Dorfman v. Liberty Mutual Fire Ins. Co. (Concurrence & Dissent)

************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopin-
ion motions and petitions for certification is the “offi-
cially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Jour-
nal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0

2 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

ELGO, J., concurring in part and dissenting in part.
This case presents a question of first impression regard-
ing 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 mean-
ingful discovery prior to the rendering of summary judg-
ment and the analysis employed by the trial court on
her claims under the Connecticut Unfair Trade Prac-
tices 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 ren-
dered summary judgment in favor of the defendant,
Liberty Mutual Fire Insurance Company, on the vexa-
tious 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 Sys-
tems, 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 com-
plaint. To establish either cause of action, it is necessary
to prove want of probable cause, malice and a termina-
tion 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’’).
0, 0 CONNECTICUT LAW JOURNAL Page 1

0 Conn. App. 0 ,0 3
Dorfman v. Liberty Mutual Fire Ins. Co.

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 plain-
tiff. 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]exa-
tious litigation [generally] requires a plaintiff to estab-
lish that . . . the previous lawsuit or action was initi-
ated 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 insti-
tuting 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 cer-
tain 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]
Page 2 CONNECTICUT LAW JOURNAL 0, 0

4 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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-XX-XXXXXXX-S (June 10, 2013)
(56 Conn. L. Rptr. 248, 250) (denying motion to strike
because vexatious litigation count of complaint suffi-
ciently 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.
0, 0 CONNECTICUT LAW JOURNAL Page 3

0 Conn. App. 0 ,0 5
Dorfman v. Liberty Mutual Fire Ins. Co.

F.2d 1191, 1192 (7th Cir. 1969) (defendant seeking sum-
mary judgment on special defense of contributory negli-
gence 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 circum-
stances, 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 [vexa-
tious 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; inter-
nal 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 negli-
gent 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 contrib-
utory 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 com-
menced—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.
Page 4 CONNECTICUT LAW JOURNAL 0, 0

6 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

II
The plaintiff’s vexatious litigation counts also are
predicated on the defendant’s denial of certain para-
graphs 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. Stick-
els, 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.’’ McCar-
thy 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).
0, 0 CONNECTICUT LAW JOURNAL Page 5

0 Conn. App. 0 ,0 7
Dorfman v. Liberty Mutual Fire Ins. Co.

authority, nor has the plaintiff identified any, that autho-
rizes 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 omit-
ted.)); 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 pay-
ments 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 Connecti-
cut 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.
Page 6 CONNECTICUT LAW JOURNAL 0, 0

8 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

‘‘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 sup-
plemental 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.
0, 0 CONNECTICUT LAW JOURNAL Page 7

0 Conn. App. 0 ,0 9
Dorfman v. Liberty Mutual Fire Ins. Co.

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 encom-
pass 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 rela-
tionship, the meaning of such text is plain and unambig-
uous 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 gen-
eral 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 com-
mences and prosecutes any civil action or complaint
against another, in his own name or the name of others,
Page 8 CONNECTICUT LAW JOURNAL 0, 0

10 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 per-
sons—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 consti-
tutes 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., JPMor-
gan 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.’’
0, 0 CONNECTICUT LAW JOURNAL Page 9

0 Conn. App. 0 ,0 11
Dorfman v. Liberty Mutual Fire Ins. Co.

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 . . . .’’ (Cita-
tions omitted.) Scholastic Book Clubs, Inc. v. Commis-
sioner 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 legis-
lature simply could have added two words to the stat-
ute, so as to read ‘‘[a]ny person who . . . asserts a
denial or defense to any civil action or complaint com-
menced and prosecuted by another . . . .’’ The legisla-
ture 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 con-
tained’’ (internal quotation marks omitted)).
I am also mindful that ‘‘[l]egal terms . . . are to be
presumed to be used in their legal sense. . . . In ascer-
taining 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. Bridge-
port 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).
Page 10 CONNECTICUT LAW JOURNAL 0, 0

12 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 distin-
guished 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, deni-
als, or defenses’ ’’ (emphasis altered)).
I respectfully submit that the most familiar legal sense
of the phrase ‘‘asserts a defense,’’ as used by legal prac-
titioners 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 defen-
dant’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 coun-
terclaims—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
0, 0 CONNECTICUT LAW JOURNAL Page 11

0 Conn. App. 0 ,0 13
Dorfman v. Liberty Mutual Fire Ins. Co.

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 ‘‘con-
strue 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 Com-
mission, supra, 259 Conn. 155 (courts engaging in statu-
tory 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. Commis-
sioner 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 dam-
ages’’); see also Kearney & Trecker Corp. v. Cincinnati
Milacron, Inc., 562 F.2d 365, 373 (6th Cir. 1977)
(describing treble damages as ‘‘extreme’’ sanction). In
Page 12 CONNECTICUT LAW JOURNAL 0, 0

14 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 affirma-
tively 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 interpre-
tation’’ (internal quotation marks omitted)); State v.
Pond, 315 Conn. 451, 468, 108 A.3d 1083 (2015)
(‘‘[b]ecause the statutory language is subject to multi-
ple, 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’’
0, 0 CONNECTICUT LAW JOURNAL Page 13

0 Conn. App. 0 ,0 15
Dorfman v. Liberty Mutual Fire Ins. Co.

language in question, was enacted as part of a compre-
hensive 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 con-
cessions and bargains struck by hostile interest groups
and individuals of opposing philosophical positions.’’
(Footnote omitted.) Sanzone v. Board of Police Com-
missioners, 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 liabil-
ity 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 dam-
ages 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
Page 14 CONNECTICUT LAW JOURNAL 0, 0

16 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

Act 86-338 retained that penalty but added a provision
imposing double damages on any person who com-
mences a civil action without probable cause, irrespec-
tive of the question of malice. As Representative Wil-
liam L. Wollenberg, Chairman of the Judiciary
Committee, explained when introducing the bill, ‘‘[Pub-
lic 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 dam-
ages, if the action is brought without probable cause
and with malicious intent . . . there are treble dam-
ages. [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 Com-
mittee Hearings, Judiciary, Pt. 7, 1986 Sess., p. 2220
(statement from Connecticut Association of Realtors,
Inc., expressing support for ‘‘the stronger penalties pro-
vided for filing frivolous or vexatious suits’’); id., p. 2340
(letter from Connecticut Society of Architects express-
ing 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
0, 0 CONNECTICUT LAW JOURNAL Page 15

0 Conn. App. 0 ,0 17
Dorfman v. Liberty Mutual Fire Ins. Co.

action, none pertains to the answering of a complaint.
For example, at the hearing before the Judiciary Com-
mittee, Robert Hunter, President of the National Insur-
ance 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: ‘‘Frivo-
lous 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 attor-
neys 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 court-
house 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 peo-
ple 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 pro-
ceeding 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
Page 16 CONNECTICUT LAW JOURNAL 0, 0

18 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

(Second), Torts § 674, p. 452 (1977). Yet there is no
indication in the Restatement (Second) that § 674 con-
templates the scenario presented here, in which a vexa-
tious 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 com-
plaint or a defendant’s denial of an allegation set forth
therein. The legislative history thus is silent on the spe-
cific 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-
0, 0 CONNECTICUT LAW JOURNAL Page 17

0 Conn. App. 0 ,0 19
Dorfman v. Liberty Mutual Fire Ins. Co.

b
Canons of Construction
I therefore turn my attention to certain well estab-
lished canons of construction to divine the proper
meaning of § 52-568. See Spadoro v. United States Cus-
toms & 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) (can-
ons of construction are utilized to discern legislative
intent when statutory language ‘‘is not clear and unam-
biguous’’).
Section 52-568 patently is a punitive statute that expo-
ses 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 dam-
ages’’). The legislative history of § 52-568 likewise indi-
cates 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.
Page 18 CONNECTICUT LAW JOURNAL 0, 0

20 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

therein. See, e.g., Conn. Joint Standing Committee Hear-
ings, 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., express-
ing 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, urg-
ing 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 con-
struction normally . . . require the strictest of inter-
pretations’’); Commissioner of Administrative Ser-
vices 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
0, 0 CONNECTICUT LAW JOURNAL Page 19

0 Conn. App. 0 ,0 21
Dorfman v. Liberty Mutual Fire Ins. Co.

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 allega-
tions of a complaint.
Furthermore, it is well established that ‘‘[i]nterpreting
a statute . . . to change radically existing law is appro-
priate 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 can-
not 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 provi-
sions 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
Page 20 CONNECTICUT LAW JOURNAL 0, 0

22 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

encompass a defendant’s general denials to a com-
plaint—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 Commis-
sioner 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] constitu-
tional 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 legis-
lature’’).
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 defen-
dant’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 defen-
dant 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 Dorf-
man 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
0, 0 CONNECTICUT LAW JOURNAL Page 21

0 Conn. App. 0 ,0 23
Dorfman v. Liberty Mutual Fire Ins. Co.

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 litiga-
tion 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
Page 22 CONNECTICUT LAW JOURNAL 0, 0

24 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 specifi-
cally ‘‘on the ‘continuation or procurement of civil pro-
ceedings against another’ wording of Restatement (Sec-
ond) 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 counter-
claim 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 sepa-
rate 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 mali-
ciously 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).
0, 0 CONNECTICUT LAW JOURNAL Page 23

0 Conn. App. 0 ,0 25
Dorfman v. Liberty Mutual Fire Ins. Co.

subject the cross-defendant to the same potential liabil-
ity 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, court-
ordered sanctions, and monetary penalties for defen-
dants ‘‘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 desir-
able 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, invol-
untarily 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 speak-
ing, 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’’).
Page 24 CONNECTICUT LAW JOURNAL 0, 0

26 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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, propo-
nents of a malicious defense action fail ‘‘to distinguish
between the position of the parties, plaintiff and defen-
dant, 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 exercis-
ing 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 propo-
sition. 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 establish-
ment 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 success-
ful 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
0, 0 CONNECTICUT LAW JOURNAL Page 25

0 Conn. App. 0 ,0 27
Dorfman v. Liberty Mutual Fire Ins. Co.

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] defen-
dant’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 pro-
ceeding in the first instance. Actions for vexatious litiga-
tion and malicious prosecution are predicated on ‘‘the
right of an individual to be free from unjustifiable litiga-
tion [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 pro-
ceedings without probable cause and with malice. . . .
Because the defendant is haled into court, all of the
Page 26 CONNECTICUT LAW JOURNAL 0, 0

28 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

defendant’s resulting financial, emotional, and reputa-
tional injuries are attributable to the plaintiff’s mali-
cious 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 ulti-
mately 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.’’).
0, 0 CONNECTICUT LAW JOURNAL Page 27

0 Conn. App. 0 ,0 29
Dorfman v. Liberty Mutual Fire Ins. Co.

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 pre-
viously 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 com-
plaint mirrored the relevant language of § 674 of the Restatement (Second)
of Torts.
Page 28 CONNECTICUT LAW JOURNAL 0, 0

30 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 pur-
suant to the Rules of Professional Conduct. See id.,
423–24; see also W. Barker et al., ‘‘Litigating About Liti-
gation: 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 mali-
ciously and in bad faith, solely for the purpose of delay.
. . . However, the proper remedy for this is the applica-
tion of sanctions by the court in which frivolous, dila-
tory 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 appro-
priate 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, irre-
spective 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 defen-
dant ‘‘ ‘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]
0, 0 CONNECTICUT LAW JOURNAL Page 29

0 Conn. App. 0 ,0 31
Dorfman v. Liberty Mutual Fire Ins. Co.

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. Supe-
rior 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.
Page 30 CONNECTICUT LAW JOURNAL 0, 0

32 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

prior civil proceeding in the insurance context specifi-
cally. 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 inevita-
ble 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 plain-
tiffs 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. Mer-
rill 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.’’).
0, 0 CONNECTICUT LAW JOURNAL Page 31

0 Conn. App. 0 ,0 33
Dorfman v. Liberty Mutual Fire Ins. Co.

that court acknowledged that ‘‘no jurisdiction has to
18

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 mali-
cious defense and the existing power of courts to levy
sanctions is the nature and extent of the damages recov-
erable 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]ali-
cious defense, like its counterpart malicious prosecu-
tion, 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 obser-
vation, 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 rea-
soned 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.
Page 32 CONNECTICUT LAW JOURNAL 0, 0

34 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 liabil-
ity for a defendant’s general denials to a plaintiff’s com-
plaint in a prior action.
b
To resolve the dispute presently before us, it is unnec-
essary to decide whether to recognize the tort of mali-
cious defense or to adopt § 674 of the Restatement
(Second) of Torts. It is enough to conclude that a defen-
dant’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 com-
plaint with denials that are false or made in bad faith.
Pursuant to our rules of practice, plaintiffs who encoun-
ter 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.
0, 0 CONNECTICUT LAW JOURNAL Page 33

0 Conn. App. 0 ,0 35
Dorfman v. Liberty Mutual Fire Ins. Co.

revise their answers. See Practice Book § 10-35 (author-
izing any party to file request to revise to obtain ‘‘the
deletion of any unnecessary, repetitious, scandalous,
impertinent, immaterial or otherwise improper allega-
tions 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 admis-
sion unless the judicial authority permits withdrawal
or amendment. . . . Similarly, a failure to respond
timely to a request for admissions means that the mat-
ters sought to be answered were conclusively admit-
ted.’’ (Citations omitted; internal quotation marks omit-
ted.) 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 alle-
gations ‘‘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.
Page 34 CONNECTICUT LAW JOURNAL 0, 0

36 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 unten-
able, 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 success-
fully moved for summary judgment as to liability against
all three defendants on the first count of the com-
plaint’’); Teachers Ins. v. Broad & Hanrahan, Superior
Court, judicial district of Stamford-Norwalk, Docket
No. CV-XX-XXXXXXX-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
0, 0 CONNECTICUT LAW JOURNAL Page 35

0 Conn. App. 0 ,0 37
Dorfman v. Liberty Mutual Fire Ins. Co.

General Statutes § 52-99 to address that issue specifi-
cally.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)), over-
ruled 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.
Page 36 CONNECTICUT LAW JOURNAL 0, 0

38 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

be filed within thirty days of the return date.22 See Prac-
tice Book § 10-8. Significantly, the purpose of pleadings
in this state is not to determine the truth of the allega-
tions 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 founda-
tion 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).
0, 0 CONNECTICUT LAW JOURNAL Page 37

0 Conn. App. 0 ,0 39
Dorfman v. Liberty Mutual Fire Ins. Co.

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 plain-
tiff’s allegations of negligence’’), cert. denied, 205 Conn.
805, 531 A.2d 936 (1987). Given the purpose and com-
mon 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 com-
plaint 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 intermi-
nable, litigation. See California Physicians’ Service v.
Superior Court, supra, 9 Cal. App. 4th 1325 n.2; Ritter
Page 38 CONNECTICUT LAW JOURNAL 0, 0

40 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 Correc-
tion, 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 engen-
dering conflict between attorneys and their clients. The
preamble to our Rules of Professional Conduct states
that, ‘‘[a]s advocate, a lawyer zealously asserts the cli-
ent’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 pro-
ceeding 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 pro-
hibited 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 obli-
gated 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, pream-
ble, 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 cre-
ation of the tort of malicious defense and recognizing
0, 0 CONNECTICUT LAW JOURNAL Page 39

0 Conn. App. 0 ,0 41
Dorfman v. Liberty Mutual Fire Ins. Co.

potential liability for defendants . . . may have a chill-
ing 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 defen-
dant’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 strate-
gies, and they may be tempted to disclose the client’s
role in pursuing specific defense tactics in order to
shield themselves from personal attack.’’). Further-
more, the prospect of a subsequent vexatious litigation
action could be wielded strategically against defendants
by shrewd attorneys whose clients, as plaintiffs, shoul-
der 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, particu-
larly 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 wrong-
fully instituted, litigation entails harmful consequences to the public interest
in judicial administration as well as to the actor’s adversaries.’’
Page 40 CONNECTICUT LAW JOURNAL 0, 0

42 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

amicus briefs or proceedings before the Rules Commit-
tee 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 vexa-
tious 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 gen-
eral denials to the allegations of the complaint in the
prior action.
‘‘[I]n the context of a vexatious suit action, the defen-
dant 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.
0, 0 CONNECTICUT LAW JOURNAL Page 41

0 Conn. App. 0 ,0 43
Dorfman v. Liberty Mutual Fire Ins. Co.

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 common-
law 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 liti-
gation 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] negli-
gence 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 underin-
Page 42 CONNECTICUT LAW JOURNAL 0, 0

44 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 defen-
dant 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 allega-
tions 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 con-
tract 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 allega-
tions 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.’’
0, 0 CONNECTICUT LAW JOURNAL Page 43

0 Conn. App. 0 ,0 45
Dorfman v. Liberty Mutual Fire Ins. Co.

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 allega-
tions.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] negli-
gence 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
Page 44 CONNECTICUT LAW JOURNAL 0, 0

46 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

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 com-
panies 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 insur-
ance 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 Acci-
dent 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 recover-
able 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 Connecti-
cut, 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 wit-
nesses, 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.
0, 0 CONNECTICUT LAW JOURNAL Page 45

0 Conn. App. 0 ,0 47
Dorfman v. Liberty Mutual Fire Ins. Co.

(1992) (defendant uninsured motorist insurance carrier
disputed only ‘‘the amount of damages’’ plaintiff sus-
tained); 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 estab-
lishing 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 defen-
dant [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. Metropoli-
tan Property & Casualty Ins. Co., 60 Conn. App. 465,
467–68, 760 A.2d 117 (2000) (‘‘[t]he defendant [unin-
sured motorist insurance carrier] admitted that the tort-
feasors were negligent, but contested the causal rela-
tionship 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, subse-
quent to the filing of the defendant’s answers, the plain-
tiff 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 con-
cerned the extent of the damages sustained by the plain-
tiff that were caused by the negligent conduct of the
tortfeasor.
Page 46 CONNECTICUT LAW JOURNAL 0, 0

48 ,0 0 Conn. App. 0
Dorfman v. Liberty Mutual Fire Ins. Co.

In that regard, the record indicates that the underin-
sured motorist insurance policy at issue in this case
provided $250,000 in coverage. The record also indi-
cates that, sometime prior to January 5, 2016, the plain-
tiff 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 tortfea-
sor, 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 litiga-
tion claim’’). Because the defendant was successful in
litigating the prior action—insofar as the plaintiff recov-
ered $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.
0, 0 CONNECTICUT LAW JOURNAL Page 47

0 Conn. App. 0 ,0 49
Dorfman v. Liberty Mutual Fire Ins. Co.

determining whether its conduct in answering the com-
plaint was vexatious.
As our Supreme Court has noted, ‘‘[f]avorable termi-
nation 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.