed the trial court’s

judgment. The plaintiff then filed the present action, alleging claims for

common-law and statutory (§ 52-568 (1) and (2)) vexatious litigation

and violations of CUTPA based on the defendant’s alleged violations of

CUIPA. Among other things, the plaintiff claimed that, in the prior action,

the defendant had asserted its contributory negligence special defense

and filed false pleadings without probable cause and with malice, and

refused to admit certain allegations of her complaint, despite having

had the information gathered during its investigation of the plaintiff’s

claim. The trial court granted the defendant’s motion for summary judgment, in which it contended, inter alia, that all of the plaintiff’s claims

were barred by the litigation privilege and that its pleadings in the

prior action were filed with probable cause and without malice. On the

plaintiff’s appeal to this court from the judgment of the trial court, held:

1. The defendant could not prevail on its claim that a vexatious litigation

action cannot be premised on allegedly false answers to a complaint in

a prior action, as, under the particular facts of this case, the plaintiff’s

allegations concerning the defendant’s alleged bad faith pleading in the

prior action properly asserted causes of action for vexatious litigation:

a. This court determined that Connecticut case law has expressed agreement with § 674 of the Restatement (Second) of Torts, which permits

such a cause of action for a party’s conduct in continuing litigation

without probable cause, and the plaintiff’s allegations addressed the

defendant’s conduct that prolonged the Smith action with respect to the

breach of conduct count against the defendant, for which the defendant

eventually admitted liability; moreover, this court did not believe, contrary to the defendant’s contention, that, under the particular circumstances at issue, its decision would open floodgates to litigation or impose

unreasonable pleading requirements on parties, as vexatious litigation

actions contain inherent safeguards, including a lower threshold to establish probable cause and requirements that plaintiffs demonstrate a lack

of probable cause for the prior proceeding, that the prior proceeding

terminated in their favor and a showing of malice when treble damages

are sought under § 52-568 (2); furthermore, the possibility that a vexatious

litigation claim can be based on a bad faith denial in an answer did not

mean that the ability of defendants to hold plaintiffs to their proof will
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Dorfman v. Liberty Mutual Fire Ins. Co.

be chilled or that an inartfully pleaded answer or mere denial of an

allegation in a civil proceeding will subject individuals to vexatious

litigation actions, as it typically will be difficult to establish a lack of

probable cause when discovery in most cases is conducted after the

filing of an answer, and the lack of probable cause requirement acts as

a formidable barrier to baseless claims and serves to minimize any

chilling effect on zealous advocacy.

b. The defendant’s claim that the plaintiff’s remedy for untrue or

unfounded allegations in a complaint was limited to sanctions under the

applicable statute (§ 52-99) and rule of practice (§ 10-5) was unavailing;

our Supreme Court in Smith stated that a vexatious litigation action

was one of many remedies available to the plaintiff in challenging the

defendant’s conduct, which included a court’s inherent authority to sanction parties for litigation misconduct, and neither § 52-99 nor Practice

Book § 10-5 include language indicating that they are the exclusive remedy for untrue pleadings.

c. This court concluded that the defendant’s denials of allegations in the

prior action that it allegedly knew to be true constituted the assertion

of a defense within the meaning of § 52-568: contrary to the defendant’s

claim that the phrase ‘‘asserts a defense’’ in § 52-568 should not be

applied to a defendant’s answer, denial or plea, this court determined

that, although § 52-568 does not define ‘‘defense,’’ the commonly used

dictionary definition of ‘‘defense’’ includes a denial and, thus, it would

have been superfluous for the legislature to add ‘‘denial’’ to the statutory

language; moreover, the general denial of a complaint’s factual allegations is, in essence, the assertion of a defense to those allegations, and

the defendant presented no authority suggesting the contrary or that

‘‘defense’’ in § 52-568 must be limited to special defenses; furthermore,

to conclude that a denial in an answer is not a defense would contravene

the purpose of § 52-568 in making clear that it is the strong public policy

of the state to discourage dishonesty during the litigation process.

2. The trial court improperly granted the defendant’s motion for summary

judgment as to the plaintiff’s vexatious litigation claims, the court having

applied an incorrect legal standard in making its probable cause determination: the court focused on and limited its analysis to whether issues

of material fact existed as to the cause of the plaintiff’s injuries when

it instead should have looked critically at each of the defendant’s representations at issue, alongside the information within the defendant’s

knowledge at the time it made those representations, to determine if

issues of material fact existed as to whether there was probable cause

for the defendant’s denials of allegations unrelated to the plaintiff’s

injuries and its assertion of contributory negligence as a special defense;

moreover, the court did not take into account the defendant’s denials

of allegations pertaining to how the collision occurred and whether it

was caused by S, as well as the assertion of contributory negligence,

when the defendant’s own internal investigation indicated that S was 100
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Dorfman v. Liberty Mutual Fire Ins. Co.

percent responsible for the collision; furthermore, the court improperly

concluded that the defendant met its burden of showing that no issue

of material fact existed as to whether it had probable cause for pleading

as it did, as the court did not consider that the defendant did not submit

documentary evidence or affidavits in support of its summary judgment

motion to demonstrate that it lacked knowledge of the contents of the

documents and information gathered as part of its investigation, or that

it had an objectively reasonable, good faith belief in the facts alleged

in its answers and the validity of its special defense; accordingly, because

the underlying facts that formed the basis for determining whether the

defendant had probable cause to plead as it did were disputed, and the

court failed to address the defendant’s other arguments in support of its

motion for summary judgment, the trial court’s judgment was reversed

as to the vexatious litigation claims and the case was remanded for

further proceedings.

3. The plaintiff’s claim that the trial court improperly rendered summary

judgment on the CUTPA and CUIPA counts of her complaint was unavailing; although the court applied an incorrect legal standard in concluding

that its prior probable cause determination made it unnecessary to

address those claims, this court upheld the summary judgment on the

alternative ground that those claims were barred by the litigation privilege, as the CUTPA and CUIPA counts were based on the same conduct

underlying the vexatious litigation claims, which the court in Smith

determined were protected by the litigation privilege.

(One judge concurring in part and dissenting in part)

Argued September 12, 2023—officially released August 20, 2024

Procedural History

Action to recover damages for, inter alia, vexatious

litigation, and for other relief, brought to the Superior

Court in the judicial district of Hartford, where the

court, Noble, J., granted the defendant’s motion for summary judgment and rendered judgment thereon, from

which the plaintiff appealed to this court. Reversed in

part; further proceedings.

David P. Friedman, with whom, on the brief, were

Marilyn B. Fagelson, Julie A. Lavoie and Leonard M.

Isaac, for the appellant (plaintiff).

Philip T. Newbury, Jr., for the appellee (defendant).
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Dorfman v. Liberty Mutual Fire Ins. Co.

Opinion

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 vexatious litigation prior to

granting the defendant’s motion for summary judgment,1 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.

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

1 See footnote 37 of this opinion.
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Dorfman v. Liberty Mutual Fire Ins. Co.

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 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.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 received

2 Smith’s insurance policy had a limit of $50,000, and the plaintiff’s damages

exceeded that amount.
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Dorfman v. Liberty Mutual Fire Ins. Co.

a 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]

3 ‘‘[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, 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).
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Dorfman v. Liberty Mutual Fire Ins. Co.

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 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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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

4 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.
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Dorfman v. Liberty Mutual Fire Ins. Co.

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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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,

5 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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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

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.’’
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Dorfman v. Liberty Mutual Fire Ins. Co.

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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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

6 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] . . . .’’ 7 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
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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

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.’’ 8 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
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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

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. 9 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. 10 Specifically, the court stated: ‘‘In the present case, as argued by [the

defendant], ‘it was necessary to fully substantiate facts and information
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Dorfman v. Liberty Mutual Fire Ins. Co.

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

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.’’
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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]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. . . .

‘‘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
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Dorfman v. Liberty Mutual Fire Ins. Co.

Connecticut, Inc., 203 Conn. App. 845, 858–59, 251 A.3d

994, cert. denied, 336 Conn. 947, 251 A.3d 77 (2021).

I

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] § 52-9911

and Practice Book § 10-5,12 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 contributory 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

11 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. 12 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 . . . .’’
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been addressed by the appellate courts of this state.13

We address this claim first because, if the allegations

in the vexatious litigation counts pertaining to the

defendant’s alleged conduct in filing false answers in

13 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 common-law 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, 160–61. 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).
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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

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. 612. 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
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Dorfman v. Liberty Mutual Fire Ins. Co.

Connecticut case law squarely on point with the issue,

either in support of or against it, nor has our research

revealed any such case.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,15 (2) if

14 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 (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., 438. The court in Silano,

therefore, never addressed the issue before us in this appeal. 15 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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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.

1

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

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, 150. 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, 76 n.11; 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).
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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 (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.)).

‘‘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.’’16 (Internal quotation marks omitted.) Falls Church Group, Ltd.

16 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’ . . .)).’’ North-
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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).

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 . . . .’’17 (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

east Building Supply, LLC v. Morrill, 224 Conn. App. 137, 154 n.9, 312 A.3d

138 (2024). 17 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).
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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.18

18 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); Horne 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 (1988); Dawson

v. Mead, 98 Idaho 1, 5, 557 P.2d 595 (1976); Beaman v. Freesmeyer, 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. 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 & Refinery 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); Nielson 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 Wn. App. 665, 695, 82 P.3d 1199, review

denied, 152 Wn. 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).
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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.19 We cannot think of any

19 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 (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 (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 (August 19, 1991) (4 Conn. L. Rptr. 430, 430)
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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 A.3d 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).

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 common-law 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

(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).
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ability to obtain certain necessary approvals for a development project. Id., 667–68. The trial court rendered

summary judgment in favor of the defendants, and, on

appeal, this court reversed that judgment. Id., 672, 691.

After citing DeLaurentis and our Supreme Court’s

‘‘agree[ment] with the Restatement (Second) of Torts,

§ 680’’; (internal quotation marks omitted) id., 681; 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., 683.

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.,

52; and (2) to appeal from the denial of its motion to

open the judgment in the foreclosure action. Id., 54.

This court quoted the language from DeLaurentis 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., 45 n.6. We ultimately concluded that the defendants

‘‘did not lose probable cause to pursue the foreclosure

action because of adverse rulings along the way’’; id.,

53; and that probable cause existed to pursue the

appeal. Id., 54. 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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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., 851. 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., 859;

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’’).

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.

248. 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
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responding to unwarranted actions. See BernhardThomas Building Systems, LLC v. Dunican, supra, 286

Conn. 554.20

2

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.

20 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’’).
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Dorfman v. Liberty Mutual Fire Ins. Co.

Oatis, supra, 167 Conn. App. 683 (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 (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 Fairfield, Docket No. CV-18-6072543-

S (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. 36 (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 (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 (August 19, 1991) (4 Conn. L. Rptr. 430, 430)

(holding that defendants’ continuation of administrative

proceeding by taking appeal was sufficient to support
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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 commonlaw and statutory vexatious litigation claims).

3

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.

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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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’’).

‘‘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. 219; or filing an appeal.21 See Schaeppi

v. Unifund CCR Partners, supra, 161 Conn. App. 36.

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,

21 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.
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Dorfman v. Liberty Mutual Fire Ins. Co.

535, 955 A.2d 667 (2008); makes no exception for a

party’s answer.22

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 underinsured 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

22 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. . . .’’
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Dorfman v. Liberty Mutual Fire Ins. Co.

the defendant did not file its first answer to the complaint until May, 2016, after Smith settled with the plaintiff.

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.23 The defendant asserts that ‘‘[t]he plaintiff

23 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.’’).
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Dorfman v. Liberty Mutual Fire Ins. Co.

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

basis 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.

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. 791 (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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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. 605;

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. 107. 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.

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 requirement, thus,

acts as a formidable barrier to baseless vexatious litigation actions, as liability will attach only under narrow
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Dorfman v. Liberty Mutual Fire Ins. Co.

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. 232; 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.

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) (action 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.
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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 litigation24 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.

24 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, 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.
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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,25 and Hawaii26 rejecting the creation of a cause

of action for malicious defense. For example, the concurring and dissenting opinion refers to the fact that

25 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). 26 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,
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‘‘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. 769. 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

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, 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.
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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.

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
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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.

Indeed, the defendant in the present case exemplified

this practice in its December 15, 2016 answer when it
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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.27

27 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
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4

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 § 10-5.28 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.,

defendant had probable cause to plead denials in its answer and amended

answers, which were filed prior to the admissions. 28 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., 431.

The court explained further that ‘‘the existing rules and statutes do not

fully remedy the harms inflicted by protracted litigation’’; id., 432; 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., 432–

33.
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[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.)).

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 § 10-5.29 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

29 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
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Dorfman v. Liberty Mutual Fire Ins. Co.

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] (‘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 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.’’

available under § 52-99 and Practice Book § 10-5 do not preclude a tort

action for vexatious litigation based on the same conduct.
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Dorfman v. Smith, supra, 342 Conn. 597. 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., 595. 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. 596, 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.,

599. 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
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for litigation misconduct’’; id., 611; 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., 612. 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. 264].

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, 612. 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
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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
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and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not

be considered.’’

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
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defense asserted in an action,30 as well as by an answer

denying 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.

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.,

30 ‘‘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. 817. ‘‘An answer and a special

defense have legally distinct functions . . . .’’ Id., 816–17. ‘‘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., 818. ‘‘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).
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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
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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. 375; 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.’’

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 Correction, 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,
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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], 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. 203,

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
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(2013), the dispositive issue before this court was

‘‘whether evidence of a plaintiff’s posttreatment 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., 450; and ‘‘pursuant to a general denial.’’ Id.,

452. 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.

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. 644 (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
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Systems, LLC v. Dunican, supra, 286 Conn. 553–54.

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. 94; see also Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 554;

DeLaurentis v. New Haven, supra, 220 Conn. 256;

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, 103; 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
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Conn. App. 683 (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. 41–42 (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. 851 (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,

668 (interventions in administrative action); Schaeppi

v. Unifund CCR Partners, supra, 41–42 (appeal from

denial of motion to open foreclosure judgment); Spilke

v. Wicklow, 138 Conn. App. 252, 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);31 Perez v. D & L Tractor Trailer School,

31 We note that in Spilke v. Wicklow, supra, 138 Conn. App. 255–56, 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., 261. 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., 256. 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.
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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. 49 (shareholder litigation and subsequent appeal

therefrom); Duse v. Carter, supra, 9 Conn. App. 219

(filing motion for contempt in prior marital dissolution

action without probable cause); Nutmeg Financial

Holdings, LLC v. Bachleda, supra, Superior Court,

Docket No. CV-21-6142429-S (moving to open judgment

and appealing therefrom); Silano v. Verespy, supra, 68

Conn. L. Rptr. 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.

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
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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.

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. 853–54.

‘‘[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. 95.

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
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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.

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.
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104–105. 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.’32 Given the intrinsic

32 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
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uncertainty of the nature of a claim of injuries proximately caused by another’s negligence,33 [the defendant] had probable cause to answer the complaint in

the manner in which it did.’’ (Citation omitted; emphasis

omitted; footnotes added.).

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

is used to develop claims that have been properly pleaded, not to create

them.’’ Id., 357; see also Somers v. Chan, supra, 110 Conn. App. 535 (‘‘[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’’). 33 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.
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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
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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
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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.

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 ‘100 [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. 586, our Supreme Court noted that, through the
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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.34 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,

34 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. 587. 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.
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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.

Additionally, in the present case, the defendant did

not submit documentary evidence or affidavits35 demonstrating 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.36 See Rockwell v. Rockwell, 178 Conn. App. 373, 397–98, 175 A.3d

35 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. 117;

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). 36 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
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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 denied’’). 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. 94; when the underlying facts that form the basis

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 tortfeasor’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.
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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. 791 (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).

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. 252–53: ‘‘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. 90–92 (trial court bifurcated issue of

probable cause, conducted evidentiary hearing and then

concluded that probable cause existed); Rockwell 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.
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Dorfman v. Liberty Mutual Fire Ins. Co.

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.37 See Rozbicki v. Sconyers, supra, 198

Conn. App. 781 (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

37 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.
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Dorfman v. Liberty Mutual Fire Ins. Co.

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).
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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 CUTPA 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. 616, 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
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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.21, 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
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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. Burns, 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
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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. 93–94. 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. 617–20.

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
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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.38 Count

five alleges a business 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.

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.

617–20. 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.,

618. Although our Supreme Court left ‘‘open the possibility that other CUTPA claims may not be barred by

38 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.’’
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absolute immunity under the litigation privilege’’; id.,

620; 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.

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.