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ELGO, J., concurring in part and dissenting in part.

This case presents a question of first impression regarding an action for vexatious litigation predicated on a

defendant’s answer to a civil complaint. I agree with

the majority’s rejection of the claims of the plaintiff,

Tamara Dorfman, regarding her ability to obtain meaningful discovery prior to the rendering of summary judgment and the analysis employed by the trial court on

her claims under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and the

Connecticut Unfair Insurance Practices Act, General

Statutes § 38a-815 et seq. I disagree in part with the

majority’s conclusion that the court improperly rendered summary judgment in favor of the defendant,

Liberty Mutual Fire Insurance Company, on the vexatious litigation counts of her complaint. I therefore

respectfully dissent in that limited regard.

Because the facts giving rise to this appeal are set

forth in the majority opinion, I focus my attention on the

plaintiff’s vexatious litigation claims. As our Supreme

Court has explained, ‘‘[t]he cause of action for vexatious

litigation permits a party who has been wrongfully sued

to recover damages.’’ Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553, 944 A.2d

329 (2008). ‘‘A vexatious suit is a type of malicious

prosecution action, differing principally in that it is

based upon a prior civil action, whereas a malicious

prosecution suit ordinarily implies a prior criminal complaint. To establish either cause of action, it is necessary

to prove want of probable cause, malice and a termination of suit in the plaintiff’s favor.’’ Vandersluis v. Weil,

176 Conn. 353, 356, 407 A.2d 982 (1978); see also Allstate

Ins. Co. v. Opie, United States District Court, Docket

No. 3:13-CV-01101 (RNC) (D. Conn. December 9, 2014)

(‘‘vexatious litigation and malicious prosecution are so

similar as to be essentially the same tort’’).

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The archetype of either a common-law or statutory

action for vexatious litigation is the existence of a prior

lawsuit commenced by the defendant against the plaintiff. See, e.g., Bernhard-Thomas Building Systems,

LLC v. Dunican, supra, 286 Conn. 553 (‘‘[t]he cause of

action for vexatious litigation permits a party who has

been wrongfully sued to recover damages’’); Rioux v.

Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007) (‘‘[v]exatious litigation [generally] requires a plaintiff to establish that . . . the previous lawsuit or action was initiated or procured by the defendant against the

plaintiff’’); Christian v. Iyer, 221 Conn. App. 869, 871–

72, 303 A.3d 604 (2023) (plaintiffs brought vexatious

litigation action against defendant neighbors for instituting prior trespass action against them); Greene v.

Keating, 197 Conn. App. 447, 449–50, 231 A.3d 1178

(2020) (plaintiff brought vexatious litigation action

against defendant law firm for instituting prior action

against her).

This case does not involve a prior action initiated

by the defendant against the plaintiff, but rather one

instituted by the plaintiff against the defendant. See

Dorfman v. Smith, 342 Conn. 582, 586–87, 271 A.3d 53

(2022). It thus falls outside the archetype of a vexatious

litigation action, as the plaintiff here does not claim

that she was ‘‘wrongly sued’’; see Bernhard-Thomas

Building Systems, LLC v. Dunican, supra, 286 Conn.

553; by the defendant. Instead, the plaintiff’s vexatious

litigation action is predicated on her contention that

the defendant improperly (1) asserted the special

defense of contributory negligence and (2) denied certain paragraphs of her complaint in that prior action.1

I address each in turn.

1 With respect to the paragraphs of the plaintiff’s complaint that are at

issue in this appeal, the defendant pleaded either that the paragraph is

‘‘denied’’ or that the defendant ‘‘is without sufficient information to either

admit or deny the allegations, and, therefore, denies the allegations and

leaves the plaintiff to her proof.’’ (Emphasis added.) As our Supreme Court

has explained, ‘‘[t]he pleading of no knowledge or information to [the]

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I

Connecticut law has recognized that an action for

vexatious litigation may lie with respect to special

defenses asserted by a defendant in a prior action

between the parties.2 See Rozbicki v. Sconyers, 198

Conn. App. 767, 783, 234 A.3d 1061 (2020) (summary

judgment improperly granted because genuine issue

of material fact existed as to whether defendants had

probable cause to assert special defenses); Forsstrom

v. Smanik, Superior Court, judicial district of Windham

at Putnam, Docket No. CV-12-6005759-S (June 10, 2013)

(56 Conn. L. Rptr. 248, 250) (denying motion to strike

because vexatious litigation count of complaint sufficiently alleged that defendant played material role in

assertion of ‘‘vexatious defenses’’ without probable

cause). In the prior action at issue here, the defendant,

in its May 17, 2016 answer and special defenses, alleged

contributory negligence as a special defense in response

to the plaintiff’s amended complaint, which she filed

on December 22, 2015. For that reason, I agree with

the majority that it was not improper for the plaintiff

to commence a vexatious litigation action predicated

on the defendant’s assertion of that special defense.

In moving for summary judgment, the defendant bore

the burden of demonstrating the absence of a genuine

issue of material fact on the question of whether it

possessed probable cause to assert that special defense.

See Windsor v. Loureiro Engineering Associates, 181

Conn. App. 356, 369–71, 186 A.3d 729 (2018) (defendant

who moves for summary judgment on special defense

bears initial burden of proof); Trotter v. Anderson, 417

allegations is in effect a denial.’’ Postemski v. Watrous, 151 Conn. 183, 185,

195 A.2d 425 (1963). 2 Under our common law and rules of practice, special defenses must be

affirmatively pleaded by a party. See Coughlin v. Anderson, 270 Conn. 487,

501, 853 A.2d 460 (2004); see also Practice Book § 10-50.

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F.2d 1191, 1192 (7th Cir. 1969) (defendant seeking summary judgment on special defense of contributory negligence has ‘‘heavy burden’’ in establishing absence of

genuine factual dispute). As this court has noted, ‘‘[t]he

legal idea of probable cause is a bona fide belief in the

existence of the facts essential under the law for the

action and such as would warrant a person of ordinary

caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is the

knowledge of facts, actual or apparent, strong enough

to justify a reasonable man [or woman] in the belief

that he [or she] has lawful grounds for prosecuting the

defendant in the manner complained of. . . . Thus, in

the context of a vexatious suit action, the defendant lacks

probable cause if he [or she] lacks a reasonable, good

faith belief in the facts alleged and the validity of the

claim asserted. . . . [T]he existence of probable cause

is an absolute protection against an action for [vexatious litigation], and what facts, and whether particular

facts, constitute probable cause is always a question of

law. . . . [T]he standard is an objective one that is

necessarily dependent on what the [party] knew when

[it asserted the special defense].’’ (Citation omitted; internal quotation marks omitted.) Rozbicki v. Sconyers,

supra, 198 Conn. App. 774–75.

Because the defendant failed to adduce evidence in

support of its motion for summary judgment that would

support a good faith belief that the plaintiff was negligent in any manner, I would conclude that the court

improperly rendered summary judgment in favor of the

defendant with respect to the special defense of contributory negligence.3 I therefore concur with the majority

opinion in this respect.

3 I also find it noteworthy that only seven months after it asserted that

special defense—and more than twenty-one months before trial commenced—the defendant withdrew that defense. Accordingly, the relevant

time period for purposes of evaluating the plaintiff’s vexatious litigation

claim is that seven month window in which the defendant maintained the

special defense of contributory negligence.

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II

The plaintiff’s vexatious litigation counts also are

predicated on the defendant’s denial of certain paragraphs of her complaint in the prior action between the

parties.4 For two distinct reasons, I would conclude

that the court properly rendered summary judgment

with respect to those general denials.

A

First, I do not believe that the plaintiff has met her

burden of establishing that the scope of an action for

vexatious litigation encompasses general denials

pleaded by a defendant in response to a civil complaint

in a prior action. In that regard, it bears emphasis that,

in every appeal before this court, ‘‘the burden rests with

the appellant to demonstrate reversible error.’’ Jalbert

v. Mulligan, 153 Conn. App. 124, 145, 101 A.3d 279, cert.

denied, 315 Conn. 901, 104 A.3d 107 (2014); see also

Brookfield v. Candlewood Shores Estates, Inc., 201

Conn. 1, 7, 513 A.2d 1218 (1986) (‘‘[t]he burden is on

the appellant to prove harmful error’’); Harlow v. Stickels, 151 Conn. App. 204, 210, 94 A.3d 706 (2014) (‘‘[a]n

appellant bears the burden to show that there was error

from which she appeals’’). I am aware of no Connecticut

In its appellate brief, the defendant avers that, ‘‘[a]t no time prior to the

withdrawal of the special defense of contributory negligence on December

15, 2016, did the plaintiff take any depositions or disclose any experts as

to liability for the subject accident.’’ Although that allegation has no bearing

on the issue of probable cause before this court, it may be relevant to the

merits of the plaintiff’s vexatious litigation claim on remand. Also relevant

is the fact that, on August 10, 2016, the plaintiff filed a request for the

defendant to revise its contributory negligence special defense, arguing that

certain allegations did ‘‘not set forth any facts’’ and that the plaintiff was

‘‘entitled to know the facts upon which [the defendant’s] assertion is based.’’ 4 It is well established that an appellate court may ‘‘take judicial notice

of the court files in another suit between the parties, especially when the

relevance of that litigation was expressly made an issue at this trial.’’ McCarthy v. Warden, 213 Conn. 289, 293, 567 A.2d 1187 (1989), cert. denied, 496

U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990).

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authority, nor has the plaintiff identified any, that authorizes a plaintiff to maintain a vexatious litigation action

on the basis of general denials pleaded by a defendant

in response to a negligence claim in a prior action.5 To

resolve that question of first impression in this state, I

respectfully submit that the appropriate analytical

approach begins within the confines of Connecticut

law.6

5 Although the plaintiff’s complaint in the prior action alleged a breach

of contract on the part of the defendant, that count was premised on the

purported negligence of the tortfeasor, Joscelyn M. Smith, in whose shoes

the defendant stood as a party to that action. See Collins v. Colonial Penn

Ins. Co., 257 Conn. 718, 732–34, 778 A.2d 899 (2001) (plaintiff’s uninsured

motorist insurance carrier acts as surrogate for uninsured tortfeasor and

stands in shoes of tortfeasor); Anderson v. Peerless Ins. Co., Superior Court,

judicial district of Middlesex, Docket No. 66861 (February 3, 1993) (8 Conn.

L. Rptr. 728, 730) (‘‘the same defenses that the uninsured [tortfeasor] had

are also legitimate defenses for the carrier to invoke’’). To prevail in her

underinsured motorist action against the defendant, the plaintiff was

required to establish negligence on the part of Smith. See Collins v. Colonial

Penn Ins. Co., supra, 741 (‘‘[w]ithout proof of the negligence of a tortfeasor

. . . there can never be a recovery of uninsured motorist benefits’’); cf.

Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 204, 901 A.2d 666 (2006)

(‘‘[U]nderinsured motorist payments are not purely contractual in nature

because such payments operate in part as a liability insurance surrogate

for the underinsured motorist third party tortfeasor. . . . [U]nderinsured

motorist benefits are sui generis. They are contractual, but they depend on

principles of tort liability and damages.’’ (Internal quotation marks omitted.)); Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 26 n.9, 699 A.2d

964 (1997) (rejecting claim ‘‘that underinsured motorist payments are purely

contractual in nature’’ and emphasizing that ‘‘underinsured motorist payments are . . . exclusively premised upon a third party’s tort liability’’

(emphasis altered)); Miller v. State Farm Mutual Automobile Ins. Co., 993

A.2d 1049, 1055 (Del. 2010) (‘‘the determination of the insured’s damages

in an underinsured motorist claim is governed not by contract principles,

but by tort law’’). For that reason, the trial court correctly observed that

‘‘[t]he essential characteristic of [the plaintiff’s] underlying underinsured

motorist claim is that of an action in negligence.’’ 6 The majority’s analysis centers on a ‘‘determination of whether Connecticut follows’’ § 674 of the Restatement (Second) of Torts. For two reasons,

I respectfully disagree with that approach. First, on an elemental level, it

is axiomatic that such secondary sources are not binding on the courts of

this state and properly are used to inform our discussion of a matter of

state law, rather than drive it—particularly when statutory interpretation is

at issue. See, e.g., Stamford Property Holdings, LLC v. Jashari, 218 Conn.

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‘‘In Connecticut, the cause of action for vexatious

litigation exists both at common law and pursuant to

statute.’’ Bernhard-Thomas Building Systems, LLC v.

Dunican, supra, 286 Conn. 554. ‘‘A statutory action for

vexatious litigation under General Statutes § 52-568

. . . differs from a common-law action only in that a

finding of malice is not an essential element, but will

serve as a basis for higher damages.’’ (Citation omitted.)

Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,

LLP, 281 Conn. 84, 94, 912 A.2d 1019 (2007); see also

Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.

App. 582, 596, 715 A.2d 807 (1998) (‘‘[t]he elements of

a common-law or statutory cause of action for vexatious

litigation are identical’’). Because the plaintiff in this

case alleged both common-law and statutory vexatious

App. 179, 198 n.12, 291 A.3d 117 (Restatement ‘‘is nonbinding secondary

authority’’), cert. denied, 347 Conn. 901, 296 A.3d 840 (2023); Matter of

Featherfall Restoration, LLC, 261 Md. App. 105, 137–38, 311 A.3d 437

(Restatement ‘‘is merely a secondary source providing a survey of trends

in common law on a national scale’’), cert. granted, 487 Md. 264, 317 A.3d

913 (2024); Gerling Konzern Allgemeine Versicherungs AG v. Lawson, 472

Mich. 44, 57, 693 N.W.2d 149 (2005) (‘‘the duty of this [c]ourt is to construe

the language of Michigan’s statutes before turning to secondary sources

such as the Restatements’’).

Second, the question of whether Connecticut has adopted § 674 of the

Restatement (Second) of Torts was never raised by any party, before either

the trial court or this court. See Blumberg Associates Worldwide, Inc. v.

Brown & Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014)

(‘‘[o]ur case law and rules of practice generally limit [an appellate] court’s

review to issues that are distinctly raised at trial’’ (internal quotation marks

omitted)). Although this court ordered the parties to file simultaneous supplemental briefs following oral argument in this appeal, we likewise did not

raise that issue. While the plaintiff does cite to § 674 in one paragraph of

her supplemental brief, she does not contend that Connecticut has adopted

that Restatement provision. Perhaps most importantly, the defendant in this

case had no notice of that issue and was never provided an opportunity to

be heard thereon, in contravention of the mandate of our Supreme Court

in Blumberg Associates Worldwide, Inc. See id., 128. Respectfully, I disagree

with the majority that an isolated reference to § 674 in one paragraph of

the plaintiff’s supplemental brief before this court—to which the defendant

had no opportunity to reply—properly ‘‘put the defendant on notice’’ that the

issue of whether Connecticut follows § 674 was being raised in this appeal.

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litigation, which actions are largely identical, I begin

with the question of whether § 52-568 permits a party to

maintain such an action on the basis of general denials

pleaded by a defendant in its answer to a complaint.

1

Statutory Vexatious Litigation

Whether the legislature intended § 52-568 to encompass a defendant’s general denials to paragraphs of a

plaintiff’s complaint in a prior action presents a question

of statutory interpretation, over which our review is

plenary. See, e.g., 777 Residential, LLC v. Metropolitan

District Commission, 336 Conn. 819, 827, 251 A.3d 56

(2020). ‘‘When construing a statute, [o]ur fundamental

objective is to ascertain and give effect to the apparent

intent of the legislature. . . . In other words, we seek

to determine, in a reasoned manner, the meaning of the

statutory language as applied to the facts of [the] case

. . . . In seeking to determine that meaning, General

Statutes § 1-2z directs us first to consider the text of

the statute itself and its relationship to other statutes.

If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results,

extratextual evidence of the meaning of the statute shall

not be considered. . . . When a statute is not plain and

unambiguous, we also look for interpretive guidance

to the legislative history and circumstances surrounding

its enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and [common-law] principles governing the same general subject matter . . . .’’ (Internal quotation marks

omitted.) Vitti v. Milford, 336 Conn. 654, 660, 249 A.3d

726 (2020).

Section 52-568 provides: ‘‘Any person who commences and prosecutes any civil action or complaint

against another, in his own name or the name of others,

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or asserts a defense to any civil action or complaint

commenced and prosecuted by another (1) without

probable cause, shall pay such other person double

damages, or (2) without probable cause, and with a

malicious intent unjustly to vex and trouble such other

person, shall pay him treble damages.’’ By its plain

language, that statute applies to two classes of persons—those who commence and prosecute a civil

action, and those who assert a defense thereto. The

dispute in this case concerns the latter class.

Section 52-568 does not define the term ‘‘defense’’

and provides little clarity as to precisely what constitutes the assertion of a defense in a civil action. Broadly

speaking, the term ‘‘defense’’ plausibly may be read

to include both general denials and special defenses

affirmatively pleaded by a defendant. See, e.g., JPMorgan Chase Bank, National Assn. v. Malick, 347 Conn.

155, 169, 296 A.3d 157 (2023) (noting that Black’s Law

Dictionary ‘‘defines ‘defense’ as ‘[a] defendant’s stated

reason why the plaintiff or prosecutor has no valid case

. . . a defendant’s answer, denial, or plea’ ’’).

At the same time, General Statutes § 1-1 (a) requires

us to construe statutory language in light of any peculiar

or technical meaning it possesses in the law.7 In this

regard, I note that the amendment that added the phrase

‘‘asserts a defense’’ to § 52-568 was enacted as part of

the Tort Reform Act of 1986. See Public Acts 1986, No.

86-338, § 9 (P.A. 86-338). In ascertaining the apparent

intent of the legislature in adding that language as part

of its comprehensive tort reform, we must presume that

the legislature was familiar with civil practice in this

state and the fact that general denials are commonplace,

7 General Statutes § 1-1 (a) provides: ‘‘In the construction of the statutes,

words and phrases shall be construed according to the commonly approved

usage of the language; and technical words and phrases, and such as have

acquired a peculiar and appropriate meaning in the law, shall be construed

and understood accordingly.’’

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consistent with our common law and rules of practice.8

See, e.g., Daley v. Kashmanian, 344 Conn. 464, 485,

280 A.3d 68 (2022) (‘‘we presume that the legislature is

aware of the common law on a particular subject’’);

State v. Miranda, 260 Conn. 93, 131–32, 794 A.2d 506

(noting ‘‘the presumption that the legislature is aware

of the existence of the rules of practice . . . and

intended to create a consistent body of law’’ (internal

quotation marks omitted)), cert. denied, 537 U.S. 902,

123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). The legislature

nevertheless did not include the term ‘‘denial’’ in

enacting or amending § 52-568. ‘‘[I]t is a well settled

principle of statutory construction that the legislature

knows how to convey its intent expressly . . . .’’ (Citations omitted.) Scholastic Book Clubs, Inc. v. Commissioner of Revenue Services, 304 Conn. 204, 219, 38 A.3d

1183, cert. denied, 568 U.S. 940, 133 S. Ct. 425, 184 L. Ed.

2d 255 (2012). Had the legislature intended to include

general denials within the ambit of § 52-568, it could

have defined the term ‘‘defense.’’ Alternatively, the legislature simply could have added two words to the statute, so as to read ‘‘[a]ny person who . . . asserts a

denial or defense to any civil action or complaint commenced and prosecuted by another . . . .’’ The legislature here did neither. See Branford v. Santa Barbara,

294 Conn. 803, 813, 988 A.2d 221 (2010) (‘‘[w]e are bound

to interpret legislative intent by referring to what the

legislative text contains, not by what it might have contained’’ (internal quotation marks omitted)).

I am also mindful that ‘‘[l]egal terms . . . are to be

presumed to be used in their legal sense. . . . In ascertaining legislative intent [r]ather than using terms

8 As our Supreme Court explained, ‘‘[i]t has long been understood that

Practice Book provisions are not intended to enlarge or abrogate substantive

rights. . . . [T]his court has interpreted provisions of the Practice Book

through the lens of the common law.’’ (Citations omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 44, 970 A.2d 656, cert.

denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York

Times Co., 558 U.S. 991, 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009).

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in their everyday sense, [t]he law uses familiar legal

expressions in their familiar legal sense.’’ (Emphasis

in original; internal quotation marks omitted.) Rutter

v. Janis, 334 Conn. 722, 730–31, 224 A.3d 525 (2020).

On multiple occasions, our Supreme Court has distinguished denials from defenses and counterclaims

asserted by a party in response to a complaint. See,

e.g., Electrical Contractors, Inc. v. Ins. Co. of the State

of Pennsylvania, 314 Conn. 749, 760, 104 A.3d 713

(2014) (explaining that General Statutes § 49-42 (a)

‘‘permits the court to award attorney’s fees if it appears

that any claim, denial, or defense is without substantial

basis in fact or law’’ (emphasis added)); Nizzardo v.

State Traffic Commission, 259 Conn. 131, 162, 788 A.2d

1158 (2002) (‘‘[t]he word ‘pleading’ is defined as ‘[a]

formal document in which a party to a legal proceeding

. . . sets forth or responds to allegations, claims, denials, or defenses’ ’’ (emphasis altered)).

I respectfully submit that the most familiar legal sense

of the phrase ‘‘asserts a defense,’’ as used by legal practitioners in this state in the context of responding to

a complaint, refers to defenses that are affirmatively

pleaded, rather than general denials set forth in a defendant’s answer. In my years in practice and on the bench,

not once have I heard an attorney state that they were

‘‘asserting a denial’’ to the allegations of a complaint—

they simply ‘‘denied’’ those allegations. By contrast,

attorneys routinely ‘‘assert’’ special defenses and counterclaims—that vernacular is commonplace. See, e.g.,

Dorfman v. Smith, supra, 342 Conn. 587 (noting that

defendant, in answering complaint, ‘‘denied’’ certain

allegations and ‘‘also asserted a special defense’’); Assn.

Resources, Inc. v. Wall, 298 Conn. 145, 157, 2 A.3d 873

(2010) (‘‘[t]he defendant responded by filing an answer

and asserting numerous special defenses’’); Naples v.

Keystone Building & Development Corp., 295 Conn.

214, 220, 990 A.2d 326 (2010) (‘‘[t]he defendants filed

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an answer denying the plaintiffs’ allegations, as well

as special defenses asserting that the plaintiffs’ claims

were barred’’); Liberty Mutual Ins. Co. v. Lone Star

Industries, Inc., 290 Conn. 767, 778, 967 A.2d 1 (2009)

(defendant ‘‘filed an answer asserting numerous special

defenses’’ and counterclaims); Travelers Ins. Co. v.

Namerow, 261 Conn. 784, 788, 807 A.2d 467 (2002) (‘‘In

response [to the complaint], the plaintiff filed an answer

denying each of the defendants’ claims. The plaintiff

also filed thirteen special defenses asserting, inter alia,

that the policy did not cover the defendants’ loss

because the defendants either expected or intended the

loss.’’); Wallerstein v. Stew Leonard’s Dairy, 258 Conn.

299, 301, 780 A.2d 916 (2001) (‘‘[t]he defendant denied

liability, asserting no special defenses’’); Connecticut

National Bank v. Giacomi, 233 Conn. 304, 314, 659 A.2d

1166 (1995) (defendants ‘‘answered [the] complaint by

denying liability and asserting identical special defenses

and counterclaims’’).

In addition, I am sensitive to our obligation to ‘‘construe a statute as a whole . . . .’’ (Emphasis in original;

internal quotation marks omitted.) Thomas v. Dept. of

Developmental Services, 297 Conn. 391, 403–404, 999

A.2d 682 (2010); see also Nizzardo v. State Traffic Commission, supra, 259 Conn. 155 (courts engaging in statutory interpretation must be ‘‘faithful to the language of

the act as a whole’’). Significantly, § 52-568 is a punitive

statute that exposes the specified classes of persons to

both double and treble damages. See Ames v. Commissioner of Motor Vehicles, 267 Conn. 524, 536, 839 A.2d

1250 (2004) (‘‘[a]n award of multiple damages . . . is

an extraordinary remedy’’); Westport Taxi Service, Inc.

v. Westport Transit District, 235 Conn. 1, 41 n.44, 664

A.2d 719 (1995) (‘‘[t]reble damages are punitive damages’’); see also Kearney & Trecker Corp. v. Cincinnati

Milacron, Inc., 562 F.2d 365, 373 (6th Cir. 1977)

(describing treble damages as ‘‘extreme’’ sanction). In

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light of the gravity of those sanctions, I believe it is

plausible that the legislature, in adding the phrase

‘‘asserts a defense to any civil action or complaint’’ to

§ 52-568, was referring to defenses that must be affirmatively pleaded and counterclaims, rather than general

denials pleaded by a defendant in its answer.

Under our rules of statutory construction, ambiguity

arises whenever statutory language is subject to more

than one plausible interpretation. See, e.g., Redding v.

Georgetown Land Development Co., LLC, 337 Conn.

75, 84 n.9, 251 A.3d 980 (2020) (‘‘[o]ur case law is clear

that ambiguity exists only if the statutory language at

issue is susceptible to more than one plausible interpretation’’ (internal quotation marks omitted)); State v.

Pond, 315 Conn. 451, 468, 108 A.3d 1083 (2015)

(‘‘[b]ecause the statutory language is subject to multiple, plausible interpretations, and it does not expressly

address or resolve the certified question, [the language]

is facially ambiguous’’); Commissioner of Correction

v. Freedom of Information Commission, 307 Conn. 53,

68, 52 A.3d 636 (2012) (‘‘[b]ecause we believe that both

of these interpretations are plausible, we conclude that

the language [in question] is ambiguous’’). In this case,

I would conclude that the phrase ‘‘asserts a defense’’

is subject to more than one plausible interpretation. For

that reason, § 52-568 is ambiguous, warranting resort

to extratextual materials. See, e.g., State v. Fernando

A., 294 Conn. 1, 17, 981 A.2d 427 (2009).

a

Legislative History

To resolve statutory ambiguity, it is appropriate to

consider the circumstances surrounding the enactment

of a statute or statutory amendment. See, e.g., State v.

Pond, supra, 315 Conn. 471. Public Act 86-338, § 9,

which amended § 52-568 to add the ‘‘asserts a defense’’

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language in question, was enacted as part of a comprehensive tort reform in 1986. As our Supreme Court

has observed, ‘‘[t]he Tort Reform Act was drafted in

response to rapidly rising insurance rates, which, some

believed, would be curtailed if tort liability could be

limited and systematized. . . . As finally enacted, the

act represents a complex web of interdependent concessions and bargains struck by hostile interest groups

and individuals of opposing philosophical positions.’’

(Footnote omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185, 592 A.2d 912 (1991);

see also White v. Byelas Irrevocable Trust, 64 Conn.

App. 506, 510–11, 780 A.2d 989 (2001) (‘‘[i]n 1986, by

enacting [P.A. 86-338] . . . the General Assembly

replaced the common-law rule of joint and several liability with a system of apportioned liability that holds

each defendant liable for only his or her proportionate

share of damages’’ (internal quotation marks omitted)).

The legislative history of P.A. 86-338 reflects that the

amendment of § 52-568 was an ancillary part of that

reform that garnered relatively little discussion among

legislators. Proponents of the changes to § 52-568

emphasized that ‘‘the number of suits, both serious and

frivolous, [has] increased over the last several years.’’

Conn. Joint Standing Committee Hearings, Judiciary,

Pt. 1, 1986 Sess., p. 312, statement of Harry P. Harris

on behalf of Southwestern Area Commerce & Industry

Association; see also id., p. 315, statement of Kathleen A.

Leary, Vice President of the Business/Industry Council

(noting that ‘‘[a]lso on the rise is the number of frivolous

lawsuits being filed’’).

The primary change to § 52-568 as a result of P.A.

86-338 was the imposition of an additional penalty. The

statute previously provided for an award of treble damages for any person who commenced a civil action (1)

without probable cause and (2) with a malicious intent.

See General Statutes (Rev. to 1985) § 52-568. Public

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Act 86-338 retained that penalty but added a provision

imposing double damages on any person who commences a civil action without probable cause, irrespective of the question of malice. As Representative William L. Wollenberg, Chairman of the Judiciary

Committee, explained when introducing the bill, ‘‘[Public Act 86-338] sets out . . . two standards, as opposed

to what we have in [§ 52-568] today. If the action is

brought without probable cause [there are] double damages, if the action is brought without probable cause

and with malicious intent . . . there are treble damages. [That latter standard] is the law today. [Public

Act 86-338] adds the double damages.’’ 29 H.R. Proc.,

Pt. 16, 1986 Sess., p. 5739; see also 29 H.R. Proc., Pt.

22, 1986 Sess., pp. 8105–106, remarks of Representative

Michael D. Rybak (noting that lack of probable cause

is all that is required for award of double damages and

remarking, ‘‘God help the poor lawyer who doesn’t read

that section’’ of P.A. 86-338); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 7, 1986 Sess., p. 2220

(statement from Connecticut Association of Realtors,

Inc., expressing support for ‘‘the stronger penalties provided for filing frivolous or vexatious suits’’); id., p. 2340

(letter from Connecticut Society of Architects expressing support for ‘‘increasing sanctions against any person

who commences and prosecutes any civil action or

complaint against another without ‘probable cause’ ’’);

id., p. 2377, statement of Raphael L. Podolsky, Acting

Director of the Center for Advocacy and Research, Inc.

(opposing amendment because P.A. 86-338 ‘‘imposes

double damages for a suit brought without probable

cause, even though the suit is brought in good faith’’

and noting that ‘‘one person’s lack of probable cause

is another person’s creative legal theory’’ (emphasis

omitted)).

Although the legislative history contains a handful of

references to parties that vexatiously defend a civil

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action, none pertains to the answering of a complaint.

For example, at the hearing before the Judiciary Committee, Robert Hunter, President of the National Insurance Consumer Organization, testified that there should

be penalties for both frivolous lawsuits and frivolous

defenses, noting that ‘‘[l]awyers are known to paper and

run the clock.’’ Id., p. 2003. At that point, Representative

Christopher Shays asked him to explain what he meant

by a frivolous defense, to which Hunter replied: ‘‘Frivolous defense is, for example, I was told by an attorney

that he took fifty depositions in a case. . . . He said

many of those depositions were almost the identical

evidence. He was running his clock. We know that attorneys do that, don’t we? Including defense attorneys? But

to deal with only one side of the equation, to unbalance

a system that has grown over 200 years, I think is

unfair.’’ Id.; see also Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 6, 1986 Sess., p. 1893, testimony

of Attorney Ralph Elliot, President of the Connecticut

Bar Association (opining that there should be penalty

for defendants who say, ‘‘I’m going to drag you through

three or four years of litigation and then on the courthouse steps, I’ll settle with you’’); id., p. 1875, testimony

of Henry J. Naruk, Vice President and Associate General

Counsel of Travelers Insurance Company (stating that

‘‘[w]e have brought a number of sanctions against people who have brought frivolous lawsuits, who have

extended [lawsuits] and failed to comply with discovery

orders’’).

The legislative history thus suggests that the General

Assembly, in enacting P.A. 86-338, was animated by

some of the same considerations that underlie § 674

of the Restatement (Second) of Torts, which imposes

liability on parties that wrongfully prolong a civil proceeding without probable cause.9 See 3 Restatement

9 Section 674 of the Restatement (Second) of Torts provides: ‘‘One who

takes an active part in the initiation, continuation or procurement of civil

proceedings against another is subject to liability to the other for wrongful

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(Second), Torts § 674, p. 452 (1977). Yet there is no

indication in the Restatement (Second) that § 674 contemplates the scenario presented here, in which a vexatious litigation action was brought against a defendant

for pleading general denials in its answer. As the

Supreme Court of Kansas has observed, ‘‘[n]one of the

examples in the comments to § 674 involve liability

attaching to one who defends in an action without

asserting a counterclaim or cross-claim.’’ (Emphasis

added.) Wilkinson v. Shoney’s, Inc., 269 Kan. 194, 206,

4 P.3d 1149 (2000). In the more than 1100 pages of

legislative history of P.A. 86-338, there similarly is no

mention whatsoever of a defendant’s answer to a complaint or a defendant’s denial of an allegation set forth

therein. The legislative history thus is silent on the specific issue presented in this appeal, which is whether

the legislature intended § 52-568 to encompass general

denials pleaded by a defendant in response to a civil

complaint.10

civil proceedings if (a) he acts without probable cause, and primarily for a

purpose other than that of securing the proper adjudication of the claim in

which the proceedings are based, and (b) except when they are ex parte,

the proceedings have terminated in favor of the person against whom they

are brought.’’ (Emphasis added.) 3 Restatement (Second), Torts § 674, p.

452 (1977). To be clear, I agree with the proposition that an action for

vexatious litigation should lie against a party that purposely engages in

conduct intended to needlessly foster protracted litigation without probable

cause. I disagree that a defendant’s filing of a general denial to a paragraph

of a plaintiff’s complaint should qualify as conduct exposing the defendant

to an action for vexatious litigation. 10 The legislative history also suggests that the wording of P.A. 86-338 was

modeled on a similar Wisconsin statute. In a February 26, 1986 letter to the

Judiciary Committee, Judy A. C. Edwards, Executive Vice President of the

Connecticut Society of Architects, opined that ‘‘courts are being used in a

way which generates unnecessary litigation and burdens innocent parties

with proving that they should not have been sued in the first place.’’ Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 1, 1986 Sess., p. 295. She

continued: ‘‘The Wisconsin statute, which is enclosed, follows an example

of legislation encouraging courts to award costs and attorney[’s] fees to the

successful party when an action or a defense is found to have been brought

frivolously.’’ Id. A copy of that statute—Wis. Stat. § 814.025 (1977)—was

admitted into the record of the Judiciary Committee’s hearing. Like § 52-

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b

Canons of Construction

I therefore turn my attention to certain well established canons of construction to divine the proper

meaning of § 52-568. See Spadoro v. United States Customs & Border Protection, 978 F.3d 34, 47 (2d Cir.

2020) (‘‘we rely upon canons of construction only if the

language of the statute is ambiguous’’); Stratford v.

Jacobelli, 317 Conn. 863, 875, 120 A.3d 500 (2015) (canons of construction are utilized to discern legislative

intent when statutory language ‘‘is not clear and unambiguous’’).

Section 52-568 patently is a punitive statute that exposes parties, and potentially legal counsel, to double

and treble damages. See, e.g., Texas Industries, Inc. v.

Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S. Ct.

2061, 68 L. Ed. 2d 500 (1981) (‘‘[t]he very idea of treble

damages reveals an intent to punish past, and to deter

future, unlawful conduct’’); Westport Taxi Service, Inc.

v. Westport Transit District, supra, 235 Conn. 41 n.44

(‘‘[t]reble damages are punitive damages’’); Osborne v.

Warren, 44 Conn. 357, 359 (1877) (statutory award of

double damages reflects legislative intent ‘‘to punish’’);

see also Allstate New Jersey Ins. Co. v. Lajara, 222 N.J.

129, 144–45, 117 A.3d 1221 (2015) (‘‘[t]reble damages

are intended to punish, and only partly to compensate,

and therefore have the classic features of punitive damages’’). The legislative history of § 52-568 likewise indicates that it is intended to penalize the persons specified

568, Wis. Stat. § 814.025 distinguishes two classes of litigants subject thereto

and provides in relevant part: ‘‘If an action or special proceeding commenced

or continued by a plaintiff or a counterclaim, defense, or cross complaint

commenced, used or continued by a defendant is found, at any time during

the proceedings or upon judgment, to be frivolous by the court, the court

shall award to the successful party costs . . . and reasonable attorney fees

. . . .’’ Id., p. 298. That Wisconsin statute was repealed in 2005.

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therein. See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1986 Sess., p. 217, statement of

Dr. Leonard Kemler (urging legislature to amend § 52-

568 to ‘‘create sanctions for filing frivolous suits’’);

Conn. Joint Standing Committee Hearings, Judiciary, Pt.

6, 1986 Sess., p. 1908, statement of Attorney Theodore

Racklin (noting that § 52-568, as amended by P.A. 86-

338, ‘‘provides penalties for bringing an action without

probable cause’’); Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 7, 1986 Sess., p. 2220 (statement

from Connecticut Association of Realtors, Inc., expressing support for ‘‘the stronger penalties provided for

filing frivolous or vexatious suits’’ in § 52-568); id., p.

2340 (letter from Judy A. C. Edwards, Executive Vice

President of the Connecticut Society of Architects, urging legislature to increase ‘‘sanctions against any person

who commences and prosecutes any civil action or

complaint against another without ‘probable cause’ ’’).

Because § 52-568 is punitive in nature, ‘‘we are

required to construe it with reasonable strictness in

determining whether the act complained of comes

within the description in the statute of the acts for which

the person in fault is made liable.’’ (Internal quotation

marks omitted.) Branford v. Santa Barbara, supra, 294

Conn. 814; see also State v. Ledbetter, 240 Conn. 317,

330, 692 A.2d 713 (1997) (‘‘[b]ecause it is a punitive

statute, the generally recognized rules of statutory construction normally . . . require the strictest of interpretations’’); Commissioner of Administrative Services v. Gerace, 40 Conn. App. 829, 834, 673 A.2d 1172

(1996) (‘‘the punitive nature of the action against the

defendant requires a strict interpretation of the statute’’

(footnote omitted)), appeal dismissed, 239 Conn. 791,

686 A.2d 993 (1997); see also 3 S. Singer, Sutherland,

Statutes and Statutory Construction (8th Ed. 2020)

§ 59.3, p. 181 (same). The precedent of our Supreme

Court further instructs that, when a punitive statute is

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ambiguous, ‘‘we must interpret it in favor of the party

who would be subject to the punitive consequences of

the statute rather than in favor of the party who would

benefit from those consequences.’’ Branford v. Santa

Barbara, supra, 814–15. Those maxims militate against

a conclusion that the legislature intended § 52-568 to

encompass a defendant’s general denials to the allegations of a complaint.

Furthermore, it is well established that ‘‘[i]nterpreting

a statute . . . to change radically existing law is appropriate only if the language of the legislature plainly

and unambiguously reflects such an intent.’’ (Internal

quotation marks omitted.) Adesokan v. Bloomfield, 347

Conn. 416, 444, 297 A.3d 983 (2023). The plaintiff has

provided this court with no Connecticut authority, nor

has my research uncovered any, in which a party to a

civil action in this state has been found to violate § 52-

568 due to the filing of general denials in an answer. I

respectfully submit that to expand that statutory cause

of action to encompass such general denials constitutes

a radical change in our law.

I also am guided by the precept that this court is

obligated to ‘‘construe a statute as written. . . . Courts

may not by construction supply omissions . . . . The

intent of the legislature . . . is to be found not in what

the legislature meant to say, but in the meaning of what

it did say. . . . It is axiomatic that the court itself cannot rewrite a statute. . . . That is a function of the

legislature.’’ (Internal quotation marks omitted.) Doe v.

Norwich Roman Catholic Diocesan Corp., 279 Conn.

207, 216, 901 A.2d 673 (2006); see also Lucarelli v. State,

16 Conn. App. 65, 70, 546 A.2d 940 (1988) (‘‘[c]ourts

must interpret statutes as they are written . . . and

cannot, by judicial construction, read into them provisions which are not clearly stated’’ (citation omitted)).

To the extent that the plaintiff asks this court to expand

the statutory cause of action for vexatious litigation to

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encompass a defendant’s general denials to a complaint—which, at its essence, involves a judgment call

on a matter of public policy—that request properly is

the prerogative of our General Assembly. See Commissioner of Environmental Protection v. State Five

Industrial Park, Inc., 304 Conn. 128, 160 n.5, 37 A.3d

724 (2012) (it is ‘‘the prerogative of the legislature,

rather than the courts, to amend the statutory scheme’’);

State v. Reynolds, 264 Conn. 1, 79, 836 A.2d 224 (2003)

(Connecticut courts cannot exceed ‘‘[their] constitutional limitations by infringing on the prerogative of the

legislature to set public policy through its statutory

enactments’’), cert. denied, 541 U.S. 908, 124 S. Ct. 1614,

158 L. Ed. 2d 254 (2004); State v. Whiteman, 204 Conn.

98, 103, 526 A.2d 869 (1987) (‘‘[i]n areas where the

legislature has spoken . . . the primary responsibility

for formulating public policy must remain with the legislature’’).

c

In light of the foregoing, I would conclude that the

plaintiff has not satisfied her burden of demonstrating,

as a matter of law, that § 52-568 encompasses a defendant’s general denials to a plaintiff’s complaint in a

prior action. For that reason, I believe that summary

judgment was properly rendered in favor of the defendant with respect thereto.

2

Common-Law Vexatious Litigation

The question of whether a common-law vexatious

litigation action may be predicated on a defendant’s

general denials to a complaint in a prior action is one

of first impression in this state.11 Appellate review of

11 In her supplemental brief to this court, the plaintiff posits that, in Dorfman v. Smith, supra, 342 Conn. 582, our Supreme Court ‘‘indicated that a

vexatious litigation claim can be premised on [the defendant’s] answers’’

in the prior action between the parties. I disagree. The statements referenced

by the plaintiff arose in the context of the court’s discussion of whether

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that question of law is plenary. See State v. Campbell,

328 Conn. 444, 477 n.11, 180 A.3d 882 (2018).

a

In urging this court to expand the common-law action

for vexatious litigation, the plaintiff relies in part on

§ 674 of the Restatement (Second) of Torts, which

imposes tort liability on a party who ‘‘takes an active

part in the initiation, continuation or procurement of

civil proceedings’’ without probable cause. See 3

Restatement (Second), supra, § 674, p. 452; see also

footnote 9 of this opinion. There is no doubt that a

party can improperly continue a civil proceeding, such

as by taking numerous redundant depositions or filing

frivolous motions, thereby needlessly prolonging litigation for years.12 In my view, such conduct is what is

the trial court properly had applied the litigation privilege to a claim for

breach of the implied covenant of good faith and fair dealing. See id., 596–612.

During that discussion, the court stated that, ‘‘even if the allegations in the

complaint are sufficient to support a claim for vexatious litigation or abuse

of process but such claims are not raised, these allegations do not remove

immunity from a claim that falls within the scope of the litigation privilege.’’

(Emphasis added.) Id., 597. The court later noted: ‘‘[P]arties and their counsel

who abuse the process by bringing unfounded actions for personal motives

are subject to civil liability for vexatious suit or abuse of process. . . .

Importantly, in the present case, upon a prior action terminating in her

favor, the plaintiff could have brought a lawsuit for vexatious litigation.’’

(Citation omitted; internal quotation marks omitted.) Id., 612. At the same

time, the court emphasized that ‘‘[t]he fact that the plaintiff alleged facts

that may have been sufficient to support a claim for vexatious litigation

does not prevent the litigation privilege from applying to the claim alleged.’’

(Emphasis added.) Id., 607.

‘‘It is axiomatic that an appellate decision stands only for those issues

presented to, and considered by, the court in that particular appeal.’’ Dept.

of Public Safety v. Freedom of Information Commission, 103 Conn. App.

571, 582 n.10, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007).

The issue of whether, as a matter of law, a statutory or common-law action

for vexatious litigation may be predicated on a defendant’s general denials

to a complaint in a prior action was neither presented to nor decided by

our Supreme Court in Dorfman v. Smith, supra, 342 Conn. 582. The plaintiff’s

reliance on that case, therefore, is misplaced. 12 As the Supreme Court of California noted one-half century ago, ‘‘[t]he

judicial process is adversely affected by a maliciously prosecuted cause not

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contemplated by § 674 when it refers to the improper

‘‘continuation’’ of a civil proceeding. At the same time,

neither § 674 nor any of the commentary to that section

pertains to a defendant’s conduct in filing an answer to

a civil complaint. For that reason, I respectfully disagree

with the majority that § 674 applies to a defendant’s

general denials to a complaint in a prior action. Instead,

I would join the overwhelming majority of jurisdictions

that have rejected similar claims.

Numerous courts have been confronted with claims

alleging ‘‘malicious defense’’ on the part of a defendant.

As the United States District Court for the District of

Delaware observed: ‘‘A claim for malicious defense is

the mirror image of a claim for malicious prosecution.

As its name implies, the claim arises when a defendant

adopts unfair or unreasonable litigation tactics in an

effort to prejudice or harass an opponent.’’ Rowlands

v. Phico Ins. Co., United States District Court, Docket

Nos. Civ.A.00-477-(GMS) and Civ.A.00-485-(GMS) (D.

Del. July 27, 2000). For example, in Wilkinson v.

Shoney’s, Inc., supra, 269 Kan. 194, the plaintiff sought

to prevail on a malicious defense claim, relying specifically ‘‘on the ‘continuation or procurement of civil proceedings against another’ wording of Restatement (Second) of Torts § 674 . . . .’’ Id., 204. In rejecting that

claim, the court noted that ‘‘[n]one of the examples in

the comments to § 674 involve liability attaching to one

who defends in an action without asserting a counterclaim or cross-claim. Some authorities have recognized

an action for malicious prosecution based on the filing

of a cross-complaint or counterclaim by [the] defendant

on the theory that such cross-pleadings institute a separate and independent cause of action and potentially

only by the clogging of already crowded dockets, but by the unscrupulous

use of the courts by individuals . . . as instruments with which to maliciously injure their fellow men.’’ (Internal quotation marks omitted.) Bertero

v. National General Corp., 13 Cal. 3d 43, 51, 529 P.2d 608, 118 Cal. Rptr.

184 (1974) (en banc).

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subject the cross-defendant to the same potential liability and injury as any other claim brought in the first

instance. . . . Most courts, however, have found that

a purely defensive action provides an insufficient basis

for liability.’’ (Citation omitted.) Id., 206–207. The court

further emphasized that other remedies were available

to the plaintiff, including requests for admission, courtordered sanctions, and monetary penalties for defendants ‘‘who submit a false statement or representation

knowing it to be false.’’ Id., 205. Given the existence of

those remedies, the court concluded that ‘‘there is no

public policy justification to create a cause of action

for malicious defense . . . .’’ Id. Moreover, the court

emphasized that, ‘‘[i]f such [an action] is deemed desirable or needed, action by the legislature is required.’’

Id., 208.

California courts repeatedly have resisted attempts to

impose liability on defendants who maliciously defend

a civil action. See Bertero v. National General Corp.,

13 Cal. 3d 43, 52, 529 P.2d 608, 118 Cal. Rptr. 184 (1974)

(en banc) (declining to recognize tort of malicious

defense and reaffirming ‘‘the right of a defendant, involuntarily haled into court, to conduct a vigorous

defense’’); California Physicians’ Service v. Superior

Court, 9 Cal. App. 4th 1321, 1325, 12 Cal. Rptr. 2d 95

(1992) (‘‘[b]roadly but nevertheless accurately speaking, there is no tort of ‘malicious defense’ ’’); DuBarry

International, Inc. v. Southwest Forest Industries, Inc.,

231 Cal. App. 3d 552, 575, 282 Cal. Rptr. 181 (1991)

(opining, in section of opinion titled ‘‘A Denial of an

Agreement in a Pleading Can Not Serve as a Basis for

Tort Liability,’’ that ‘‘to permit a plaintiff to impose

tort liability upon a defendant for positions asserted in

pleadings not only imposes an unfair burden on the

conduct of a defense but conflicts with the well

accepted rule which permits the assertion of two or

more inconsistent pleas’’).

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As the Supreme Court of California noted more than

one century ago regarding liability of a defendant who

‘‘makes a groundless defense’’ in a prior action, proponents of a malicious defense action fail ‘‘to distinguish

between the position of the parties, plaintiff and defendant, in an action at law. The plaintiff sets the law in

motion; if he does so groundlessly and maliciously, he is

the cause of the defendant’s damage. But the defendant

stands only on his legal rights—the plaintiff having

taken his case to court, the defendant has the privilege

of calling upon him to prove it to the satisfaction of

the judge or jury, and he is guilty of no wrong in exercising this privilege.’’ (Internal quotation marks omitted.)

Eastin v. Bank of Stockton, 66 Cal. 123, 127, 4 P.

1106 (1884).

The high courts of other states agree with that proposition. As the Supreme Court of Illinois explained: ‘‘The

defendant had the right to resist [the plaintiffs’] claim

and if [the] plaintiffs wished to establish their right it

was necessary for them to resort to litigation. If, in the

process of the procedure necessary to the establishment of [the] plaintiffs’ claim, they were compelled to

employ the services of lawyers and incur other

expenses it was but an incident attached to the asserting

and enforcement of their right . . . . If the wrongful

conduct of a defendant causing the plaintiff to sue him

would give rise to an independent tort and a separate

cause of action, there would be no end to the litigation,

for immediately upon the entry of judgment the plaintiff

would start another action against the defendant for

his attorney fees and expenses incurred in obtaining

the preceding judgment. . . . If the plaintiff is successful in the suit, the probability is that the conduct of the

defendant causing the suit was wrongful. . . . Under

our jurisprudence the defendant may present any

defense to such an action that he may have or that he

may deem expedient, and in so doing he will not be

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subjecting himself to a second suit by the plaintiff based

on the wrongful conduct of the defendant in causing

the plaintiff to sue him or in defending the action. The

rule is the same even though the wrongful conduct

of the defendant is willful, intentional, malicious or

fraudulent.’’ (Citations omitted.) Ritter v. Ritter, 381

Ill. 549, 554–55, 46 N.E.2d 41 (1943); accord Pope v.

Pollock, 46 Ohio St. 367, 370, 21 N.E. 356 (1889) (‘‘[w]hen

the plaintiff sets the law in motion, he is the cause, if

it be done groundlessly and maliciously, of [the] defendant’s damage, and the defendant but stands upon his

legal rights when he calls upon the plaintiff to prove his

case to the satisfaction of judge and jury’’); cf. Photovest

Corp. v. Fotomat Corp., 606 F.2d 704, 729 (7th Cir. 1979)

(‘‘Nothing in the case law suggests that liability may

stem from the [d]efense of a lawsuit or from the decision

to defend rather than settle. Such a rule would infringe

basic rights in our system of jurisprudence.’’), cert.

denied, 445 U.S. 917, 100 S. Ct. 1278, 63 L. Ed. 2d 601

(1980).

Those cases are rooted in the recognition that an

action premised on a defendant’s conduct in a prior

action is fundamentally distinct from one premised on

the conduct of a plaintiff who initiates a judicial proceeding in the first instance. Actions for vexatious litigation and malicious prosecution are predicated on ‘‘the

right of an individual to be free from unjustifiable litigation [and the] wrongful initiation of civil suits.’’ (Internal

quotation marks omitted.) Bernhard-Thomas Building

Systems, LLC v. Dunican, supra, 286 Conn. 553–54; see

also W. Keeton et al., Prosser and Keeton on the Law

of Torts (5th Ed. 1984) § 119, p. 870 (tort of malicious

prosecution protects ‘‘[t]he interest in freedom from

unjustifiable litigation’’). As one judge keenly observed:

‘‘The malicious plaintiff in a civil action institutes proceedings without probable cause and with malice. . . .

Because the defendant is haled into court, all of the

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defendant’s resulting financial, emotional, and reputational injuries are attributable to the plaintiff’s malicious conduct. The malicious defendant, in contrast,

raises or continues an ungrounded and malicious

defense merely to resist the claim of a plaintiff already

before the court. Unlike the defendant targeted by a

malicious prosecution, the plaintiff who encounters

a malicious defense voluntarily entered the judicial

system and must be held to accept, to some degree,

the costs and risks of litigation. When this plaintiff ultimately prevails in the action, at best only a portion

of the plaintiff’s litigation costs and damages can be

attributed to the malicious defense. These differences

in the position of a plaintiff and a defendant with regard

to the institution of civil proceedings, the willingness

of the involvement in the litigation, and the amount of

damages attributable to the malicious conduct of the

opposing party, are appropriately recognized by the

existing discrepancy in remedies.’’ (Citation omitted;

emphasis added.) Aranson v. Schroeder, 140 N.H. 359,

372–73, 671 A.2d 1023 (1995) (Thayer, J., dissenting).

That precept has been applied to defendants who plead

general denials known to be untrue.13

13 See, e.g., Ritter v. Ritter, supra, 381 Ill. 555 (‘‘[a] defendant may present

any defense to such an action that he may have or that he may deem

expedient, and in so doing he will not be subjecting himself to a second

suit by the plaintiff . . . even though the wrongful conduct of the defendant

is willful, intentional, malicious or fraudulent’’); Baxter v. Brown, 83 Kan.

302, 304, 111 P. 430 (1910) (‘‘The question is this: A defendant is haled into

court and required to defend against claims set forth against him in a civil

action. Without asking any affirmative relief whatever, he simply files a

general denial and verifies it. Although there may be many things alleged

in the petition as true that he knows are true, and although he may know

that it will involve the plaintiff in considerable expense to prove and establish

the truth thereof, is he responsible for making such defense? . . . In this

state, and quite generally in other states, it has been held that damages for

malicious prosecution of a civil action as well as for a malicious criminal

charge may be recovered; expenses incurred and damage to business, and

even exemplary damages have been allowed in such cases. We have failed,

however, to find any authority for assessing damages for a malicious defense

of an action.’’).

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The Supreme Court of Hawaii similarly has rejected

malicious defense claims raised in the insurance

defense context. In Young v. Allstate Ins. Co., 119 Haw.

403, 410, 198 P.3d 666 (2008), the plaintiff brought an

action against the defendants, an insurance company

and its attorney, for malicious defense. The gravamen

of her claim was that the defendants ‘‘took an active

part in the initiation, continuation, or procurement of

the defense in [her] case against [the insurer’s] insured.

She alleged that the defendants (1) maliciously

defended the case and used the courts imprudently by

acting without reasonable or probable cause and by

acting with knowledge or notice that their positions

lacked merit and (2) acted primarily for a purpose other

than that of securing a proper adjudication of the claims

and defenses, such as to harass, annoy, or injure or to

cause an unnecessary delay or a needless increase in

litigation costs.’’14 Id., 411.

At the outset of its analysis, the Supreme Court of

Hawaii noted that, ‘‘[a]lthough the torts of abuse of

process and malicious prosecution are well established,

the malicious defense tort is unfamiliar, if known at

all.’’ (Internal quotation marks omitted.) Id., 416. The

court further stated: ‘‘This jurisdiction has not previously recognized a malicious defense claim, and we

decline to do so now. We do not believe that recognizing

the tort of malicious defense is necessary where (1)

the threat of subsequent litigation will have a chilling

effect on a party’s legitimate defenses, and (2) existing

rules and tort law compensate plaintiffs for the harm

that they suffer when defendants’ litigation tactics are

brought in bad faith.’’ Id. The court emphasized that,

‘‘by initiating the lawsuit, the plaintiff must be held to

14 In alleging that the defendants ‘‘took an active part in the initiation,

continuation, or procurement’’ of the defense at issue, the plaintiff’s complaint mirrored the relevant language of § 674 of the Restatement (Second)

of Torts.

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accept, to some degree, the costs and risks of litigation.’’

(Internal quotation marks omitted.) Id., 420. The court

also noted the existence of remedies already available

to a plaintiff, including the imposition of sanctions on

a malicious defendant and disciplinary proceedings pursuant to the Rules of Professional Conduct. See id.,

423–24; see also W. Barker et al., ‘‘Litigating About Litigation: Can Insurers Be Liable for Too Vigorously

Defending Their Insureds?,’’ 42 Tort Trial & Ins. Prac.

L.J. 827, 855 (2007) (‘‘The refusal to recognize a tort of

malicious defense does not deny that appeals or other

defensive activities are wrongful when conducted maliciously and in bad faith, solely for the purpose of delay.

. . . However, the proper remedy for this is the application of sanctions by the court in which frivolous, dilatory litigation occurs.’’ (Footnotes omitted; internal

quotation marks omitted.)). The court thus concluded

that ‘‘it is appropriate to join the majority of courts that

have addressed this issue and decided not to recognize

the tort of malicious defense’’; Young v. Allstate Ins.

Co., supra, 119 Haw. 419; and opined that, if such a

change in the law was warranted, it was ‘‘more appropriate for the legislature’’ to do so.15 Id., 427 n.23.

15 Like the present case, Young involved a defendant insurer that was not

the most sympathetic party. Compare Young v. Allstate Ins. Co., supra,

119 Haw. 407 (‘‘By dissuading claimants from seeking legal counsel, [the

defendant] was able to prey upon injured and unrepresented claimants’ trust

and lack of knowledge and to deny or settle claims for a fraction of their

value. . . . If a settlement offer were not accepted or the claimant hired

an attorney, [the defendant] would fully litigate virtually every claim, irrespective of its insured’s liability or the real physical harm and value of the

injuries suffered by the claimant. [The defendant] thereby sought to subject

claimants to unnecessary and oppressive litigation and expenses . . . .’’

(Footnote omitted.)), with Dorfman v. Smith, supra, 342 Conn. 588, 613

(noting that defendant’s corporate designee testified under oath that defendant ‘‘ ‘did not single out [the plaintiff] for special or unique treatment when

it conditioned [her] receipt of [underinsured motorist] benefits [on] the

provision of an affidavit of no excess insurance but was instead pursuing

conduct that [the defendant] routinely takes in its handling of claims from

other policyholders as well’ ’’ and that defendant ‘‘ ‘did not single out [the

plaintiff] for special or unique treatment when it responded falsely to [her]

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Courts that have declined to recognize the tort of

malicious defense16 also have emphasized the potential

for endless litigation. As the Supreme Court of Ohio

observed, ‘‘[i]f every suit may be retried on an allegation

of malice, the evil would be intolerable, and the malice

in each subsequent suit would be likely to be greater

than in the first; and that, if a defendant ought to have

damages upon a false claim, then the plaintiff ought

to have damages on a false plea, which would make

litigation interminable.’’ Pope v. Pollock, supra, 46 Ohio

St. 369; see also California Physicians’ Service v. Superior Court, supra, 9 Cal. App. 4th 1325 n.2 (noting danger

of endless litigation); Ritter v. Ritter, supra, 381 Ill. 555

(‘‘[i]f the wrongful conduct of a defendant . . . would

give rise to an independent tort and a separate cause

of action, there would be no end to the litigation, for

immediately upon the entry of judgment the plaintiff

would start another action against the defendant for

his attorney fees and expenses incurred in obtaining

the preceding judgment’’); Rappaport v. Rappaport, 44

Misc. 2d 523, 525, 254 N.Y.S.2d 174 (1964) (‘‘[t]he danger

of encouraging interminable litigation by [extending the

tort of malicious prosecution to defenses asserted by

a defendant in prior action] is also clear’’), aff’d, 24

App. Div. 2d 844, 263 N.Y.S.2d 442, appeal denied, 16

N.Y.2d 487, 213 N.E.2d 697, 266 N.Y.S.2d 1025 (1965).

In addition, multiple courts have declined to impose

liability on a defendant arising from its defense in a

discovery requests’ ’’). In upholding the judgment rendered in favor of the

defendant on the plaintiff’s claims of malicious defense, abuse of process,

and breach of an assumed duty of good faith and fair dealing, the Supreme

Court of Hawaii nonetheless recognized that the legal issues presented in

that case were larger than any one party. Cf. In re Purdue Pharma L.P.,

Docket No. 22-CV-4134 (CS), 2023 WL 5950707, *5 (S.D.N.Y. September 13,

2023) (‘‘[the court’s] role is to apply the law, and that sometimes means

that a sympathetic party is not entitled to relief’’). 16 The term ‘‘malicious defense’’ is something of a misnomer, since it

applies to the conduct of both defendants and plaintiffs in responding to

claims, counterclaims, cross claims, special defenses and the like.

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prior civil proceeding in the insurance context specifically. See, e.g.,Rowlands v. Phico Ins. Co., supra, United

States District Court, Docket Nos. Civ.A.00-477-(GMS)

and Civ.A.00-485-(GMS) (‘‘the courts which have

squarely addressed this issue in the insurance context

have all rejected the malicious defense claim or its

equivalent’’); Hostetter v. Hartford Ins. Co., Docket No.

85C-0628, 1992 WL 179423, *8 (Del. Super. July 13, 1992)

(declining ‘‘to recognize the existence of [the] tort [of

malicious defense] in the context of insurance claims’’),

overruled in part on other grounds by Connelly v. State

Farm Mutual Automobile Ins. Co., 135 A.3d 1271 (Del.

2016); Young v. Allstate Ins. Co., supra, 119 Haw. 426

(‘‘we decline to adopt the tort of malicious defense’’);

Kranzush v. Badger State Mutual Casualty Co., 103

Wis. 2d 56, 73, 307 N.W.2d 256 (1981) (declining to

‘‘declare the existence of a [malicious defense] cause

of action in favor of the claimant against the insurer’’);

W. Barker et al., supra, 42 Tort Trial & Ins. Prac. L.J.

854 (‘‘[t]he cases almost uniformly reject [the] plaintiffs’

attempts to impose liability based on allegedly frivolous

defenses, supposedly asserted only to delay an inevitable recovery’’).

As best I can tell, only one jurisdiction has adopted

the position urged by the plaintiff in the present case.17

In Aranson v. Schroeder, supra, 140 N.H. 363, the plaintiffs asked the Supreme Court of New Hampshire to

recognize a new cause of action for malicious defense,

contending that it ‘‘is essentially the mirror image of

§ 674 of the Restatement [Second] of Torts . . . .’’

(Internal quotation marks omitted.) A divided panel of

17 See, e.g., Young v. Allstate Ins. Co., supra, 119 Haw. 418 (‘‘only one

jurisdiction has recognized the tort of malicious defense’’); Iantosca v. Merrill Lynch Pierce Fenner & Smith, Inc., Docket No. 08-0775-BLS2, 2009 WL

981389, *4 (Mass. Super. November 25, 2008) (‘‘Massachusetts courts have

never recognized a tort of malicious defense. Nor has any other jurisdiction

done so, with the sole exception of New Hampshire.’’).

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that court18 acknowledged that ‘‘no jurisdiction has to

date adopted malicious defense as a cause of action’’;

id., 365; but, citing to a law review article, reasoned that,

‘‘[i]n appropriate circumstances, there may be ample

reason to extend the reach of the sanctions to counsel

who engages in the fostering of an unfounded defense

or pursues a defense for an improper purpose. . . .

The difference between the adoption of the tort of malicious defense and the existing power of courts to levy

sanctions is the nature and extent of the damages recoverable by the aggrieved party. Is a plaintiff less aggrieved

when the groundless claim put forth in the courts is

done defensively rather than affirmatively in asserting

a worthless lawsuit for improper purposes? We think

not.’’ (Citation omitted.) Id., 364–65. The court thus

recognized malicious defense as a cause of action under

New Hampshire law. Id., 366.

At the same time, the court emphasized that, ‘‘[m]alicious defense, like its counterpart malicious prosecution, is a limited cause of action that will lie only in

discrete circumstances, and malicious defense claims

will accordingly be scrutinized closely and construed

narrowly.’’ Id., 366–67. It then made the following observation, which is highly relevant to the issue now before

us: ‘‘We would not, for example, look favorably upon

a plaintiff’s threatening a malicious defense action when

faced with a defendant’s general denial of liability,

for a party should not be precluded from legitimately

raising a defense for fear of such an action.’’ (Emphasis

18 Justice Thayer dissented from the majority opinion, stating that ‘‘the

majority’s recognition of a tort of malicious defense is unwise as a matter

of policy.’’ Aranson v. Schroeder, supra, 140 N.H. 371. Justice Thayer reasoned that ‘‘plaintiffs who face a malicious and unfounded defense already

have at their disposal adequate remedies for the injuries they may suffer’’;

id.; that ‘‘[t]he potential for increased litigation is obvious’’; id., 373; and

‘‘[t]hat malicious defense is not a desirable addition to the tort law of New

Hampshire is evidenced by the fact that no other jurisdiction in the country

has explicitly recognized this cause of action.’’ Id., 374.

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added.) Id., 367. Accordingly, the one jurisdiction that

has recognized a cause of action for malicious defense

predicated on § 674 of the Restatement (Second) of

Torts has expressly disavowed the imposition of liability for a defendant’s general denials to a plaintiff’s complaint in a prior action.

b

To resolve the dispute presently before us, it is unnecessary to decide whether to recognize the tort of malicious defense or to adopt § 674 of the Restatement

(Second) of Torts. It is enough to conclude that a defendant’s general denials to a complaint in a prior action

cannot form the basis of a vexatious litigation action

under either our common law or that section of the

Restatement.19 For three primary reasons, I would so

conclude.

i

First, plaintiffs in Connecticut already have adequate

remedies to deal with defendants who answer a complaint with denials that are false or made in bad faith.

Pursuant to our rules of practice, plaintiffs who encounter such denials can file requests asking defendants to

19 DeLaurentis v. New Haven, 220 Conn. 225, 248, 597 A.2d 807 (1991),

and Diamond 67, LLC v. Oatis, 167 Conn. App. 659, 144 A.3d 1055, cert.

denied, 323 Conn. 926, 150 A.3d 230 (2016), and 323 Conn. 927, 150 A.3d

228 (2016), and cert. denied, 323 Conn. 927, 150 A.3d 228 (2016), and cert.

denied, 323 Conn. 927, 150 A.3d 229 (2016), and cert. denied, 323 Conn. 927,

150 A.3d 230 (2016), are irrelevant to that question. DeLaurentis stands for

the unremarkable proposition that a plaintiff who was forced to defend

himself in a prior administrative proceeding may thereafter maintain an

action for vexatious litigation. See DeLaurentis v. New Haven, supra, 248–49.

Diamond 67, LLC, concerned the conduct of third parties who intervened

in various administrative and mandamus proceedings between the plaintiff

company and a municipal land use agency; see Diamond 67, LLC v. Oatis,

supra, 662; and held merely that a genuine issue of material fact existed as

to their ‘‘role in the initiation, continuation, and/or procurement of the

actions in which they sought to intervene.’’ Id., 683. Neither DeLaurentis

nor Diamond 67, LLC, concerned a defendant’s liability for denials pleaded

in response to a plaintiff’s complaint in a prior action.

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revise their answers. See Practice Book § 10-35 (authorizing any party to file request to revise to obtain ‘‘the

deletion of any unnecessary, repetitious, scandalous,

impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading’’); Melfi v. Danbury,

70 Conn. App. 679, 684–86, 800 A.2d 582 (request to

revise properly used to delete improper statements

from adverse pleading), cert. denied, 261 Conn. 922,

806 A.2d 1061 (2002).

Plaintiffs confronted with what they believe to be

improper denials also may file requests for admissions

soon after an answer is filed. As this court has observed,

‘‘Requests for admissions are governed by Practice

Book §§ 13-22 through 13-25. . . . A party’s response

to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal

or amendment. . . . Similarly, a failure to respond

timely to a request for admissions means that the matters sought to be answered were conclusively admitted.’’ (Citations omitted; internal quotation marks omitted.) East Haven Builders Supply, Inc. v. Fanton, 80

Conn. App. 734, 744, 837 A.2d 866 (2004). If the plaintiff

in the present case believed that the defendant’s

answers to her complaint in the prior action were false

or that the defendant had refused to admit certain allegations ‘‘with a malicious intent to unjustly vex and

trouble her and to force her to incur increased litigation

costs’’—as she now alleges in this vexatious litigation

action—she could have sought judicial admissions with

respect to any such allegations early in the pleading

stage of that prior action, potentially obviating much

of the litigation that followed. See, e.g., Allied Grocers

Cooperative, Inc. v. Caplan, 30 Conn. App. 274, 279–80,

620 A.2d 165 (1993) (‘‘[b]ecause [the defendant] did not

respond to the request for admissions [regarding the

defendant’s liability], those facts were conclusively

established for purposes of this action’’); Wilkinson v.

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Shoney’s, Inc., supra, 269 Kan. 205 (emphasizing, in

declining to recognize malicious defense cause of action

predicated on § 674 of Restatement (Second) of Torts,

that ‘‘parties against whom claims are made are . . .

obligated to make admissions if requested’’). Indeed,

the plaintiff did precisely that when she filed a request

for admissions in 2018; in response, the defendant

admitted, inter alia, that the motor vehicle collision

at issue was directly and proximately caused by the

negligence of the operator of the motor vehicle that

collided with the plaintiff’s vehicle and that the plaintiff

suffered bodily injury as result thereof.

Furthermore, under our rules of practice, a party may

move for summary judgment ‘‘as a matter of right at

any time if no scheduling order exists and the case has

not been assigned for trial.’’ (Emphasis added.) Practice

Book § 17-44; see also Joe’s Pizza, Inc. v. Aetna Life &

Casualty Co., 236 Conn. 863, 867 n.8, 675 A.2d 441

(1996) (‘‘a party may move for summary judgment at

any time’’). If the plaintiff in the prior action believed

that the defendant’s answers to certain allegations in

her complaint regarding its liability were false or untenable, for example, she could have promptly moved for

summary judgment on the issue of liability. See, e.g.,

Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn.

280, 282, 472 A.2d 306 (1984) (‘‘[t]he plaintiff successfully moved for summary judgment as to liability against

all three defendants on the first count of the complaint’’); Teachers Ins. v. Broad & Hanrahan, Superior

Court, judicial district of Stamford-Norwalk, Docket

No. CV-93-0132304-S (June 28, 1995) (granting motion

for summary judgment as to liability filed less than two

months after plaintiff filed amended complaint). The

plaintiff here declined to do so.

Plaintiffs in Connecticut who encounter denials in

an answer that are false or made in bad faith also are

not without statutory recourse. Our legislature enacted

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General Statutes § 52-99 to address that issue specifically.20 As our Supreme Court explained, § 52-99 ‘‘allows

parties to seek monetary sanctions from the trial court

for allegations and denials within parties’ pleadings

made without reasonable cause and found to be

untrue.’’21 Dorfman v. Smith, supra, 342 Conn. 611–12.

In addition, it is well established that ‘‘the trial court has

the inherent authority to sanction parties for litigation

misconduct.’’ Id., 612; see also CFM of Connecticut,

Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108

(1996) (trial court ‘‘has the inherent authority to impose

sanctions against an attorney and his client for a course

of claimed dilatory, bad faith and harassing litigation

conduct’’ (internal quotation marks omitted)), overruled in part on other grounds by State v. Salmon, 250

Conn. 147, 735 A.2d 333 (1999). The trial court likewise

possesses inherent authority ‘‘to assess attorney’s fees

when the losing party has acted in bad faith, vexatiously,

wantonly or for oppressive reasons. . . . This bad faith

exception applies, not only to the filing of an action,

but also in the conduct of the litigation. . . . It applies

both to the party and his counsel.’’ (Internal quotation

marks omitted.) Lederle v. Spivey, 332 Conn. 837, 844,

213 A.3d 481 (2019). Nothing prevented the plaintiff in

the prior action from seeking costs, attorney’s fees, or

the imposition of sanctions in the face of allegedly false

or bad faith denials by the defendant.

ii

Second, I am mindful that a defendant’s answer to a

plaintiff’s complaint is a preliminary pleading that must

20 General Statutes § 52-99 provides in relevant part: ‘‘Any allegation or

denial made without reasonable cause and found untrue shall subject the

party pleading the same to the payment of such reasonable expenses, to

be taxed by the court, as may have been necessarily incurred by the other

party by reason of such untrue pleading . . . .’’ Our rules of practice contain

a reciprocal provision. See Practice Book § 10-5. 21 As our Supreme Court observed in Dorfman v. Smith, supra, 342 Conn.

609, ‘‘§ 52-99 demonstrates that other remedies exist for addressing . . .

the alleged conduct’’ of the defendant in the prior action.

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be filed within thirty days of the return date.22 See Practice Book § 10-8. Significantly, the purpose of pleadings

in this state is not to determine the truth of the allegations contained therein. Rather, ‘‘[p]leadings are

intended to limit the issues to be decided at the trial

of a case and [are] calculated to prevent surprise.’’

(Internal quotation marks omitted.) Birchard v. New

Britain, 103 Conn. App. 79, 83, 927 A.2d 985, cert.

denied, 284 Conn. 920, 933 A.2d 721 (2007); see also

Biller v. Harris, 147 Conn. 351, 357, 161 A.2d 187 (1960)

(‘‘[t]he purpose of pleadings is to apprise the court and

opposing counsel of the issues to be tried’’); Thames

River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 782,

720 A.2d 242 (1998) (‘‘essential purpose’’ of pleadings

is to limit issues to be tried); 71 C.J.S. 34, Pleading § 2

(2022) (‘‘[t]he purpose of pleadings is to frame, present,

define, and narrow the issues and to form the foundation of, and to limit, the proof to be submitted on the

trial’’).

‘‘In a civil action the general burden of proof rests

on the plaintiff . . . .’’ Hally v. Hospital of St. Raphael,

162 Conn. 352, 358, 294 A.2d 305 (1972); see also Ivimey

v. Watertown, 30 Conn. App. 742, 753, 622 A.2d 603

(‘‘[i]t is elementary that in a civil action, the plaintiff

bears the burden of proof on all essential elements of

a claim’’), cert. denied, 226 Conn. 902, 625 A.2d 1375

(1993). When a defendant answers a complaint, it alerts

the plaintiff and the court to the issues in dispute,

thereby leaving the plaintiff to its burden of proof. See

22 When a defendant files an answer in accordance with our rules of

practice, it often does so days or weeks after receiving a complaint, and

before it has had the opportunity to conduct discovery or depose relevant

parties such as the plaintiff. For that reason, it is not unusual for a defendant

to file an amended answer pursuant to Practice Book § 10-60 or § 10-61.

See, e.g., Ed Lally & Associates, Inc. v. DSBNC, LLC, 145 Conn. App. 718,

740–41, 78 A.3d 148 (defendants filed third amended answer more than one

year after complaint was filed and seven weeks before ‘‘trial was due to

begin’’), cert. denied, 310 Conn. 958, 82 A.3d 626 (2013).

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Hally v. Hospital of St. Raphael, supra, 358 (‘‘when an

answer denies several paragraphs of the complaint the

burden of proving each separate, material issue of fact

that was raised is thrown on the plaintiff’’); Eastern

Consolidators, Inc. v. W. L. McAviney Properties, Inc.,

159 Conn. 510, 510–11, 271 A.2d 59 (1970) (defendant’s

general denial in answer ‘‘put these allegations in issue,

with the burden on the plaintiff to prove them’’); see

also Argentinis v. Gould, 23 Conn. App. 9, 16, 579 A.2d

1078 (1990) (‘‘[a] general denial does not place any

burden on the denier’’), rev’d in part on other grounds,

219 Conn. 151, 592 A.2d 378 (1991). In Connecticut,

general denials are commonplace. See, e.g., Parente v.

Pirozzoli, 87 Conn. App. 235, 239, 866 A.2d 629 (2005)

(‘‘[t]he defendant’s answer set forth only general denials

of the plaintiff’s allegations’’); Musorofiti v. Vlcek, 65

Conn. App. 365, 368, 783 A.2d 36 (‘‘[t]he defendants’

answer contains a general denial’’), cert. denied, 258

Conn. 938, 786 A.2d 426 (2001); Monterose v. Cross, 60

Conn. App. 655, 661, 760 A.2d 1013 (2000) (‘‘[i]n this

case, there was a general denial and a special defense

of contributory negligence’’); Nesbitt v. Mulligan, 11

Conn. App. 348, 352, 527 A.2d 1195 (‘‘[t]he defendants’

answer consisted merely of a general denial of the plaintiff’s allegations of negligence’’), cert. denied, 205 Conn.

805, 531 A.2d 936 (1987). Given the purpose and common practice of pleadings in this state, I believe that

expanding our common-law vexatious litigation action

to encompass a defendant’s general denials to a complaint is ill-advised and will wreak havoc on our civil

courts.

iii

Third, additional dangers abound. The expansion of

the common-law action for vexatious litigation

undoubtedly will result in more, and potentially interminable, litigation. See California Physicians’ Service v.

Superior Court, supra, 9 Cal. App. 4th 1325 n.2; Ritter

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v. Ritter, supra, 381 Ill. 555; Rappaport v. Rappaport,

supra, 44 Misc. 2d 525. The risk of wasting ‘‘precious

judicial resources’’; Green v. Commissioner of Correction, 184 Conn. App. 76, 82, 194 A.3d 857, cert. denied,

330 Conn. 933, 195 A.3d 383 (2018); will only increase.

In addition, I am particularly concerned about engendering conflict between attorneys and their clients. The

preamble to our Rules of Professional Conduct states

that, ‘‘[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.’’

Rules of Professional Conduct, preamble, p. 1. At the

same time, ‘‘[a] lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless

there is a basis in law and fact for doing so that is not

frivolous’’; Rules of Professional Conduct 3.1; and shall

not ‘‘assist a client . . . in conduct that the lawyer

knows is . . . fraudulent . . . .’’ Rules of Professional

Conduct 1.2 (d). Lawyers in this state likewise are prohibited from knowingly making ‘‘a false statement of

fact or law to a tribunal or fail[ing] to correct a false

statement of material fact or law previously made’’;

Rules of Professional Conduct 3.3 (a) (1); and are obligated to ‘‘make reasonable efforts to expedite litigation

consistent with the interests of the client.’’ Rules of

Professional Conduct 3.2. Those precepts are not empty

bromides but, rather, expose attorneys to professional

discipline. See Rules of Professional Conduct, preamble, p. 3 (‘‘[f]ailure to comply with an obligation or

prohibition imposed by a [r]ule is a basis for invoking

the [attorney] disciplinary process’’).

If pleading a denial in response to a civil complaint

constitutes a proper basis for a vexatious litigation

action, I fear increased conflict between clients and

their attorneys in light of those professional obligations.

As the Supreme Court of Hawaii recognized, ‘‘[t]he creation of the tort of malicious defense and recognizing

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potential liability for defendants . . . may have a chilling effect on some legitimate defense and perhaps drive

a wedge between defendants seeking zealous advocacy

and defense attorneys who fear personal liability in a

second action. . . . The risk of compromising a defendant’s right to vigorous and zealous advocacy by virtue

of the threat of a subsequent lawsuit [is] too great to

justify the recognition of the tort of malicious defense.’’

(Citation omitted; internal quotation marks omitted.)

Young v. Allstate Ins. Co., supra, 119 Haw. 419–20; see

also Aranson v. Schroeder, supra, 140 N.H. 373 (Thayer,

J., dissenting) (‘‘[The] potential for conflict between the

interests of defendants and their attorneys can only

be expected to undermine the goals of [the Rules of

Professional Conduct]. Attorneys may give priority to

their own interests when formulating defense strategies, and they may be tempted to disclose the client’s

role in pursuing specific defense tactics in order to

shield themselves from personal attack.’’). Furthermore, the prospect of a subsequent vexatious litigation

action could be wielded strategically against defendants

by shrewd attorneys whose clients, as plaintiffs, shoulder the burden of proof in all civil actions in this state.23

See Hally v. Hospital of St. Raphael, supra, 162

Conn. 358.

I recognize that there is no Connecticut authority

precluding this court from expanding our common-law

vexatious litigation action to encompass a defendant’s

denials to a complaint. Given the grave implications

for practitioners and parties alike, I nevertheless am

troubled by the prospect of this court doing so, particularly when this novel issue has not been thoroughly

vetted by members of our profession in the form of

23 See 4 Restatement (Second), Torts § 767, comment (c), pp. 30–31 (1979):

‘‘Litigation and the threat of litigation are powerful weapons. When wrongfully instituted, litigation entails harmful consequences to the public interest

in judicial administration as well as to the actor’s adversaries.’’

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amicus briefs or proceedings before the Rules Committee of the Superior Court or the General Assembly.

c

The majority today articulates a holding regarding

pleading practice that will reverberate through every

civil courthouse in this state.24 Our Supreme Court has

long ‘‘eschewed the notion that pleadings should be

read in a hypertechnical manner.’’ (Internal quotation

marks omitted.) Carpenter v. Daar, 346 Conn. 80, 128,

287 A.3d 1027 (2023). There is an ocean of difference

between an inartfully or even negligently pleaded

answer on the one hand and the kind of malicious

conduct that vexatious suits are intended to punish on

the other. In light of today’s decision, the mere denial

of an allegation in a civil pleading—whether in response

to a claim, counterclaim, cross claim, or special

defense—may subject attorneys and their clients to the

daunting prospect of defending a vexatious litigation

action, and exposure to double and treble damages.

For all of the foregoing reasons, I believe that such

expansion of our common-law cause of action for vexatious litigation is unwarranted.

B

Even if I were to conclude otherwise, the plaintiff

still cannot prevail. Apart from my concern about the

proper scope of a vexatious litigation action, I believe

that the defendant had a good faith basis to plead general denials to the allegations of the complaint in the

prior action.

‘‘[I]n the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good

24 I am aware of not a single case from any jurisdiction, and neither the

plaintiff nor the majority has identified any, in which a court has held that

an action for vexatious litigation properly may be predicated on a party’s

denial of a paragraph of a complaint.

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faith belief in the facts alleged and the validity of the

claim asserted.’’ DeLaurentis v. New Haven, 220 Conn.

225, 256, 597 A.2d 807 (1991). ‘‘[P]robable cause may

be present even where a suit lacks merit. . . . The

lower threshold of probable cause allows attorneys and

litigants to present issues that are arguably correct,

even if it is extremely unlikely that they will win . . . .’’

(Citation omitted; internal quotation marks omitted.)

Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,

LLP, supra, 281 Conn. 103–104. ‘‘In either [a commonlaw or statutory vexatious litigation] action . . . [t]he

existence of probable cause is an absolute protection

. . . .’’ (Citation omitted; internal quotation marks

omitted.) Id., 94.

As recited in her August 21, 2019 complaint in the

present case, the plaintiff predicates her vexatious litigation claims on certain allegations from her complaint

in the prior action.25 Causation was an integral part of

25 In paragraph 8 of the first count of her August 21, 2019 complaint in

the present action, the plaintiff alleges in relevant part: ‘‘In [the prior action,

the plaintiff] set forth the following factual allegations:

‘‘a. As Joscelyn M. Smith approached the aforementioned intersection,

he failed to stop or slow his vehicle, and collided with [the plaintiff’s] vehicle

as she proceeded through the intersection, causing the harms and losses

set forth below;

‘‘b. Said collision and the resulting injuries, damages and losses sustained

by [the plaintiff] were directly and proximately caused by [Smith’s] negligence and/or carelessness . . . .

‘‘c. As a direct and proximate result of said collision, caused by [Smith’s]

negligence and/or carelessness, [the plaintiff] suffered physical injuries,

some, or all of which are likely to be permanent in nature . . . .

‘‘d. As a further direct and proximate result of [Smith’s] negligence and/

or carelessness, [the plaintiff] was forced to expend sums [for medical care

and treatment] . . . .

‘‘e. As a further direct and proximate result of [Smith’s] negligence and/

or carelessness, [the plaintiff] was forced to miss time from work and lose

wages . . . .

‘‘f. As a further direct and proximate result of the negligence and/or

carelessness of [Smith], [the plaintiff] has been permanently impaired in her

ability to pursue and enjoy life’s activities and pleasure, including suffering

emotional distress . . . .

‘‘g. At the time of the . . . accident . . . [Smith] . . . was underinDorfman v. Liberty Mutual Fire Ins. Co.
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those allegations, which allege both that the plaintiff’s

injuries were directly and proximately caused by the

negligence of the underinsured motor vehicle operator

involved in the automobile accident, and that the defendant was liable to the plaintiff for the damages that

were caused by the tortfeasor’s negligence and were

not covered by the tortfeasor’s insurance coverage.26 In

its answer to the plaintiff’s November 25, 2015 amended

complaint, the defendant stated, with respect to the

allegations now at issue,27 that it was ‘‘without sufficient

information to either admit or deny the allegations, and,

therefore, denies the allegations and leaves the plaintiff

to her proof.’’ (Emphasis added.)

The defendant filed an amended answer on December

15, 2016, in which it admitted the truth of certain allegations that it had denied in its previous answer.28 As to the

other allegations material to this appeal, the defendant

again stated that it was ‘‘without sufficient information

sured . . . .

‘‘h. [The plaintiff] has complied with her duties under the insurance contract between herself and the defendant . . .

‘‘i. The defendant . . . is liable to [the plaintiff] pursuant to the terms of

the above-mentioned insurance contract for damages resulting from the

bodily injury sustained by [the plaintiff] which were not compensated for

by the other involved operator’s insurance coverage.’’ (Emphasis added.) 26 As the trial court noted in its memorandum of decision, ‘‘the factual

predicate for all counts [set forth in the plaintiff’s complaint] are the allegations of the inappropriate denial of liability and damages.’’ 27 In that answer, the defendant admitted the truth of other allegations

set forth in count two of the plaintiff’s amended complaint, which are not

at issue in this vexatious litigation action. 28 Specifically, the defendant admitted that, ‘‘[o]n or about September 27,

2014, at approximately 10 a.m., the plaintiff was operating a motor vehicle

in an easterly direction on Elmfield Street, a public thoroughfare located

in West Hartford, Connecticut, and was approaching the intersection of

Somerset Street and Elmfield Street’’; that ‘‘the accident was caused by

Joscelyn Smith’s failure to keep a proper and reasonable lookout for other

motor vehicles upon the roadway’’; and that the plaintiff ‘‘has complied with

her duties to date [under the insurance policy between herself and the

defendant] but the policy requires the plaintiff to comply with continuing

duties and obligations.’’

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to either admit or deny the allegations, and, therefore,

denies the allegations and leaves the plaintiff to her

proof.’’ See footnote 1 of this opinion.

On April 12, 2017, the plaintiff filed her second

amended complaint. Count two of that complaint

alleged breach of contract on the part of the defendant.

In paragraphs 6 through 11, the plaintiff alleged that

she sustained injuries and damages that were caused

by the negligence of Joscelyn M. Smith.29 In both its

June 14, 2017 answer and September 5, 2017 revised

answer to the plaintiff’s April 12, 2017 second amended

complaint, the defendant generally denied those allegations.30

29 In paragraphs 6 through 11, the plaintiff alleged in relevant part:

‘‘6. As [Smith] approached the intersection, he failed to stop or slow his

vehicle, and collided with [the plaintiff’s] vehicle as she proceeded through

the intersection, causing the harms and losses set forth below.

‘‘7. Said collision and the resulting injuries, damages and losses sustained

by [the plaintiff] were directly and proximately caused by [Smith’s] negligence and/or carelessness . . . .

‘‘8. As a direct and proximate result of said collision, caused by [Smith’s]

negligence and/or carelessness, [the plaintiff] suffered physical injuries,

some, or all of which are likely to be permanent in nature . . . .

‘‘9. As a further direct and proximate result of [Smith’s] negligence and/

or carelessness, [the plaintiff] was forced to expend sums [for medical care

and treatment] . . . .

‘‘10. As a further direct and proximate result of [Smith’s] negligence and/

or carelessness, [the plaintiff] was forced to miss time from work and lose

wages . . . .

‘‘11. As a further direct and proximate result of the negligence and/or

carelessness of [Smith], [the plaintiff] has been permanently impaired in her

ability to pursue and enjoy life’s activities and pleasure.’’ (Emphasis added.) 30 Although it acknowledges that the issue of causation was raised in

various paragraphs of the plaintiff’s complaint, the majority suggests that an

action for vexatious litigation properly may be predicated on the defendant’s

allegedly evasive denials of portions of those paragraphs. I respectfully

disagree. It is well established that Connecticut courts do not read pleadings

in a hypertechnical manner. See Carpenter v. Daar, supra, 346 Conn. 128.

Moreover, plaintiffs that are unsatisfied with a defendant’s answer to a

particular paragraph of a complaint have multiple avenues of recourse under

our rules of practice. They may file requests to revise pursuant to Practice

Book § 10-35 or requests for admission pursuant to Practice Book § 13-22.

Alternatively, plaintiffs who have alleged multiple factual allegations in a

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On appeal, the plaintiff submits that it was improper

for the defendant to do so in light of the fact that (1)

the tortfeasor caused the motor vehicle accident in

question and (2) the tortfeasor was underinsured. As

she states in her appellate reply brief, ‘‘insurance companies are not entitled to litigate against their own

insureds when there is no basis in fact for their litigation

position. . . . [R]equiring the insureds to engage in

lengthy litigation just to obtain the benefit of the insurance policies for which they have paid a premium . . .

is textbook vexatious litigation and precisely what [the

defendant] did here.’’ (Emphasis added.)

I respectfully disagree. In my view, a defendant in a

motor vehicle negligence action always may dispute

whether the negligent conduct in question caused the

injuries and damages complained of by a plaintiff, even

when liability is not contested.31 See, e.g., General Accident Ins. Co. v. Mortara, 314 Conn. 339, 353, 101 A.3d

942 (2014) (discussing uninsured motorist benefits case

in which ‘‘the disputed issue did not pertain to insurance

coverage, but to damages that would have been recoverable from the tortfeasor’’); Bodner v. United Services

Automobile Assn., 222 Conn. 480, 488, 610 A.2d 1212

single paragraph—as the plaintiff did here—may amend the complaint, either

as of right pursuant to Practice Book § 10-59 or by leave of the court pursuant

to Practice Book § 10-60, to allege each factual allegation distinctly.

In this regard, I am mindful of the many attorneys in this state who toil

in the trenches of civil practice on a daily basis, where general denials,

requests to revise, requests for admissions, and amended complaints are

commonplace. Although the failure to admit a portion of a paragraph of a

complaint may give rise to monetary sanctions pursuant to § 52-99, sanctions

ordered by the court pursuant to its inherent authority; see CFM of Connecticut, Inc. v. Chowdhury, supra, 239 Conn. 393; and even an award of attorney’s

fees; see Lederle v. Spivey, supra, 332 Conn. 844; I do not believe that it

should give rise to a civil action for vexatious litigation. 31 The issue of causation frequently implicates (1) the credibility of witnesses, such as plaintiffs, medical providers and experts, (2) the related

issue of whether a plaintiff has any preexisting injuries, and (3) the extent

of any pain and suffering sustained by a plaintiff, a notoriously difficult type

of damage to measure.

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(1992) (defendant uninsured motorist insurance carrier

disputed only ‘‘the amount of damages’’ plaintiff sustained); Trujillo v. Chekas, 139 Conn. App. 675, 678, 59

A.3d 245 (2012) (plaintiff in action to recover uninsured

motorist benefits ‘‘failed to carry his burden of establishing the threshold question of causation, which was

contested at trial’’); Caprood v. Atlanta Casualty Co.,

80 Conn. App. 338, 339, 835 A.2d 74 (2003) (‘‘[t]he defendant [uninsured motorist insurance carrier] denied that

the plaintiff had been injured as a result of the negligent

conduct of the hit-and-run driver’’ (emphasis altered));

Garcia v. ITT Hartford Ins. Co., 72 Conn. App. 588,

590, 805 A.2d 779 (2002) (answer filed by defendant

uninsured motorist insurance carrier ‘‘denied most of

the allegations in the complaint’’); Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465,

467–68, 760 A.2d 117 (2000) (‘‘[t]he defendant [uninsured motorist insurance carrier] admitted that the tortfeasors were negligent, but contested the causal relationship between the accidents and the injuries claimed,

as well as their extent’’), aff’d, 257 Conn. 359, 777 A.2d

681 (2001). Simply put, liability for a motor vehicle

accident is different from liability for injuries allegedly

sustained therein.

Moreover, the record before us reflects that, subsequent to the filing of the defendant’s answers, the plaintiff filed a request for admissions. See part II A (2) (b)

(i) of this opinion. In response, the defendant admitted,

inter alia, that the motor vehicle collision at issue was

caused by the negligence of the operator of the motor

vehicle that collided with the plaintiff’s vehicle and that

the plaintiff suffered bodily injury as result thereof. As

a result of those admissions, the issues that remained

for trial were narrowed, and the primary dispute concerned the extent of the damages sustained by the plaintiff that were caused by the negligent conduct of the

tortfeasor.

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In that regard, the record indicates that the underinsured motorist insurance policy at issue in this case

provided $250,000 in coverage. The record also indicates that, sometime prior to January 5, 2016, the plaintiff released her claim against the tortfeasor, Smith, in

exchange for his $50,000 policy limit. After taking into

account the $50,000 that she received from the tortfeasor, the plaintiff sought to recover the sum of $200,000

from the defendant in the prior action, filed an offer

of compromise to that effect,32 and rejected offers of

compromise by the defendant for less than that

amount.33 When the defendant declined to settle for

$200,000, a trial followed. The jury thereafter returned

a verdict in favor of the plaintiff, and the court rendered

judgment in her favor in the amount of $119,928. The

fact that the plaintiff recovered $80,072 less than the

$200,000 she had sought to recover from the defendant

is, in my view, prima facie evidence that the defendant

had probable cause to deny the material allegations of

the plaintiff’s complaint.

That undisputed fact also raises the question of

whether, for purposes of a vexatious litigation analysis,

the prior proceeding truly ‘‘terminated in the plaintiff’s

favor.’’ Rioux v. Barry, supra, 283 Conn. 347; see also

MacDermid, Inc. v. Leonetti, 158 Conn. App. 176, 184,

118 A.3d 158 (2015) (‘‘[the] favorable termination

requirement is an essential element of a vexatious litigation claim’’). Because the defendant was successful in

litigating the prior action—insofar as the plaintiff recovered $80,072 less than the amount that she sought to

recover from the defendant—the prior action arguably

terminated in the defendant’s favor for purposes of

32 On May 15, 2017, the plaintiff filed an offer of compromise, in which

she offered to ‘‘resolve this case’’ for $200,000. 33 On April 24, 2017, the defendant filed an offer of compromise, in which

it offered to settle the plaintiff’s claims for $25,000. It thereafter filed a

second offer of compromise on April 2, 2018, in which it increased its

settlement offer to $35,000.

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determining whether its conduct in answering the complaint was vexatious.

As our Supreme Court has noted, ‘‘[f]avorable termination of [a plaintiff’s] suit often establishes lack of

merit . . . .’’ (Internal quotation marks omitted.) Falls

Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,

supra, 281 Conn. 103. I suggest the corollary is also true

when a defendant elects to contest the issue of whether

the negligent conduct in question caused the injuries

and damages complained of by a plaintiff. If a defendant

decides to have the jury resolve that issue because it

does not agree that the plaintiff is entitled to the full

amount of damages sought, and the jury then vindicates

that decision by awarding the plaintiff something much

less than that amount, I submit that such a ruling is

both favorable to the defendant and a per se indication

that it possessed probable cause to litigate the issue.

In light of the foregoing, I would conclude that the

trial court properly determined that the defendant had

probable cause to answer the plaintiff’s complaint as

it did. Because the existence of probable cause in the

vexatious litigation context is a question of law; see id.,

94; I would further conclude that the court properly

rendered summary judgment in favor of the defendant

with respect to the pleading of general denials in its

answer. I, therefore, respectfully dissent in part.

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