Dorfman v. Liberty Mutual Fire Ins. Co.

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Dorfman v. Liberty Mutual Fire Ins. Co.

TAMARA DORFMAN v. LIBERTY MUTUAL
FIRE INSURANCE COMPANY
(AC 45389)
Alvord, Elgo and Seeley, Js.

Syllabus

The plaintiff sought to recover damages from the defendant, her automobile
insurance provider, claiming, inter alia, that the defendant’s pleading
conduct in a prior action involving the parties amounted to vexatious
litigation. The plaintiff had been involved in a motor vehicle collision
with S, who failed to stop his vehicle at a stop sign. During its yearlong
investigation of the plaintiff’s claim for underinsured motorist benefits,
the defendant acquired the police report regarding the collision, the
plaintiff’s recorded statement and the recorded statement of a witness
to the collision who was not listed in the police report. The defendant’s
claims specialists determined that S was 100 percent liable for the
collision and noted their findings in the claim file. The plaintiff com-
menced the prior action against S, who was underinsured. After citing
in the defendant as an additional party, the plaintiff alleged, inter alia,
a breach of contract claim against the defendant for its failure to pay
her underinsured motorist benefits, as well as claims for breach of the
implied covenant of good faith and fair dealing and violation of the
Connecticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.)
based on alleged violations of the Connecticut Unfair Insurance Prac-
tices Act (CUIPA) (§ 38a-815 et seq.). Before the defendant filed an
answer, the plaintiff settled her claim with S for the limit of his insurance
policy and withdrew the action against him. The defendant hired attor-
neys to represent it in connection with the plaintiff’s action but deliber-
ately withheld from them its file notes, which included the recorded
statement and the identity of the witness to the collision. In the defen-
dant’s initial answer to the complaint, which was filed one year after
the conclusion of its investigation into the plaintiff’s claim, the defendant
denied or stated that it did not have sufficient information to admit the
plaintiff’s allegations regarding the cause of the collision and her injuries,
and asserted a special defense of contributory negligence. The defendant
provided false responses to the plaintiff’s discovery requests, including
that it did not know of the existence of a witness to the collision or
whether any recorded statements of witnesses existed. In the plaintiff’s
deposition of the defendant, its designee admitted that the defendant
had been aware of the witness to the collision and his recorded statement
but failed to disclose that information in its interrogatory responses.
Prior to trial, the defendant withdrew its special defense. The defendant
then admitted liability at trial on the breach of contract claim, and a
jury awarded the plaintiff damages. The trial court then granted in part
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Dorfman v. Liberty Mutual Fire Ins. Co.
the defendant’s motion to dismiss the plaintiff’s other claims. The court
dismissed her claim for breach of the implied covenant of good faith and
fair dealing on the ground that it was barred by the litigation privilege,
as it was predicated on communications and statements filed in the
course of and related to a judicial proceeding. The court also dismissed
in part her claim for a violation of CUTPA based on the defendant’s
alleged violation of CUIPA, to the extent that the defendant had a
business practice of responding falsely to discovery requests. The court
rendered judgment for the plaintiff on the breach of contract claim and
for the defendant on the extracontractual claims, and our Supreme
Court in Dorfman v. Smith (342 Conn. 582) affirmed the trial court’s
judgment. The plaintiff then filed the present action, alleging claims for
common-law and statutory (§ 52-568 (1) and (2)) vexatious litigation
and violations of CUTPA based on the defendant’s alleged violations of
CUIPA. Among other things, the plaintiff claimed that, in the prior action,
the defendant had asserted its contributory negligence special defense
and filed false pleadings without probable cause and with malice, and
refused to admit certain allegations of her complaint, despite having
had the information gathered during its investigation of the plaintiff’s
claim. The trial court granted the defendant’s motion for summary judg-
ment, in which it contended, inter alia, that all of the plaintiff’s claims
were barred by the litigation privilege and that its pleadings in the
prior action were filed with probable cause and without malice. On the
plaintiff’s appeal to this court from the judgment of the trial court, held:
1. The defendant could not prevail on its claim that a vexatious litigation
action cannot be premised on allegedly false answers to a complaint in
a prior action, as, under the particular facts of this case, the plaintiff’s
allegations concerning the defendant’s alleged bad faith pleading in the
prior action properly asserted causes of action for vexatious litigation:
a. This court determined that Connecticut case law has expressed agree-
ment with § 674 of the Restatement (Second) of Torts, which permits
such a cause of action for a party’s conduct in continuing litigation
without probable cause, and the plaintiff’s allegations addressed the
defendant’s conduct that prolonged the Smith action with respect to the
breach of conduct count against the defendant, for which the defendant
eventually admitted liability; moreover, this court did not believe, con-
trary to the defendant’s contention, that, under the particular circum-
stances at issue, its decision would open floodgates to litigation or impose
unreasonable pleading requirements on parties, as vexatious litigation
actions contain inherent safeguards, including a lower threshold to estab-
lish probable cause and requirements that plaintiffs demonstrate a lack
of probable cause for the prior proceeding, that the prior proceeding
terminated in their favor and a showing of malice when treble damages
are sought under § 52-568 (2); furthermore, the possibility that a vexatious
litigation claim can be based on a bad faith denial in an answer did not
mean that the ability of defendants to hold plaintiffs to their proof will
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Dorfman v. Liberty Mutual Fire Ins. Co.
be chilled or that an inartfully pleaded answer or mere denial of an
allegation in a civil proceeding will subject individuals to vexatious
litigation actions, as it typically will be difficult to establish a lack of
probable cause when discovery in most cases is conducted after the
filing of an answer, and the lack of probable cause requirement acts as
a formidable barrier to baseless claims and serves to minimize any
chilling effect on zealous advocacy.
b. The defendant’s claim that the plaintiff’s remedy for untrue or
unfounded allegations in a complaint was limited to sanctions under the
applicable statute (§ 52-99) and rule of practice (§ 10-5) was unavailing;
our Supreme Court in Smith stated that a vexatious litigation action
was one of many remedies available to the plaintiff in challenging the
defendant’s conduct, which included a court’s inherent authority to sanc-
tion parties for litigation misconduct, and neither § 52-99 nor Practice
Book § 10-5 include language indicating that they are the exclusive rem-
edy for untrue pleadings.
c. This court concluded that the defendant’s denials of allegations in the
prior action that it allegedly knew to be true constituted the assertion
of a defense within the meaning of § 52-568: contrary to the defendant’s
claim that the phrase ‘‘asserts a defense’’ in § 52-568 should not be
applied to a defendant’s answer, denial or plea, this court determined
that, although § 52-568 does not define ‘‘defense,’’ the commonly used
dictionary definition of ‘‘defense’’ includes a denial and, thus, it would
have been superfluous for the legislature to add ‘‘denial’’ to the statutory
language; moreover, the general denial of a complaint’s factual allega-
tions is, in essence, the assertion of a defense to those allegations, and
the defendant presented no authority suggesting the contrary or that
‘‘defense’’ in § 52-568 must be limited to special defenses; furthermore,
to conclude that a denial in an answer is not a defense would contravene
the purpose of § 52-568 in making clear that it is the strong public policy
of the state to discourage dishonesty during the litigation process.
2. The trial court improperly granted the defendant’s motion for summary
judgment as to the plaintiff’s vexatious litigation claims, the court having
applied an incorrect legal standard in making its probable cause determi-
nation: the court focused on and limited its analysis to whether issues
of material fact existed as to the cause of the plaintiff’s injuries when
it instead should have looked critically at each of the defendant’s repre-
sentations at issue, alongside the information within the defendant’s
knowledge at the time it made those representations, to determine if
issues of material fact existed as to whether there was probable cause
for the defendant’s denials of allegations unrelated to the plaintiff’s
injuries and its assertion of contributory negligence as a special defense;
moreover, the court did not take into account the defendant’s denials
of allegations pertaining to how the collision occurred and whether it
was caused by S, as well as the assertion of contributory negligence,
when the defendant’s own internal investigation indicated that S was 100
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Dorfman v. Liberty Mutual Fire Ins. Co.
percent responsible for the collision; furthermore, the court improperly
concluded that the defendant met its burden of showing that no issue
of material fact existed as to whether it had probable cause for pleading
as it did, as the court did not consider that the defendant did not submit
documentary evidence or affidavits in support of its summary judgment
motion to demonstrate that it lacked knowledge of the contents of the
documents and information gathered as part of its investigation, or that
it had an objectively reasonable, good faith belief in the facts alleged
in its answers and the validity of its special defense; accordingly, because
the underlying facts that formed the basis for determining whether the
defendant had probable cause to plead as it did were disputed, and the
court failed to address the defendant’s other arguments in support of its
motion for summary judgment, the trial court’s judgment was reversed
as to the vexatious litigation claims and the case was remanded for
further proceedings.
3. The plaintiff’s claim that the trial court improperly rendered summary
judgment on the CUTPA and CUIPA counts of her complaint was unavail-
ing; although the court applied an incorrect legal standard in concluding
that its prior probable cause determination made it unnecessary to
address those claims, this court upheld the summary judgment on the
alternative ground that those claims were barred by the litigation privi-
lege, as the CUTPA and CUIPA counts were based on the same conduct
underlying the vexatious litigation claims, which the court in Smith
determined were protected by the litigation privilege.
(One judge concurring in part and dissenting in part)

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

Procedural History

Action to recover damages for, inter alia, vexatious
litigation, and for other relief, brought to the Superior
Court in the judicial district of Hartford, where the
court, Noble, J., granted the defendant’s motion for sum-
mary judgment and rendered judgment thereon, from
which the plaintiff appealed to this court. Reversed in
part; further proceedings.

David P. Friedman, with whom, on the brief, were
Marilyn B. Fagelson, Julie A. Lavoie and Leonard M.
Isaac, for the appellant (plaintiff).

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

Opinion

SEELEY, J. The plaintiff, Tamara Dorfman, appeals
from the summary judgment rendered by the trial court
in favor of the defendant, Liberty Mutual Fire Insurance
Company, in this action for, inter alia, vexatious litiga-
tion. On appeal, the plaintiff claims that the court (1)
improperly granted the defendant’s motion for sum-
mary judgment as to the counts of her complaint alleg-
ing vexatious litigation on the basis of its determination
that certain pleadings in a prior action between the
parties were filed by the defendant with probable cause,
(2) misapplied the proper standard of proof in granting
the defendant’s motion for summary judgment as to the
vexatious litigation counts, (3) improperly denied the
plaintiff the ability to obtain meaningful discovery
related to her claims of vexatious litigation prior to
granting the defendant’s motion for summary judg-
ment,1 and (4) did not engage in the proper analysis
when it granted the defendant’s motion for summary
judgment as to the counts of her complaint alleging
violations of the Connecticut Unfair Trade Practices
Act (CUTPA), General Statutes § 42-110a et seq., and the
Connecticut Unfair Insurance Practices Act (CUIPA),
General Statutes § 38a-815 et seq. We agree with the
plaintiff’s first two claims and, thus, reverse in part the
judgment of the court.
The following facts and procedural history, as alleged
in the complaint, construed in the light most favorable
to the plaintiff as the nonmoving party, and contained
in the record or as previously set forth by our Supreme
Court in a prior action involving the parties, are relevant
to our resolution of this appeal. In 2014, the plaintiff
sustained serious bodily injuries when her motor vehi-
cle collided with a vehicle operated by Joscelyn M.
Smith, who failed to stop his vehicle at a stop sign. At
1
See footnote 37 of this opinion.
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Dorfman v. Liberty Mutual Fire Ins. Co.

the time of the collision, the plaintiff had a motor vehicle
insurance policy with the defendant, which contained
a provision for uninsured-underinsured motorist cover-
age. By letter dated November 4, 2014, the defendant
was notified of the accident and of a potential claim
for underinsured motorist benefits by the plaintiff.
‘‘As part of its general business practices, the defen-
dant investigated the collision to determine the cause
and legal responsibility. In investigating the plaintiff’s
claim, the defendant acquired the police report regard-
ing the collision, the plaintiff’s recorded statement, and
the recorded statement of Birbahadu Guman, a witness
to the collision who was not listed in the police report.
The report and the statements all noted Smith’s failure
to stop at the stop sign. Based on this information,
two claims specialists employed by the defendant both
concluded that Smith was 100 percent liable for the
collision and noted their findings in the claim file [file
notes]. The defendant notified the plaintiff that her right
to pursue her claim was conditioned on her providing
an affidavit of no excess insurance.’’ Dorfman v. Smith,
342 Conn. 582, 586, 271 A.3d 53 (2022).
On September 29, 2015, the plaintiff commenced an
action against Smith (Smith action), who was underin-
sured.2 In December, 2015, the plaintiff moved for and
was granted permission to cite in the defendant as an
additional party in the Smith action for the purpose of
seeking underinsured motorist benefits pursuant to her
insurance policy with the defendant. The plaintiff
alleged a claim against the defendant for breach of
contract for failure to pay benefits. Before the defen-
dant filed an answer to the complaint, the plaintiff set-
tled her claim with Smith for the limit of his policy and
withdrew her claim against him. The defendant received
2
Smith’s insurance policy had a limit of $50,000, and the plaintiff’s damages
exceeded that amount.
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Dorfman v. Liberty Mutual Fire Ins. Co.

a signed release of the plaintiff’s claim against Smith
for his policy limit of $50,000 on January 5, 2016.
‘‘The defendant hired attorneys to represent it in con-
nection with the plaintiff’s claim but deliberately with-
held from them its file notes regarding the claim,
Guman’s name and existence, and Guman’s recorded
statement, even though it knew this information was
necessary for its attorneys to prepare accurate
responses to the plaintiff’s complaint and discovery
requests. In answering the complaint [on May 17, 2016],
the defendant pleaded that either it denied or did not
have sufficient information to admit the allegations that
Smith had failed to stop at a stop sign, causing the
collision and the plaintiff’s resulting injuries. The defen-
dant also asserted a special defense of contributory
negligence,3 even though it knew this to be false. . . .
‘‘The plaintiff’s attorney then noticed the defendant’s
deposition to address, in part, the factual basis behind
its answer and special defense. . . . Additionally, the
defendant provided false responses to the plaintiff’s
discovery requests, including that it did not know of
the existence of any witnesses not listed in the police
report and whether any recorded statements existed.
In further response to the deposition notice, the defen-
dant’s corporate designee testified under oath, admit-
ting that ‘[t]here was no basis in fact for [the defen-
dant’s] accusation that [the plaintiff] was in any way
responsible for causing the accident’ and that the defen-
dant ‘had known that there was nothing [the plaintiff]
3
‘‘[A]lthough Connecticut has adopted the doctrine of comparative negli-
gence; see General Statutes § 52-572h (b); our statutes retain the term con-
tributory negligence. See, e.g., General Statutes §§ 52-114 and 52-572h (b).’’
(Internal quotation marks omitted.) Stafford v. Roadway, 312 Conn. 184,
185 n.3, 93 A.3d 1058 (2014). Because the parties, the trial court, and our
Supreme Court in Dorfman v. Smith, supra, 342 Conn. 582, all have used
the term contributory negligence, we do so as well throughout this opinion.
See Wager v. Moore, 193 Conn. App. 608, 611 n.2, 220 A.3d 48 (2019).
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could have done to avoid the accident . . . .’ The defen-
dant’s designee also admitted that the defendant was
aware that Guman had witnessed the accident and made
a recorded statement but failed to disclose this informa-
tion in its interrogatory responses. On the basis of this
conduct, the plaintiff allege[d] that the defendant ‘used
intentional misstatements, intentional misrepresenta-
tions, intentionally deceptive answers, and violated
established rules of conduct in litigation,’ and ‘know-
ingly and intentionally engaged in dishonest and sinister
litigation practices by taking legal positions that were
without factual support’ to try to prevent the plaintiff
from receiving the benefits owed to her under the con-
tract.
‘‘The defendant’s designee also testified under oath
that, in addition to this misconduct, ‘[the defendant]
did not single out [the plaintiff] for special or unique
treatment when it conditioned [her] receipt of [underin-
sured motorist] benefits [on] the provision of an affida-
vit of no excess insurance but was instead pursuing
conduct that Liberty Mutual Corporation routinely
takes in its handling of claims from other policyholders
as well.’ Similarly, the defendant’s designee ‘testified
under oath that [the defendant] did not single out [the
plaintiff] for special or unique treatment when it
responded falsely to [her] discovery requests.’
‘‘Following this deposition, the trial court granted the
plaintiff permission to amend her complaint to include
claims for breach of the implied covenant of good faith
and fair dealing, negligent infliction of emotional dis-
tress, and violation of CUTPA based on a violation of
CUIPA. The defendant moved to bifurcate the breach
of contract claim from the extracontractual claims,
which the trial court granted. Prior to trial on the breach
of contract claim, the defendant withdrew its special
defense of contributory negligence. At trial on the
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Dorfman v. Liberty Mutual Fire Ins. Co.

breach of contract claim, the defendant admitted liabil-
ity, and a jury awarded the plaintiff $169,928.4
‘‘After the verdict, the defendant moved to dismiss
the remaining claims for lack of subject matter jurisdic-
tion on the ground that the litigation privilege barred
those claims. The trial court granted the motion in part
and denied it in part. Specifically, as to the plaintiff’s
claims for breach of the implied covenant of good faith
and fair dealing and negligent infliction of emotional
distress, the trial court held that, because the claims
were predicated on communications and statements
filed in the course of and related to a judicial proceed-
ing, the litigation privilege applied. For the same reason,
as to the plaintiff’s claim for violation of CUTPA based
on a violation of CUIPA, the trial court determined
that the allegations regarding a business practice of
responding falsely to discovery requests also were privi-
leged. The trial court determined, however, that, to
the extent the plaintiff’s CUTPA claim alleged that the
defendant maintained an improper business practice of
conditioning receipt of underinsured motorist benefits
on the provision of an affidavit of no excess insurance,
in violation of General Statutes § 38a-336c (c), the litiga-
tion privilege did not bar such a claim because this
practice did not occur during the judicial proceedings
but occurred before the action commenced. Thus, the
trial court granted the motion to dismiss except as to the
plaintiff’s CUTPA claim to the extent it was premised
on a violation of § 38a-336c (c).
‘‘The plaintiff appealed from the trial court’s decision
on the defendant’s motion to dismiss, but [this court]
dismissed the appeal for lack of a final judgment in
light of the continued viability of the CUTPA claim. The
plaintiff subsequently requested and received permis-
sion to amend her complaint to remove all allegations
4
After accounting for the $50,000 that the plaintiff had received in settle-
ment from Smith, the court reduced the amount of the jury award to $119,928.
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Dorfman v. Liberty Mutual Fire Ins. Co.

regarding the alleged violation of § 38a-336c (c).
Because the alleged violation of § 38a-336c (c) was the
only claim to have survived the motion to dismiss, the
trial court determined that the withdrawal of these alle-
gations effectively withdrew this theory of liability.
Accordingly, the court rendered judgment in favor of
the defendant on all of the plaintiff’s extracontractual
claims. The plaintiff then appealed to [this court]. The
appeal was then transferred to [our Supreme Court]
pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-1.’’ (Footnotes added.) Dorfman v. Smith,
supra, 342 Conn. 587–90. Our Supreme Court affirmed
the judgment dismissing the remaining claims on the
ground of the litigation privilege. Id., 586.
After the dismissal of her claims and during the pen-
dency of the appeal in the Smith action to our Supreme
Court, the plaintiff commenced the present action
against the defendant on August 27, 2019. The complaint
in the present action, filed September 3, 2019, has five
counts. Count one alleges a claim of common-law vexa-
tious litigation based on the following allegations con-
cerning the defendant’s pleading conduct in the Smith
action. Specifically, the plaintiff alleges that, despite
the information and documentation the defendant had
gathered during its investigation of the collision that
was completed on May 26, 2015, in the Smith action,
the defendant asserted in its initial answer, filed May 17,
2016, and continued to assert in its subsequent amended
answer, filed August 3, 2016, that it lacked sufficient
information to admit or deny the allegations of the
plaintiff’s amended complaint in the Smith action that
(1) Smith failed to stop or slow his vehicle when he
entered the intersection, causing the collision with the
plaintiff’s vehicle (paragraph 6 Smith action com-
plaint), (2) the collision and resulting injuries to the
plaintiff were caused by Smith’s negligence (paragraph
7 Smith action complaint), (3) the plaintiff sustained
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Dorfman v. Liberty Mutual Fire Ins. Co.

physical injuries, some of which were permanent in
nature, as a direct and proximate cause of Smith’s negli-
gence (paragraph 8 Smith action complaint), (4) the
plaintiff incurred expenses for medical care and treat-
ment as a result of Smith’s negligence, lost wages from
missing work due to the injuries sustained in the colli-
sion and has been permanently impaired in her ability
to enjoy life’s activities (paragraphs 9 through 11 Smith
action complaint), (5) Smith was underinsured at the
time of the collision (paragraph 15 Smith action com-
plaint), (6) the plaintiff complied with her duties under
her insurance policy with the defendant (paragraph 16
Smith action complaint), and (7) the defendant is liable
to the plaintiff under the terms of that policy (paragraph
17 Smith action complaint).5 According to the allega-
tions of count one of the complaint in the present case,
5
The plaintiff’s complaint in the present action alleges in relevant part:
‘‘8. In [the Smith action], [the plaintiff] set forth the following factual
allegations:
‘‘a. As . . . Smith approached the aforementioned intersection, he failed
to stop or slow his vehicle, and collided with [the plaintiff’s] vehicle as
she proceeded through the intersection, causing the harms and losses set
forth below;
‘‘b. Said collision and the resulting injuries, damages and losses sustained
by [the plaintiff] were directly and proximately caused by . . . Smith’s
negligence and/or carelessness in that he:
‘‘1. violated [General Statutes] § 14-301 by failing to stop his vehicle at
the intersection;
‘‘2. violated [General Statutes] § 14-301 by failing to yield the right of way
to [the plaintiff];
‘‘3. failed to keep the motor vehicle he was operating under reasonable
and proper control;
‘‘4. failed to keep a proper and reasonable lookout for other motor vehicles
upon the road;
‘‘5. failed to apply the brakes of the motor vehicle he was operating in
time to avoid a collision, although by a proper and reasonable exercise of
his faculties, he could have and should have done so;
‘‘6. failed to turn the motor vehicle he was operating to the right or left
so as to avoid a collision, although by a proper and reasonable exercise of
his faculties, he could have and should have done so;
‘‘c. As a direct and proximate result of said collision, caused by . . .
Smith’s negligence and/or carelessness, [the plaintiff] suffered physical injur-
ies, some, or all of which are likely to be permanent in nature, including
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Dorfman v. Liberty Mutual Fire Ins. Co.

the defendant refused to admit these allegations in the
Smith action without probable cause and ‘‘with a mali-
cious intent to unjustly vex and trouble [the plaintiff]
and to force her to incur increased litigation costs.’’

Count one further alleges that the defendant amended
its answer in the Smith action yet again on December
15, 2016, this time admitting the allegation in paragraph
seven of the amended complaint in the Smith action
that ‘‘the accident was caused by . . . Smith’s failure
to keep a proper and reasonable lookout for other motor
vehicles upon the roadway’’ and removing the special
defense of contributory negligence. In that amended
the following:
‘‘1. injury to the cervical spine including bulging discs at C5-6 and C6-7
with nerve root impingement and radicular symptoms;
‘‘2. right forearm injury;
‘‘3. headaches;
‘‘4. shock and trauma to the entire nervous system;
‘‘5. permanent partial disability;
‘‘d. As a further direct and proximate result of . . . Smith’s negligence
and/or carelessness, [the plaintiff] was forced to expend sums for doctors,
X-rays, medicines, diagnostic testing, extensive physical therapy and medical
care and treatment, and will be caused to expend further such sums in
the future;
‘‘e. As a further direct and proximate result of . . . Smith’s negligence
and/or carelessness, [the plaintiff] was forced to miss time from work and
lose wages, and may miss further time from work in the future, to her
financial detriment;
‘‘f. As a further direct and proximate result of the negligence and/or
carelessness of . . . Smith, [the plaintiff] has been permanently impaired
in her ability to pursue and enjoy life’s activities and pleasure, including
suffering emotional distress;
‘‘g. At the time of the above-described accident, the other involved operator
. . . Smith, was underinsured within the meaning of the law of the state
of Connecticut and the contract of insurance between [the plaintiff] and
the defendant . . .
‘‘h. [The plaintiff] has complied with her duties under the insurance con-
tract between herself and the defendant . . . and
‘‘i. The defendant . . . is liable to [the plaintiff] pursuant to the terms of
the above-mentioned insurance contract for damages resulting from the
bodily injury sustained by [the plaintiff] which were not compensated for
by the other involved operator’s insurance coverage.’’
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Dorfman v. Liberty Mutual Fire Ins. Co.

answer, the defendant also admitted certain allegations
in paragraphs 3 and 5 of the amended complaint con-
cerning the location and direction of travel of the vehi-
cles driven by the plaintiff and Smith on the day of
the collision, as well as the allegation in paragraph
16, stating: ‘‘As to the allegations in paragraph 16, the
defendant admits that the plaintiff has complied with
her duties to date but the policy requires the plaintiff
to comply with continuing duties and obligations.’’ That
amended answer, however, continued to assert that
the defendant lacked sufficient information to admit or
deny the remaining allegations outlined in the previous
paragraph. Thereafter, on April 12, 2017, the plaintiff
filed a second amended complaint in the Smith action
in which she withdrew count one against Smith and
added counts for breach of the implied covenant of good
faith and fair dealing, negligent infliction of emotional
distress, and a violation of CUTPA based on a violation
of CUIPA. Count two of the second amended complaint
in the Smith action, the breach of contract count against
the defendant, remained the same.

On June 14, 2017, the defendant filed an answer to
the second amended complaint in the Smith action,
this time changing its answers to certain allegations in
count two from being without sufficient information to
admit or deny the allegation to denials. For example,
in its June 14, 2017 answer, the defendant denied the
allegation in paragraph 7 that the collision was caused
by Smith’s negligence, even though, in its December
15, 2016 amended answer, it admitted that ‘‘the accident
was caused by . . . [Smith’s] failure to keep a proper
and reasonable lookout . . . .’’ The defendant also
denied allegations that Smith had failed to stop at a
stop sign and collided with the plaintiff’s vehicle as
it proceeded through the intersection, that Smith was
underinsured and that the plaintiff had complied with
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her duties under her insurance contract with the defen-
dant, even though in its previous answer it admitted
that the plaintiff had complied with her duties as of
that date.6
In count one of the complaint in the present case,
the plaintiff also alleges that, in the Smith action, the
defendant ‘‘asserted a special defense claiming that [the
plaintiff’s] injuries were caused by her own negligence,
although its own investigation concluded that . . .
Smith was ‘100 [percent] liab[le]’ for the accident, not-
ing that ‘witnesses confirm’ the events and that vehicle
photographs were ‘very damning’ of . . . Smith’s
responsibility for the accident.’’ The plaintiff further
alleges that the defendant asserted its special defense
without probable cause to do so and ‘‘with a malicious
intent to unjustly vex and trouble [the plaintiff] and to
force her to incur increased litigation costs.’’ Finally, in
count one the plaintiff alleges that the prior proceeding
terminated in her favor and that the ‘‘defendant’s prose-
cution of false pleadings that lacked probable cause
. . . was done with malicious intent and caused [her]
to suffer . . . damages . . . .’’
Count two of the complaint in the present case alleges
a claim for statutory vexatious litigation without malice
pursuant to General Statutes § 52-568 (1), and count
three alleges a claim for statutory vexatious litigation
with malice pursuant to § 52-568 (2).7 The substantive
6
The record shows that, on December 27, 2017, the plaintiff served the
defendant with a request for admissions. The defendant responded on Janu-
ary 25, 2018, admitting allegations that ‘‘[t]he September 27, 2014 motor
vehicle collision . . . was directly and proximately caused by . . . Smith’s
negligence, in that he . . . fail[ed] to stop his vehicle at the intersection’’;
‘‘[t]he subject collision was directly and proximately caused by . . . Smith’s
negligence, in that he . . . fail[ed] to yield the right-of-way to [the plaintiff];
and ‘‘[a]s a direct and proximate result of . . . Smith’s negligence in the
subject collision, [the plaintiff] suffered ‘bodily injury’ as defined by her
auto insurance policy with [the defendant] . . . .’’
7
General Statutes § 52-568 provides: ‘‘Any person who commences and
prosecutes any civil action or complaint against another, in his own name
or the name of others, or asserts a defense to any civil action or complaint
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allegations in these counts parallel those of count one,
with the exception of the allegations of malice, which
are absent from count two. Counts four and five allege
violations of CUTPA based on violations of CUIPA.
In September, 2020, the defendant filed a motion for
summary judgment as to all counts of the complaint,
arguing that there was no genuine issue of material fact
as to any of the plaintiff’s claims. In its memorandum
of law in support of its motion, the defendant argued
that, (1) even though counts one through three purport
to allege claims for vexatious litigation, they are ‘‘noth-
ing more than a regurgitation of the claims that have
previously been dismissed,’’ for which the defendant
is entitled to absolute immunity under the litigation
privilege; (2) because the plaintiff is ‘‘rehashing her
claim that the pleadings of counsel were improper . . .
[a]ny such claim is barred by the doctrine of res judi-
cata’’; (3) the vexatious litigation claims are unfounded
because the defendant had probable cause for its plead-
ings in the Smith action and there was no malice on
its part; (4) it relied on counsel to prepare its answers
in the Smith action; and (5) the CUTPA/CUIPA claims
were barred by absolute immunity under the litigation
privilege, as determined previously by our Supreme Court.
In support of its motion for summary judgment, the def-
endant submitted an affidavit from Michael DeStefano,
a complex claim resolution specialist for the defendant,
as well as portions of the transcript of DeStefano’s
deposition testimony, which deposition was taken in
connection with the Smith action.8 In response to the
commenced and prosecuted by another (1) without probable cause, shall
pay such other person double damages, or (2) without probable cause, and
with a malicious intent unjustly to vex and trouble such other person, shall
pay him treble damages.’’
8
We note that DeStefano’s affidavit references exhibits that were not filed
with the affidavit in the present case. Those exhibits include a letter of
representation in the Smith action from the plaintiff’s attorney, indicating
that the plaintiff’s claim likely would exceed the $50,000 limit of Smith’s
policy and that her attorney had demanded the full amount of Smith’s policy,
along with affidavits of no excess insurance; an affidavit from Smith in
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defendant’s motion for summary judgment, the plaintiff
filed an objection and supporting memorandum of law,
along with an affidavit from her attorney, Leonard M.
Isaac.
In a memorandum of decision dated March 7, 2022,
the court granted the defendant’s motion for summary
judgment as to all counts.9 In doing so, the court con-
cluded that the defendant’s pleadings in the Smith
action ‘‘were filed with probable cause.’’10 In light of its
which he attested that he was involved in the motor vehicle accident with
the plaintiff and had no other applicable automobile insurance; the defen-
dant’s file notes concerning the plaintiff’s claim for underinsured motorist
benefits, which indicate that the plaintiff had complied with her duties under
the insurance contract, the plaintiff’s claimed injuries, that Smith was ‘‘100
[percent] liable for failure to obey [a] . . . stop sign’’ and that ‘‘there was
nothing [the plaintiff] could have done to avoid this loss’’; and the defendant’s
supplemental responses to the plaintiff’s discovery requests in the Smith
action, in which the defendant corrected a prior mistaken response and
indicated the name of a witness who had provided a recorded statement.
Those exhibits, which have not been filed in the present action, previously
were filed in the Smith action. Although the trial court in the present case
took judicial notice of the Smith action for the purpose of setting forth the
factual history of the present case, which stems from the Smith action; see
footnote 9 of this opinion; the court gave no indication that it took these
exhibits from the Smith action into consideration in deciding the present
motion for summary judgment. Nevertheless, even if we consider these
exhibits as evidence submitted by the defendant in support of its motion
for summary judgment, they fail to demonstrate the absence of any genuine
issue of material fact relating to the issue of probable cause and, in fact,
tend to support the plaintiff’s allegations.
9
Judge Cesar A. Noble presided over the present action and the Smith
action. In his memorandum of decision granting the defendant’s motion for
summary judgment in the present case, he stated that the facts set forth in
his decision were ‘‘derived from the affidavit of . . . DeStefano, a complex
claim resolution specialist employed by [the defendant] familiar with the
claim and the court’s judicial notice of this file and the . . . file [in the
Smith action].’’ ‘‘There is no question that the trial court may take judicial
notice of the file in another case . . . .’’ (Internal quotation marks omitted.)
Jewett v. Jewett, 265 Conn. 669, 678 n.7, 830 A.2d 193 (2003). Neither party
has taken issue with the court taking judicial notice of the file in the Smith
action for the purpose of setting forth the undisputed factual history of
this case.
10
Specifically, the court stated: ‘‘In the present case, as argued by [the
defendant], ‘it was necessary to fully substantiate facts and information
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determination regarding probable cause, the court did
not address the defendant’s other arguments. With
respect to the plaintiff’s claim that she was deprived
of the opportunity to conduct discovery, the court took
judicial notice of an entry in the Smith action ‘‘in which
[the defendant] asserted, without contest, that four
depositions of [the defendant’s] personnel, with atten-
dant requests for production had been taken. The depo-
sitions took over twenty hours. The court rejects this
argument.’’ The court rendered summary judgment in
the defendant’s favor, and this appeal followed. Addi-
tional facts and procedural history will be set forth as
necessary.
We first set forth our well established standard of
review of a court’s decision granting a motion for sum-
mary judgment. ‘‘Practice Book § [17-49] provides that
summary judgment shall be rendered forthwith if the
pleadings, affidavits and any other proof submitted
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law. In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
party moving for summary judgment has the burden of
showing the absence of any genuine issue of material
fact . . . . [T]he party moving for summary judgment
is held to a strict standard. [The moving party] must
make a showing that it is quite clear what the truth is,
and that excludes any real doubt as to the existence of
any genuine issue of material fact. . . . A material fact
is a fact that will make a difference in the result of the
case. . . . Because the court’s decision on a motion
through the course of discovery and, as that was done, the complaint was
amended to address what had been substantiated. Given the intrinsic uncer-
tainty of the nature of a claim of injuries proximately caused by another’s
negligence, [the defendant] had probable cause to answer the complaint in
the manner in which it did.’’
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for summary judgment is a legal determination, our
review on appeal is plenary.’’ (Internal quotation marks
omitted.) Barbara v. Colonial Surety Co., 221 Conn.
App. 337, 357–58, 301 A.3d 535, cert. denied sub nom.
Colonial Surety Co. v. Phoenix Contracting Group, 348
Conn. 924, 304 A.3d 443 (2023). ‘‘[I]ssue-finding, rather
than issue-determination, is the key to the procedure.
. . . [T]he trial court does not sit as the trier of fact
when ruling on a motion for summary judgment. . . .
[Its] function is not to decide issues of material fact, but
rather to determine whether any such issues exist. . . .
‘‘It is frequently stated in Connecticut’s case law that,
pursuant to Practice Book §§ 17-45 and 17-46, a party
opposing a summary judgment motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact. . . . [T]ypically [d]em-
onstrating a genuine issue requires a showing of eviden-
tiary facts or substantial evidence outside the pleadings
from which material facts alleged in the pleadings can
be warrantably inferred. . . .
‘‘An important exception exists, however, to the gen-
eral rule that a party opposing summary judgment must
provide evidentiary support for its opposition . . . .
On a motion by [the] defendant for summary judgment,
the burden is on [the] defendant to negate each claim
as framed by the complaint . . . . It necessarily fol-
lows that it is only [o]nce [the] defendant’s burden in
establishing [its] entitlement to summary judgment is
met [that] the burden shifts to [the] plaintiff to show
that a genuine issue of fact exists justifying a trial. . . .
Accordingly, [w]hen documents submitted in support
of a motion for summary judgment fail to establish that
there is no genuine issue of material fact, the nonmoving
party has no obligation to submit documents establish-
ing the existence of such an issue.’’ (Citation omitted;
internal quotation marks omitted.) Gibilisco v. Tilcon
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Connecticut, Inc., 203 Conn. App. 845, 858–59, 251 A.3d
994, cert. denied, 336 Conn. 947, 251 A.3d 77 (2021).
I
Before we address the plaintiff’s claims on appeal,
we first must address a claim raised by the defendant
in its appellate brief. Specifically, the defendant claims
that the plaintiff’s remedy for an ‘‘untrue or unfounded
allegation in a pleading is [General Statutes] § 52-9911
and Practice Book § 10-5,12 not an action for vexatious
litigation.’’ (Footnotes added.) In making this claim, the
defendant asserts that an action for vexatious litigation
cannot be based on allegedly false answers to a com-
plaint in a prior action. The defendant’s claim does not
relate to the portions of the vexatious litigation counts
based on the defendant’s special defense of contribu-
tory negligence in the Smith action, as the defendant
acknowledges that ‘‘[t]he essence of vexatious litigation
is that . . . a defendant should not assert a defense to
an action without probable cause.’’ (Emphasis omitted.)
Because the defendant does not argue that a vexatious
litigation action cannot be premised on a special
defense filed in a prior action without probable cause,
we limit our discussion to the question of whether such
an action can be based on allegedly false answers to a
complaint in a prior action, which has never previously
11
General Statutes § 52-99 provides: ‘‘Any allegation or denial made with-
out reasonable cause and found untrue shall subject the party pleading the
same to the payment of such reasonable expenses, to be taxed by the court,
as may have been necessarily incurred by the other party by reason of
such untrue pleading; provided no expenses for counsel fees shall be taxed
exceeding five hundred dollars for any one offense.’’
Although § 52-99 was amended by No. 22-26, § 43, of the 2022 Public Acts,
that amendment has no bearing on this appeal. For simplicity, we refer to
the current revision of the statute.
12
Practice Book § 10-5 provides in relevant part: ‘‘Any allegation or denial
made without reasonable cause and found untrue shall subject the party
pleading the same to the payment of such reasonable expenses, to be taxed
by the judicial authority, as may have been necessarily incurred by the other
party by reason of such untrue pleading . . . .’’
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been addressed by the appellate courts of this state.13
We address this claim first because, if the allegations
in the vexatious litigation counts pertaining to the
defendant’s alleged conduct in filing false answers in
13
Although the defendant never raised this as a ground in support of its
motion for summary judgment, after the parties filed their memoranda of
law in support of and in opposition to the motion for summary judgment
and the trial court heard argument on the motion, the court ordered the
parties to file supplemental memoranda pertaining to the following issues:
(1) ‘‘Does the common-law tort of vexatious litigation require the alleged
tortfeasor to have commenced an action or may a defendant be liable by
virtue of his or her denial of facts alleged in a prior action?’’ (2) ‘‘Does the
denial of facts alleged in a prior action fall within the ambit of liability for
one who ‘asserts a defense to any civil action’ as provided in General Statutes
§ 52-568?’’ And (3) ‘‘Does the denial of the factual allegations of a paragraph
of a complaint, signifying an intention ‘to controvert’ the allegations; see
[Practice Book] § 10-46; constitute grounds for vexatious litigation?’’ Both
parties complied with the court’s order. Nevertheless, the trial court never
addressed this issue in its decision granting the motion for summary judg-
ment, which rested on its probable cause finding. Following oral argument
before this court, we issued an order for the parties to file supplemental
appellate briefs on this issue as well, and the parties have so complied. As
a general rule, ‘‘Connecticut appellate courts will not address issues not
decided by the trial court. . . . Bayview Loan Servicing, LLC v. Gallant,
209 Conn. App. 185, 197 n.7, 268 A.3d 119 (2021). [B]ecause our review is
limited to matters in the record, we . . . will not address issues not decided
by the trial court. . . . [O]nly in [the] most exceptional circumstances can
and will [an appellate court] consider a claim, constitutional or otherwise,
that has not been raised and decided in the trial court. . . . Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 142, 84 A.3d 840 (2014).’’ (Citation omitted; emphasis in original;
internal quotation marks omitted.) In Blumberg Associates Worldwide, Inc.,
our Supreme Court explained that, ‘‘unless all parties agree to review of
the unpreserved claim or the party raising the claim cannot prevail, the
reviewing court should provide specific reasons, based on the exceptional
circumstances of the case, to justify a deviation from the general rule that
unpreserved claims will not be reviewed.’’ Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., supra, 160–61. In the present
case, as we stated, we ordered the parties to file supplemental briefs on
this issue, and neither party has objected to our consideration of it in
deciding this appeal. Moreover, our review in this appeal from the granting
of a motion for summary judgment is plenary, this issue involves a question
of law, the party raising the claim cannot prevail, and we provided the parties
with a meaningful opportunity to address the issue. For those reasons, we
proceed to make a determination with respect to this issue without setting
forth any exceptional circumstances warranting our review. See State v.
Russo, 221 Conn. App. 729, 755–56, 303 A.3d 279 (2023), cert. denied, 348
Conn. 938, 307 A.3d 273 (2024).
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the Smith action do not properly set forth a cause of
action for vexatious litigation, we need not determine
whether the court’s finding of probable cause related
thereto was proper. ‘‘This claim requires us to interpret
the plaintiff’s pleadings, which is a question of law sub-
ject to plenary review.’’ Alpha Beta Capital Partners,
L.P. v. Pursuit Investment Management, LLC, 193
Conn. App. 381, 419, 219 A.3d 801 (2019), cert. denied,
334 Conn. 911, 221 A.3d 446 (2020), and cert. denied,
334 Conn. 911, 221 A.3d 446 (2020).
A
We first address this issue with respect to the com-
mon-law vexatious litigation claim in count one of the
complaint. In her supplemental brief to this court, the
plaintiff makes a number of arguments in support of
her assertion that a common-law vexatious litigation
claim can be premised on a party’s answer to a com-
plaint. First, she points to the language in our Supreme
Court’s decision in the prior appeal in this matter, in
which the court stated that ‘‘the plaintiff could have
brought a lawsuit for vexatious litigation.’’ Dorfman v.
Smith, supra, 342 Conn. 612. Second, she relies on the
language of the Restatement (Second) of Torts, § 674,
in support of her claim that a party who contributes
materially to and prolongs or continues litigation with-
out probable cause can be liable for vexatious litigation.
See 3 Restatement (Second), Torts § 674, p. 452 (1977).
According to the plaintiff, ‘‘[a] defendant unnecessarily
prolongs litigation by filing an answer in which it denies
allegations known to be true, and/or asserts affirmative
defenses or counterclaims that lack any basis in fact.’’
In its supplemental brief, the defendant counters that
‘‘none of the reported cases hold[s] that mere allega-
tions in a pleading can form the basis of such an action,’’
and that the plaintiff’s remedy for untrue pleadings is
§ 52-99 and Practice Book § 10-5, not a vexatious litiga-
tion action. Neither party has directed this court to
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Connecticut case law squarely on point with the issue,
either in support of or against it, nor has our research
revealed any such case.14
In answering this question, we must determine (1)
whether Connecticut follows § 674 of the Restatement
(Second) of Torts, and permits a cause of action for
common-law vexatious litigation for a party’s conduct
in continuing litigation without probable cause,15 (2) if
14
Our research has uncovered one Superior Court decision that involved
claims for statutory vexatious litigation premised on a party’s answer and
special defenses filed in a prior action. In Silano v. Verespy, Superior Court,
judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S (April 30, 2019)
(68 Conn. L. Rptr. 436, 436), the court, Bellis, J., denied a motion to strike
various counts of a complaint alleging claims for statutory vexatious litiga-
tion. Specifically, the ‘‘action stem[med] from the alleged vexatious litigation
by the defendant . . . through which the defendant allegedly engaged in
statutory vexatious litigation . . . in a prior action against the plaintiff . . .
when he filed his answer and special defenses and his motion for summary
judgment.’’ Id. As to the vexatious litigation counts based on the answer
and special defenses, the defendant sought to strike those counts on the
basis of the doctrine of res judicata, which the court determined was not
properly raised by way of a motion to strike. Id., 438. The court in Silano,
therefore, never addressed the issue before us in this appeal.
15
We disagree with the concurring and dissenting opinion’s conclusion
that, by addressing and answering this question, we are violating Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 160–61, 84 A.3d 840 (2014), because, according to the concurring
and dissenting opinion, the defendant was not given notice of the issue and
an opportunity to be heard thereon. The plaintiff relied on § 674 of the
Restatement (Second) of Torts and the continuation theory set forth therein
in raising that claim in her supplemental brief to this court, and she did so
as well in her supplemental brief to the trial court, which put the defendant
on notice that such a claim was being raised. Moreover, ‘‘[a]lthough the
Restatement (Second) of Torts is not binding precedent, our appellate courts
have frequently looked to it in outlining the contours of tort law in this
state.’’ (Internal quotation marks omitted.) Kenneson v. Eggert, 176 Conn.
App. 296, 308 n.4, 170 A.3d 14 (2017); see also Allen v. Cox, 285 Conn. 603,
613, 942 A.2d 296 (2008); Pestey v. Cushman, 259 Conn. 345, 358, 788 A.2d
496 (2002); Clohessy v. Bachelor, 237 Conn. 31, 38–39, 46, 675 A.2d 852
(1996); Northeast Building Supply, LLC v. Morrill, 224 Conn. App. 137, 150,
312 A.3d 138 (2024); Reiner v. Reiner, 214 Conn. App. 63, 73, 279 A.3d 788
(2022); Kumah v. Brown, 130 Conn. App. 343, 352 and n.4, 23 A.3d 758
(2011); Stohlts v. Gilkinson, 87 Conn. App. 634, 654, 867 A.2d 860, cert.
denied, 273 Conn. 930, 873 A.2d 1000 (2005). Indeed, as this court recently
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so, what type of conduct constitutes a ‘‘continuation’’
of civil proceedings, (3) whether the allegations of the
complaint properly assert a cause of action for vexa-
tious litigation with respect to the defendant’s alleged
bad faith pleading in its answers in the Smith action,
and (4) whether § 52-99 and Practice Book § 10-5 are
a party’s exclusive remedy for untrue pleadings. We
address these questions in turn.
1
Our determination of whether Connecticut follows
§ 674 of the Restatement (Second) of Torts must be
made with due regard for our well established case law
concerning vexatious litigation. ‘‘In Connecticut, the
cause of action for vexatious litigation exists both at
common law and pursuant to statute. . . . [T]o estab-
lish a claim for vexatious litigation at common law,
one must prove want of probable cause, malice and a
has stated, ‘‘in defining the parameters of a vexatious litigation claim in
Connecticut, our Supreme Court has often looked to the Restatement (Sec-
ond) of Torts, which describes, among other things, torts relating to unjustifi-
able litigation, including the torts of malicious prosecution, wrongful use
of civil proceedings, and abuse of process. See 3 Restatement (Second),
[supra, §§ 653 through 682, pp. 406–75]; see also DeLaurentis v. New Haven,
[220 Conn. 225, 256, 597 A.2d 807 (1991)]; Blake v. Levy, [191 Conn. 257,
264, 464 A.2d 52 (1983)].’’ (Footnote omitted.) Northeast Building Supply,
LLC v. Morrill, supra, 150. Finally, we gave the defendant a meaningful
opportunity to provide a supplemental brief concerning the issue of ‘‘whether
an action for vexatious litigation can be premised on a party’s answer to a
complaint in a prior action.’’ The fact that the defendant, in answering that
question, did not cite to the Restatement (Second) does not preclude this
court from looking to that resource for guidance on the issue, as the
Restatements of the law ‘‘seek to compile and distill the common law that
exists’’; Schwerin v. Ratcliffe, 335 Conn. 300, 326, 238 A.3d 1 (2020); and
are not the law. See Reiner v. Reiner, supra, 76 n.11; see also Doe v. Saint
Francis Hospital & Medical Center, 309 Conn. 146, 179 n.26, 72 A.3d 929
(2013) (even though parties made only passing reference to several
Restatement provisions and did not rely expressly on § 302B of Restatement
(Second) of Torts, court relied on § 302B because its underlying principles
informed arguments parties made on appeal and accurately reflected state
of law on issues in case).
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termination of suit in the plaintiff’s favor. . . . The stat-
utory cause of action for vexatious litigation exists
under . . . § 52-568, and differs from a common-law
action only in that a finding of malice is not an essential
element, but will serve as a basis for higher damages.’’
(Internal quotation marks omitted.) Elwell v. Kellogg,
220 Conn. App. 822, 835, 299 A.3d 1166, cert. denied,
348 Conn. 927, 304 A.3d 861 (2023); see also Forsstrom
v. Smanik, Superior Court, judicial district of Windham,
Docket No. CV-XX-XXXXXXX-S (November 20, 2014) (‘‘The
term ‘vexatious litigation’ applies to such behavior on
the part of a plaintiff in the first suit, as well as to such
conduct on the part of a prior defendant—although, as
to defendants, the unacceptable conduct is sometimes
referred to as ‘vexatious defense.’ Suits against those
who were plaintiffs in the first instance appear to out-
number those against former defendants by some order
of magnitude, and few of the latter have yielded lengthy
decisions; it is undisputed, nevertheless, that the two
categories are mirror images of each other and analyti-
cally indistinguishable . . . .’’ (Citation omitted.)).
‘‘A vexatious suit is a type of malicious prosecution
action, differing principally in that it is based upon a
prior civil action, whereas a malicious prosecution suit
ordinarily implies a prior criminal complaint.’’16 (Inter-
nal quotation marks omitted.) Falls Church Group, Ltd.
16
This court recently has noted ‘‘that many states, unlike Connecticut, refer
to vexatious litigation claims in the civil context as ‘malicious prosecution’
claims. See, e.g., Chervin v. Travelers Ins. Co., 448 Mass. 95, 102–103, 858
N.E.2d 746 (2006) (‘[t]he tort [of malicious prosecution] is not confined to
the wrongful initiation of criminal proceedings; it may be maintained for
the unjustifiable initiation of a civil action’ . . .)); Burt v. Smith, 181 N.Y.
1, 5, 73 N.E. 495 (1905) (‘[a]n action for malicious prosecution is usually
based upon an arrest in criminal proceedings, although it may be founded
upon a civil action when commenced simply to harass and oppress the
defendant’), appeal dismissed, 203 U.S. 129, 27 S. Ct. 37, 51 L. Ed. 121
(1906); Ims v. Portsmouth, 32 A.3d 914, 922 (R.I. 2011) (defining malicious
prosecution ‘as a suit for damages resulting from a prior criminal or civil
legal proceeding that was instituted maliciously and without probable cause,
and that terminated unsuccessfully for the plaintiff therein’ . . .)).’’ North-
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v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94, 912
A.2d 1019 (2007). ‘‘[T]he purpose of [an] action [for
vexatious litigation] is to compensate a wronged indi-
vidual for damage to his reputation and to reimburse
him for the expense of defending against the unwar-
ranted action. . . . Bernhard-Thomas Building Sys-
tems, LLC v. Dunican, 286 Conn. 548, 554, 944 A.2d 329
(2008).’’ (Internal quotation marks omitted.) Kazemi v.
Allen, 214 Conn. App. 86, 104, 279 A.3d 742 (2022), cert.
denied, 345 Conn. 971, 286 A.3d 906 (2023). ‘‘Permitting
recovery in a suit for vexatious litigation promotes the
‘interest in making the courts available for the resolu-
tion of disputes while discouraging the use of litigation
simply as a means to harm others.’ Simply put, liability
for vexatious litigation aims to penalize litigants and
attorneys who file or defend baseless claims solely with
the intention to frustrate the opposing party, monetarily
or otherwise.’’ (Footnote omitted.) S. Gruber, ‘‘A Law-
yer’s Guide to Vexatious Litigation in Connecticut,’’ 88
Conn. B.J. 184, 187 (2015).
Pursuant to § 674 of the Restatement (Second) of
Torts, ‘‘[o]ne who takes an active part in the initiation,
continuation or procurement of civil proceedings
against another is subject to liability to the other for
wrongful civil proceedings if (a) he acts without proba-
ble cause, and primarily for a purpose other than that
of securing the proper adjudication of the claim in
which the proceedings are based . . . .’’17 (Emphasis
added.) 3 Restatement (Second), supra, p. 452. As com-
ment (c) to § 674 of the Restatement explains, ‘‘one
who continues a civil proceeding that has properly been
begun or one who takes an active part in its continuation
east Building Supply, LLC v. Morrill, 224 Conn. App. 137, 154 n.9, 312 A.3d
138 (2024).
17
The elements of a claim for wrongful use of civil proceedings under
§ 674 of the Restatement (Second) of Torts are similar to those of the tort
of vexatious litigation. See Northeast Building Supply, LLC v. Morrill, 224
Conn. App. 137, 150 n.7, 312 A.3d 138 (2024).
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for an improper purpose after he has learned that there
is no probable cause for the proceeding becomes liable
as if he had then initiated the proceeding.’’ Id., comment
(c), p. 453. For purposes of this opinion, we refer to
this as the continuation theory.18
18
Notably, the continuation theory is not a novel one; in fact, a vast
majority of American jurisdictions have recognized and adopted it in the
context of claims for the malicious prosecution of a prior civil action,
malicious abuse of process, and wrongful use of civil proceedings. See Poff
v. Hayes, 763 So. 2d 234, 241 (Ala. 2000); Greywolf v. Carroll, 151 P.3d 1234,
1241 (Alaska 2007); McClinton v. Rice, 76 Ariz. 358, 367, 265 P.2d 425 (1953);
Sundeen v. Kroger, 355 Ark. 138, 142, 133 S.W.3d 393 (2003); Zamos v.
Stroud, 32 Cal. 4th 958, 966, 87 P.3d 802, 12 Cal. Rptr. 3d 54 (2004); Slee v.
Simpson, 91 Colo. 461, 465, 15 P.2d 1084 (1932); Salazar v. Public Trust
Institute, 522 P.3d 242, 249 (Colo. App. 2022); Debrincat v. Fischer, 217 So.
3d 68, 70 (Fla. 2017); Horne v. J.H. Harvey Co., 274 Ga. App. 444, 448, 617
S.E.2d 648 (2005); Arquette v. State, 128 Haw. 423, 431–33, 290 P.3d 493
(2012); Badell v. Beeks, 115 Idaho 101, 102–104, 765 P.2d 126 (1988); Dawson
v. Mead, 98 Idaho 1, 5, 557 P.2d 595 (1976); Beaman v. Freesmeyer, 131
N.E.3d 488, 497–98 (Ill. 2019); Liberty Loan Corp. of Des Moines v. Williams,
201 N.W.2d 462, 466 (Iowa 1972); Lindenman v. Umscheid, 255 Kan. 610,
624, 875 P.2d 964 (1994); Lemoine v. Wolfe, 168 So. 3d 362, 367 (La. 2015);
Friedman v. Dozorc, 412 Mich. 1, 34, 312 N.W.2d 585 (1981); Alpha Gulf
Coast, Inc. v. Jackson, 801 So. 2d 709, 721 (Miss. 2001); Palisades Collection,
LLC v. Watson, 375 S.W.3d 857, 861 (Mo. App. 2012); Farmers Ins. Exchange
v. Minemyer, 413 Mont. 60, 75, 532 P.3d 837 (2023); McKinney v. Okoye,
287 Neb. 261, 271–72, 842 N.W.2d 581 (2014); O’Brien v. Behles, 464 P.3d
1097, 1110–12 (N.M. 2020); Cold Spring Advisory Group, LLC v. National
Securities Corp., 226 App. Div. 3d 612, 612, 210 N.Y.S.3d 393 (2024); Siegel
v. O.M. Scott & Sons Co., 73 Ohio App. 347, 351, 56 N.E.2d 345 (1943);
Empire Oil & Refinery Co. v. Williams, 184 Okla. 172, 173, 86 P.2d 291
(1938); Checkley v. Boyd, 170 Or. App. 721, 734–36, 14 P.3d 81 (2000), review
denied, 332 Or. 239, 28 P.3d 1174 (2001); Coatesville v. Jarvis, 902 A.2d
1249, 1251 (Pa. Super.), appeal denied, 591 Pa. 688, 917 A.2d 844 (2006);
Brough v. Foley, 572 A.2d 63, 66 (R.I. 1990); Pallares v. Seinar, 407 S.C.
359, 366, 756 S.E.2d 128 (2014); Heib v. Lehrkamp, 704 N.W.2d 875, 884 n.8
(S.D. 2005); Cordova v. Martin, 677 S.W.3d 654, 659 (Tenn. App. 2023),
appeal denied, Tennessee Supreme Court, Docket No. M2021-0142-SC-R11-
CV (October 11, 2023); Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207
(Tex. 1996); Nielson v. Spencer, 196 P.3d 616, 620–21 (Utah 2008), cert.
denied, 207 P.3d 432 (Utah 2009); Bacon v. Reimer & Braunstein, LLP, 182
Vt. 553, 554, 929 A.2d 723 (2007); Loeffelholz v. Citizens for Leaders with
Ethics & Accountability Now, 119 Wn. App. 665, 695, 82 P.3d 1199, review
denied, 152 Wn. 2d 1023, 101 P.3d 107 (2004); Strid v. Converse, 111 Wis. 2d
418, 423, 331 N.W.2d 350 (1983); Cates v. Eddy, 669 P.2d 912, 917 (Wyo. 1983).
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In DeLaurentis v. New Haven, 220 Conn. 225, 248,
597 A.2d 807 (1991), our Supreme Court stated: ‘‘Most
courts now agree with the Restatement (Second) of
Torts, § 680, which permits liability for vexatious ‘initia-
tion, continuation or procurement of civil proceedings
against another before an administrative board that has
power to take action adversely affecting the legally
protected interests of the other.’ ’’ (Emphasis added.)
Id.; see 3 Restatement (Second), supra, § 680, p. 468.
Although the court in DeLaurentis expressed agree-
ment with § 680 of the Restatement (Second) of Torts
in recognizing that a vexatious litigation action may
be based on a prior administrative, rather than civil,
proceeding that terminated in the plaintiff’s favor; see
Rioux v. Barry, 283 Conn. 338, 347, 927 A.2d 304 (2007);
§ 680 includes the identical ‘‘initiation, continuation or
procurement of civil proceedings’’ language set forth
in § 674 of the Restatement, which is not limited to
administrative proceedings.19 We cannot think of any
19
Our Superior Courts have construed our Supreme Court’s reference
in DeLaurentis to the continuation language in § 680 of the Restatement
(Second) for administrative proceedings as a statement of its agreement
with and adoption of the continuation theory for purposes of the tort of
vexatious litigation, whether in an administrative or a civil proceeding. See
Diamond 67, LLC v. Oatis, Superior Court, judicial district of Hartford,
Complex Litigation Docket, Docket No. CV-XX-XXXXXXX-S (September 18,
2017) (citing DeLaurentis and its application of § 680 of Restatement (Sec-
ond) of Torts, and holding that ‘‘continuation of civil proceedings is sufficient
to support a vexatious litigation claim’’ based on defendants’ intervention
in mandamus action and administrative appeal); Infante v. Zurich American
Ins. Co., Docket No. CV-94-327422-S, 1998 WL 310871, *4 (Conn. Super. June
1, 1998) (citing § 674 of Restatement (Second) of Torts for proposition that
vexatious suit action ‘‘also applies to wrongful continuation of a lawsuit’’
and holding that question of material fact existed as to whether defendant
wrongfully continued civil proceeding); Levine v. Fairfield Fire Dept., Supe-
rior Court, judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-S (Decem-
ber 17, 1993) (10 Conn. L. Rptr. 556, 556–57) (explaining that DeLaurentis
‘‘recognized that a claim of vexatious suit or malicious prosecution was not
limited to a prior civil action or prior criminal complaint, but that it extends
to an initiation, continuation or procurement of civil proceedings’’); Paul
Rebeschi Construction, Inc. v. Yates, Superior Court, judicial district of New
Haven, Docket No. 307901 (August 19, 1991) (4 Conn. L. Rptr. 430, 430)
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reason why our Supreme Court, having acknowledged
its agreement with this theory for vexatious litigation
claims based on prior administrative proceedings,
would not do so in the context of such claims based on
prior civil proceedings. See Northeast Building Supply,
LLC v. Morrill, 224 Conn. App. 137, 150, 312 A.3d 138
(2024) (‘‘in defining the parameters of a vexatious litiga-
tion claim in Connecticut, our Supreme Court has often
looked to the Restatement (Second) of Torts’’); see also
Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52 (1983)
(referring to comment (j) of § 674 of Restatement (Sec-
ond) of Torts regarding requirement of vexatious litiga-
tion claim that plaintiff allege that prior litigation termi-
nated in plaintiff’s favor and purpose that requirement
serves).

Moreover, Connecticut case law suggests that this
court implicitly has expressed agreement with § 674 of
the Restatement (Second) of Torts and/or the continua-
tion theory as a proper basis for an action for vexatious
litigation. For example, this court previously applied
the continuation theory set forth in § 680 of the
Restatement (Second) of Torts in Diamond 67, LLC v.
Oatis, 167 Conn. App. 659, 144 A.3d 1055, cert. denied,
323 Conn. 926, 150 A.3d 230 (2016), and cert. denied,
323 Conn. 927, 150 A.3d 228 (2016), and cert. denied,
323 Conn. 927, 150 A.3d 228 (2016), and cert. denied,
323 Conn. 927, 150 A.3d 229 (2016), and cert. denied,
323 Conn. 927, 150 A.3d 230 (2016). In Diamond 67,
LLC, the plaintiff commenced an action against the
defendants for common-law and statutory vexatious
litigation premised on the defendants’ conduct in
intervening in certain mandamus and administrative
actions, which thereby caused a delay in the plaintiff’s
(holding that, although administrative proceeding was not initiated by defen-
dants, ‘‘its continuation by their taking the appeal [was] sufficient to support’’
cause of action for common-law vexatious litigation).
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ability to obtain certain necessary approvals for a devel-
opment project. Id., 667–68. The trial court rendered
summary judgment in favor of the defendants, and, on
appeal, this court reversed that judgment. Id., 672, 691.
After citing DeLaurentis and our Supreme Court’s
‘‘agree[ment] with the Restatement (Second) of Torts,
§ 680’’; (internal quotation marks omitted) id., 681; this
court concluded: ‘‘Here, the plaintiff submitted evi-
dence establishing that there is a genuine issue of mate-
rial fact as to each defendant’s participation in the initia-
tion, procurement, and/or continuation of their
respective interventions in the plaintiff’s administrative
and mandamus actions . . . .’’ Id., 683.
In Schaeppi v. Unifund CCR Partners, 161 Conn.
App. 33, 41, 127 A.3d 304, cert. denied, 320 Conn. 909,
128 A.3d 953 (2015), the plaintiff brought an action for
statutory and common-law vexatious litigation based
on the defendants’ alleged lack of probable cause (1)
to continue to prosecute a foreclosure action after being
put on notice that the amount of damages had not been
determined in an underlying debt collection action; id.,
52; and (2) to appeal from the denial of its motion to
open the judgment in the foreclosure action. Id., 54.
This court quoted the language from DeLaurentis that
‘‘there may be liability for vexatious ‘initiation, continu-
ation or procurement of civil proceedings’ ’’ in support
of the notion that ‘‘[p]robable cause . . . can be lost
during the course of an action.’’ (Emphasis in original.)
Id., 45 n.6. We ultimately concluded that the defendants
‘‘did not lose probable cause to pursue the foreclosure
action because of adverse rulings along the way’’; id.,
53; and that probable cause existed to pursue the
appeal. Id., 54. Similarly, in Rousseau v. Weinstein,
204 Conn. App. 833, 254 A.3d 984 (2021), the plaintiffs
brought an action raising common-law and statutory
vexatious litigation claims in which they ‘‘alleged that
the defendants lacked probable cause to commence
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and to continue [a] civil action’’ that contained the same
allegations as those raised in a prior dissolution action,
following the issuance of a decision in the dissolution
action. Id., 851. The trial court rendered summary judg-
ment in favor of the defendants, and this court, in
affirming the judgment, concluded that the defendants
‘‘had probable cause to continue the civil action, move
for a stay in that matter, and await the outcome of [an]
appeal prior to determining how to proceed.’’ Id., 859;
see also Infante v. Zurich American Ins. Co., Docket
No. CV-94-327422-S, 1998 WL 310871, *4 (Conn. Super.
June 1, 1998) (citing 3 Restatement (Second), supra,
§ 674, and explaining that, ‘‘[w]hile a vexatious suit
action is usually brought for wrongful initiation of a civil
proceeding, it also applies to wrongful continuation of
a lawsuit’’).

Although the precise issue before us in the present
case was not at issue in the cases we have cited, what
we derive from this case law is that actions for vexatious
litigation in Connecticut, both common-law and statu-
tory, have been and can be based on a party’s conduct in
the continuation of a civil or administrative proceeding
without probable cause. A vexatious litigation action
must still stem from a prior civil action or administrative
proceeding, and to establish such an action a party must
‘‘prove want of probable cause . . . and a termination
of suit in the plaintiff’s favor.’’ (Internal quotation marks
omitted.) DeLaurentis v. New Haven, supra, 220 Conn.
248. The continuation theory simply relates to a party’s
conduct within the prior action, whether civil or admin-
istrative in nature. Allowing a vexatious litigation action
for a party’s conduct in prolonging a civil proceeding
without probable cause furthers one of the underlying
purposes of the doctrine—to reimburse a party for liti-
gation expenses resulting from defending against or
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responding to unwarranted actions. See Bernhard-
Thomas Building Systems, LLC v. Dunican, supra, 286
Conn. 554.20
2
With this in mind, we necessarily must determine
what constitutes a ‘‘continuation’’ of a legal proceeding.
Pursuant to comment (c) to § 674 of the Restatement
(Second) of Torts, ‘‘one who continues a civil proceed-
ing that has properly been begun or one who takes an
active part in its continuation for an improper purpose
after he has learned that there is no probable cause for
the proceeding becomes liable as if he had then initiated
the proceeding.’’ 3 Restatement (Second), supra, § 674,
comment (c), p. 453. Merriam-Webster’s Collegiate Dic-
tionary (11th Ed. 2014) p. 270, defines continuation as
‘‘the act or fact of continuing in or the prolongation of
a state or activity . . . .’’ Continue is defined in part
as ‘‘to keep going or add to . . . prolong . . . .’’ Id.
Therefore, one who takes an active part in the continua-
tion of a civil proceeding engages in conduct that pro-
longs or keeps that proceeding going.
To that end, actions for vexatious litigation in Con-
necticut alleging a party’s continuation of a civil pro-
ceeding for an improper purpose have been based on
a myriad of ways in which the litigation has been pro-
longed in the prior action, including the filing of a coun-
terclaim and the assertion of a special defense; see
Rozbicki v. Sconyers, 198 Conn. App. 767, 769, 772, 234
A.3d 1061 (2020) (vexatious litigation count of com-
plaint alleged that defendants asserted special defenses
and filed counterclaim in prior action without probable
cause); intervening in an action; Diamond 67, LLC v.
20
See also Zamos v. Stroud, 32 Cal. 4th 958, 969, 87 P.3d 802, 12 Cal. Rptr.
3d 54 (2004) (‘‘[c]ontinuing an action one discovers to be baseless harms
[a party] and burdens the court system just as much as initiating an action
known to be baseless from the outset’’).
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Oatis, supra, 167 Conn. App. 683 (common-law and
statutory vexatious litigation claims premised on defen-
dants’ intervention in mandamus and administrative
actions, which caused delay in plaintiff’s ability to
obtain approvals for development project); filing a
motion; Duse v. Carter, 9 Conn. App. 218, 219, 518 A.2d
74 (1986) (statutory vexatious litigation claim alleging
that, in parties’ prior marital dissolution action, defen-
dant filed contempt motion without probable cause and
‘‘with a malicious intent to vex and trouble [the plain-
tiff]’’); Nutmeg Financial Holdings, LLC v. Bachleda,
Superior Court, judicial district of Hartford, Docket No.
CV-XX-XXXXXXX-S (October 12, 2022) (relying on
Schaeppi for proposition that ‘‘[a] claim for vexatious
litigation may be predicated on a complaint or a
defense, but also on a motion to open a judgment and a
subsequent appeal’’); Silano v. Verespy, Superior Court,
judicial district of Fairfield, Docket No. CV-XX-XXXXXXX-
S (April 30, 2019) (68 Conn. L. Rptr. 436, 438) (plaintiff
alleged requisite elements for vexatious litigation claim
by alleging that summary judgment motion was filed
without probable cause in prior action and with malice,
and that prior action terminated in plaintiff’s favor);
filing an appeal; see Schaeppi v. Unifund CCR Partners,
supra, 161 Conn. App. 36 (vexatious litigation action
alleging that defendants lacked probable cause to pur-
sue appeal following denial of motion to open foreclo-
sure judgment); Woodbury-Correa v. Reflexite Corp.,
Superior Court, judicial district of New Britain, Docket
No. CV-XX-XXXXXXX (December 15, 2014) (genuine issue
of material fact existed as to whether defendant had
probable cause to appeal decision of Department of
Labor); Paul Rebeschi Construction, Inc. v. Yates, Supe-
rior Court, judicial district of New Haven, Docket No.
307901 (August 19, 1991) (4 Conn. L. Rptr. 430, 430)
(holding that defendants’ continuation of administrative
proceeding by taking appeal was sufficient to support
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action for vexatious litigation and citing § 674 of
Restatement (Second) of Torts for support); and the
filing of grievance complaints. See Kaufman, LLC v.
Feinberg, Docket No. 3:17cv958 (AVC), 2018 WL
11391732, *4 (D. Conn. August 1, 2018) (holding that
grievance complaints could serve as basis for common-
law and statutory vexatious litigation claims).
3
Having discussed the types of conduct that can be
considered a continuation of a civil proceeding for pur-
poses of vexatious litigation, we next must determine
whether a defendant’s bad faith response in an answer
to an allegation in the plaintiff’s complaint, as alleged
in the present case, falls within the type of conduct on
which a vexatious litigation action can be premised. In
light of the particular circumstances of the present case,
we conclude that it does.
Black’s Law Dictionary defines an answer as ‘‘[a]
defendant’s first pleading that addresses the merits of
the case, [usually] by denying the plaintiff’s allegations.
. . . An answer usually sets forth the defendant’s
defenses and counterclaims.’’ Black’s Law Dictionary
(12th Ed. 2024) p. 114. Pursuant to Practice Book § 10-
46, ‘‘[t]he defendant in the answer shall specially deny
such allegations of the complaint as the defendant
intends to controvert, admitting the truth of the other
allegations, unless the defendant intends in good faith
to controvert all the allegations, in which case he or
she may deny them generally.’’ ‘‘The pleading of no
knowledge or information to . . . allegations [in a
complaint] is in effect a denial.’’ (Internal quotation
marks omitted.) Second Exeter Corp. v. Epstein, 5
Conn. App. 427, 429, 499 A.2d 429 (1985), cert. denied,
198 Conn. 802, 502 A.2d 932 (1986). When an action has
been commenced against a defendant, the defendant
must file an answer within a certain time period or it
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Dorfman v. Liberty Mutual Fire Ins. Co.

may be subject to default for failure to plead and mone-
tary penalties. See General Statutes § 52-119; Practice
Book §§ 10-8 and 17-32; see also Kaye v. Housman,
184 Conn. App. 808, 814, 195 A.3d 1168 (2018) (‘‘[o]ur
statutes and rules of practice provide penalties for fail-
ing to comply with the timely pleading requirements of
Practice Book § 10-8’’).
‘‘Connecticut courts historically have imposed sanc-
tions on parties for untruthful pleading.’’ Stamford Hos-
pital v. Schwartz, 190 Conn. App. 63, 86, 209 A.3d 1243,
cert. denied, 332 Conn. 911, 209 A.3d 644 (2019). If ‘‘[a]
plea of general denial to material allegations of the
complaint that the defendant knew to be true subjects a
litigant to pay expenses incurred to establish the truth’’
under our rules of practice; id.; we can think of no
reason why it cannot also subject a litigant to an action
for vexatious litigation when that litigant files an answer
in which it falsely denies, or asserts that it lacks suffi-
cient information to deny or admit, allegations it alleg-
edly knows to be true, nor have we found any Connecti-
cut authority precluding such an action. Good faith
pleading is required in Connecticut, and although the
filing of an answer is a required responsive pleading
under our rules of practice, a failure to admit, or the
denial in the answer of, allegations known to be true
at that time could unnecessarily prolong litigation just
as much as filing a motion; see Duse v. Carter, supra,
9 Conn. App. 219; or filing an appeal.21 See Schaeppi
v. Unifund CCR Partners, supra, 161 Conn. App. 36.
Moreover, the requirement in our rules of practice that
‘‘all allegations [in pleadings] . . . be founded on a rea-
sonable basis’’; Somers v. Chan, 110 Conn. App. 511,
21
We are not suggesting that a failure to plead could be the basis for a
claim of vexatious litigation. Although failing to plead does amount to a
failure to admit allegations that are not in dispute, a default for failure to
plead constitutes an admission of the allegations of the complaint and
therefore does not prolong the action.
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535, 955 A.2d 667 (2008); makes no exception for a
party’s answer.22

The allegations in this case present the unique cir-
cumstances in which a defendant may be liable for
vexatious litigation based on its responses to allegations
in the complaint. First, and significantly, we must
emphasize the context in which the present action
arose. The plaintiff was involved in a motor vehicle
accident with an underinsured tortfeasor, Smith. Imme-
diately following the accident, the plaintiff notified the
defendant, her insurer, of the accident and of a potential
claim for underinsured motorist benefits under her con-
tract of insurance with the defendant. That prompted
the defendant to start a file with respect to the plaintiff’s
accident and to conduct a yearlong investigation into
the matter that was concluded on May 26, 2015, before
the plaintiff commenced the prior negligence action
against Smith in September, 2015. In December, 2015,
the defendant was brought into the Smith action, and
the complaint was amended to allege a claim of breach
of contract against the defendant, not a negligence
claim. Although the plaintiff did not settle that action
with Smith until January, 2016, at the time the defendant
was brought into the action, the file notes in the defen-
dant’s file concerning the plaintiff’s accident indicated
that Smith was 100 percent liable for the accident, and
22
See Practice Book § 4-2, which provides in relevant part: ‘‘(a) Every
pleading and other paper of a party represented by an attorney shall be
signed by at least one attorney of record in the attorney’s individual name.
A party who is not represented by an attorney shall sign his or her pleadings
and other papers. The name of the attorney or party who signs such docu-
ment shall be legibly typed or printed beneath the signature.
‘‘(b) The signing of any pleading, motion, objection or request shall consti-
tute a certificate that the signer has read such document, that to the best
of the signer’s knowledge, information and belief there is good ground to
support it, that it is not interposed for delay, and that the signer has complied
with the requirements of Section 4-7 regarding personal identifying informa-
tion. . . .’’
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the defendant did not file its first answer to the com-
plaint until May, 2016, after Smith settled with the plain-
tiff.

The allegations of the complaint in the present case
describe a pattern of bad faith pleading by the defendant
during the course of the Smith action when the defen-
dant filed not only its initial answer asserting that it
lacked information to admit or deny, inter alia, the
allegation that Smith was 100 percent liable for the
accident, but three subsequent amended answers in
which it continued to make that assertion about various
allegations it allegedly knew to be true and, ultimately,
denied those allegations, despite having previously
admitted some of them. This occurred over a period
of more than one year. These allegations addressed
conduct that prolonged the Smith action with respect
to the breach of contract count against the defendant,
for which the defendant eventually admitted liability.
Our jurisprudence on vexatious litigation does not pre-
clude a party from basing a vexatious litigation action
on such allegations. Indeed, to permit a plaintiff to hold
a defendant accountable by way of a vexatious litigation
action for such alleged conduct furthers the purpose
of the tort of vexatious litigation.

The defendant and the concurring and dissenting
opinion suggest that our decision will open floodgates
to litigation.23 The defendant asserts that ‘‘[t]he plaintiff
23
See Paul Rebeschi Construction, Inc. v. Yates, supra, 4 Conn. L. Rptr.
430 (‘‘The court is fully aware that ‘honest litigants are to be encouraged
to seek justice and not to be deterred by fear of an action in return and
. . . that litigation must end somewhere, and that if one counter-action may
be brought, so may another and another.’ Prosser & Keeton on Torts § 120
(5th Ed.). However, when a party pursues a legal proceeding, without proba-
ble cause and for a purpose other than that of securing the proper adjudica-
tion of a claim, that person is not an honest litigant seeking justice and
should respond to damages for the harm caused by such reckless and costly
conduct.’’).
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would have this court adopt a rule that the mere asser-
tion of contributory negligence by defense counsel in
an uninsured or underinsured motorist case can be the
basis of a vexatious litigation claim against his or her
client. Besides opening the door to a flood of lawsuits,
such a rule would have a chilling effect on defense
counsel’s ability to represent the client competently
. . . and to exercise independent professional judg-
ment.’’ (Citation omitted.) The concurring and dis-
senting opinion echoes these concerns, relying on case
law from courts in other states where such actions are
disfavored. See, e.g., Ritter v. Ritter, 381 Ill. 549, 554–55,
46 N.E.2d 41 (1943); Pope v. Pollock, 46 Ohio St. 367,
370, 21 N.E. 356 (1889); see also footnote 26 of this
opinion. We are not persuaded by these arguments for
a number of reasons.
First, it is clear from Connecticut case law that an
action for vexatious litigation may be based on a coun-
terclaim or special defense that was asserted in a prior
action without probable cause. See Rozbicki v. Sconyers,
supra, 198 Conn. App. 791 (trial court improperly
granted defendant’s motion for summary judgment
because genuine issue of material fact existed as to
whether defendant had probable cause to assert special
defense). Second, the particular factual circumstances
of the present case indicate that the defendant had
conducted and closed a yearlong investigation into the
collision, at the close of which two claims specialists for
the defendant determined that Smith was 100 percent
liable for the collision and indicated their liability con-
clusions in the claim file long before the defendant was
brought into the Smith action. The photographs of the
accident, the police report and witness statements col-
lected during that investigation were all consistent with
the conclusions of the claims specialists. Additionally,
the plaintiff had settled her claim with Smith and with-
drew the action against him on January 5, 2016. Signifi-
cantly, this all occurred before the defendant filed its
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answer and special defense of contributory negligence
in the Smith action in May, 2016. Third, there are inher-
ent safeguards in actions for vexatious litigation that
‘‘balance the need to protect against inappropriate retal-
iatory litigation while incentivizing the reporting of
wrongdoing.’’ Dorfman v. Smith, supra, 342 Conn. 605;
see also Scholz v. Epstein, 198 Conn. App. 197, 232, 232
A.3d 1155 (2020), aff’d, 341 Conn. 1, 266 A.3d 127 (2021).
In fact, there is a lower threshold for establishing proba-
ble cause in vexatious litigation cases, which is
designed to permit attorneys to pursue novel legal theo-
ries, even though they may turn out to be unsuccessful.
See Kazemi v. Allen, supra, 214 Conn. App. 107. Thus,
a plaintiff alleging a claim of vexatious litigation will
have to demonstrate that the prior civil proceeding ter-
minated in the plaintiff’s favor, a lack of probable cause,
and, if the plaintiff is seeking treble damages under
§ 52-568 (2), a showing of malice. For these reasons
and under the particular facts of the present case, we
do not believe our decision today will open any flood-
gates to litigation or impose unreasonable pleading
requirements on parties.
For similar reasons, we also conclude that the possi-
bility that a claim for vexatious litigation can be based
on a bad faith denial in an answer does not mean that
the ability of defendants to hold plaintiffs to their proof
will be chilled. In a claim for vexatious litigation, a
lack of probable cause must be established; that is, the
plaintiff must show that the defendant denied allega-
tions that were known to be true at the time of the
denial. Furthermore, because discovery in most cases
is conducted after a party files an answer to a complaint,
it typically will be difficult to establish a lack of probable
cause at the time of the filing of the answer denying
an allegation. The probable cause requirement, thus,
acts as a formidable barrier to baseless vexatious litiga-
tion actions, as liability will attach only under narrow
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circumstances. That determination is further reinforced
by the fact that, in addition to lack of probable cause,
a party must also establish favorable termination of the
prior action and, if bringing a cause of action pursuant
to § 52-568 (2), malice, all of which help to distinguish
vigorous claims from malicious ones and, thus, serve
to minimize any chilling effect on zealous advocacy.
Moreover, in light of the ‘‘inherent safeguards against
inappropriate retaliatory litigation [contained within]
claims of vexatious litigation’’; Scholz v. Epstein, supra,
198 Conn. App. 232; we see no merit to the concurring
and dissenting opinion’s contention that, as a result of
our decision, ‘‘the mere denial of an allegation in a civil
pleading’’ or ‘‘an inartfully or even negligently pleaded
answer’’ will subject individuals to actions for vexatious
litigation.
Actions for vexatious litigation have long been a part
of Connecticut jurisprudence. See Frisbie v. Morris, 75
Conn. 637, 637, 55 A. 9 (1903) (explaining that ‘‘[vexa-
tious litigation] statute (Rev. 1902, § 1105) . . .
appears to have been first enacted in 1672 (Rev. of 1808,
p. 671), and with some changes in phraseology has
formed part of our law ever since’’); Munson v. Wick-
wire, 21 Conn. 513, 515 (1852) (action for malicious
suit); see also Sterling v. Adams, 3 Day (Conn.) 411,
432 (1809); Nichols v. Bronson, 2 Day (Conn.) 211, 216
(1805); Deming v. Taylor, 1 Day (Conn.) 285, 289–90
(1804); Ainsworth v. Allen, 1 Kirby (Conn.) 145, 146 (1786).
Connecticut, unlike most states, even permits a cause
of action for vexatious litigation based on the filing of
a special defense without probable cause, which, in
effect, is an action based on a vexatious defense. Yet,
despite the critics in other states where such actions are
not permitted and the concerns raised by the concurring
and dissenting opinion in the present case, there is no
indication that permitting such an action has caused
the foundations of our courthouses to crack from the
flood of lawsuits. History suggests that it also will not
do so as a result of our decision today.
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For these reasons, we believe that the concurring
and dissenting opinion overstates the consequences of
our decision and needlessly invokes ‘‘the sky is falling’’
rhetoric. It will be a rare case in which a party’s denial
of material factual allegations in a complaint will give
rise to a vexatious litigation claim. Moreover, our deci-
sion will not ‘‘reverberate through every civil court-
house in this state,’’ as suggested by the concurring and
dissenting opinion, in light of the vast circumstances
that Connecticut courts already have recognized as
proper grounds for actions for vexatious litigation. Sim-
ply put, our decision does not constitute an unwar-
ranted enlargement of the current law in Connecticut
regarding vexatious litigation24 but, rather, logically
stems from it and the policies underlying the tort. Those
policies are designed to protect the right of an individual
to be free from unjustifiable litigation, which applies
equally when litigation is unnecessarily prolonged by
a party who abuses the process, and a party should
be no less accountable for such wrongful conduct in
litigation simply because it occurred in the filing of
answers to a complaint, as opposed to a motion, special
defense or an appeal.
24
The concurring and dissenting opinion characterizes our decision as an
expansion of the current law regarding actions for vexatious litigation and,
in doing so, notes the ‘‘grave implications’’ resulting from the fact that the
novel issue in this case ‘‘has not been thoroughly vetted by members of our
profession in the form of amicus briefs or proceedings before the Rules
Committee of the Superior Court or the General Assembly.’’ These assertions
notwithstanding, as we have stated, our decision does not enlarge the current
law but logically flows from it. For that reason and in light of our Supreme
Court’s decision in Dorfman v. Smith, supra, 342 Conn. 582, we do not
believe that amicus briefs are warranted in this matter.
Furthermore, like the concurring and dissenting opinion, we are mindful
of the attorneys in this state who practice daily in our civil courts and we
agree that general denials are commonplace. When litigation is unnecessarily
prolonged by a party who files answers denying factual allegations it knows
to be true, however, a civil advocate exceeds the limits of legitimate advocacy
and should not be insulated from legal liability for the misuse of the litigation
process, while at the same time the inherent safeguards contained within
claims of vexatious litigation protect the civil advocate from retaliatory
litigation and limit the circumstances in which such a claim may be brought.
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In disagreeing with our determination, the concurring
and dissenting opinion engages in a lengthy analysis of
case law from, inter alia, Kansas, California, Illinois,
Ohio,25 and Hawaii26 rejecting the creation of a cause
of action for malicious defense. For example, the con-
curring and dissenting opinion refers to the fact that
25
Connecticut law differs from that of Ohio in one significant respect:
that is, for purposes of an action for vexatious litigation, a plaintiff in
Connecticut does not need to show that the defendant initiated the prior
action. See Bhatia v. Debek, 287 Conn. 397, 406, 948 A.2d 1009 (2008)
(explaining that initiation of lawsuit or action is not element of vexatious
litigation). Instead, all that is required with respect to the prior action
requirement is that there was a prior civil or administrative action involving
the parties that terminated in the plaintiff’s favor. Ohio, on the other hand,
requires as an essential element to a cause of action for malicious civil
prosecution that the plaintiff allege ‘‘malicious institution of prior proceed-
ings against the plaintiff by [the] defendant . . . .’’ (Internal quotation marks
omitted.) Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St. 3d 264,
269, 662 N.E.2d 9 (1996). Because Ohio requires that the party against whom
the malicious prosecution claim is brought must have instituted the prior
proceeding, it necessarily follows that an action for malicious civil prosecu-
tion in Ohio may not be premised on a defense asserted in the prior action
without probable cause. Ohio, however, has a vexatious litigator statute,
pursuant to which any person deemed to be a vexatious litigator may be
prohibited from further filing in various Ohio courts without prior approval.
See Ohio Rev. Code Ann. § 2323.52 (West 2017); State ex rel. Mobley v.
Franklin County Board of Commissioners, 173 Ohio St. 3d 568, 570, 231
N.E.3d 1146 (2023). A vexatious litigator is defined as ‘‘[a]ny person who
has habitually, persistently, and without reasonable grounds engaged in
vexatious conduct in a civil action or actions, whether in the court of claims
or in a court of appeals, court of common pleas, municipal court, or county
court, whether the person or another person instituted the civil action or
actions, and whether the vexatious conduct was against the same party or
against different parties in the civil action or actions.’’ Ohio Rev. Code Ann.
§ 2323.52 (A) (3) (West 2017). ‘‘Conduct’’ for purposes of the statute includes
‘‘[t]he filing of a civil action, the assertion of a claim, defense, or other
position in connection with a civil action, the filing of a pleading, motion,
or other paper in a civil action, including, but not limited to, a motion or
paper filed for discovery purposes, or the taking of any other action in
connection with a civil action . . . .’’ (Emphasis added.) Ohio Rev. Code
Ann. § 2323.51 (A) (1) (a) (West 2017).
26
It is noteworthy that the concurring and dissenting opinion relies on
cases from states, namely, Kansas, California, Illinois, Ohio and Hawaii, in
which actions for malicious prosecution, whether based on prior civil or
criminal proceedings, are expressly disfavored. See, e.g., Zamos v. Stroud,
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‘‘California courts repeatedly have resisted attempts to
impose liability on defendants who maliciously defend
a civil action,’’ as well as the reasoning of other states
that agree and have determined that, ‘‘[i]f the wrongful
conduct of a defendant causing the plaintiff to sue him
would give rise to an independent tort and a separate
cause of action, there would be no end to the litigation
. . . .’’ (Internal quotation marks omitted.) The flaw in
this argument, first and foremost, is that Connecticut
clearly permits a cause of action for vexatious litigation,
under the common law and pursuant to statute, based
on a party’s conduct in defending a civil action; we
simply do not refer to it as an action for malicious
defense. The most common example is an action for
vexatious litigation based on a special defense filed or
maintained in bad faith and without probable cause in
a prior civil action. See Rozbicki v. Sconyers, supra,
198 Conn. App. 769. The narrow issue in the present
case is not whether Connecticut should recognize the
tort of malicious defense but, rather, whether under
Connecticut law, which allows a cause of action to be
based on a party’s conduct in defending or unnecessar-
ily continuing a civil action, a party’s denial in its answer
of a complaint’s factual allegations that allegedly are
known to be true, which is made without probable
cause, can form the basis for a vexatious litigation
action. In other words, does such conduct constitute
continuing or prolonging litigation for purposes of a
claim under the common law, or does it constitute
‘‘asserting a defense’’ for purposes of a statutory cause
32 Cal. 4th 958, 966, 87 P.3d 802, 12 Cal. Rptr. 3d 54 (2004) (tort of malicious
prosecution is disfavored); Young v. Allstate Ins. Co., 119 Haw. 403, 420,
198 P.3d 666 (2008) (same); Budd v. Walker, 60 Kan. App. 2d 189, 197–98,
491 P.3d 1273 (same), review denied, 314 Kan. 854, P.3d (2021);
Beaman v. Freesmeyer, 131 N.E.3d 488, 494 (Ill. 2019) (same); Froehlich v.
Ohio Dept. of Mental Health, Docket No. 05AP-129, 2005 WL 3557449, *3
(Ohio App. December 30, 2005) (same), aff’d, 114 Ohio St. 3d 286, 871 N.E.2d
1159 (2007). Connecticut courts have not taken this view of actions for
vexatious litigation, as discussed previously in this opinion.
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of action for vexatious litigation. The concurring and
dissenting opinion’s analysis of that issue, therefore, is
entirely inapposite to the issue before this court in the
present case.
The concurring and dissenting opinion also incor-
rectly focuses on the concept of general denials of liabil-
ity, which is not at issue in this case. The Smith action
did not involve an allegation of negligence against the
defendant, nor has the plaintiff premised this vexatious
litigation action on the defendant’s failure to admit its
negligence in the Smith action. See footnote 33 of this
opinion. The plaintiff’s vexatious litigation action is
based on the defendant’s conduct in prolonging the
breach of contract action brought against it by denying
various material allegations in the Smith action it alleg-
edly knew to be true, including, inter alia, that (1) Smith
failed to stop or slow his vehicle when he entered the
intersection, causing the collision with the plaintiff’s
vehicle, (2) the collision and resulting injuries to the
plaintiff were caused by Smith’s negligence, (3) the
plaintiff sustained physical injuries, some of which were
permanent in nature, as a direct and proximate cause
of Smith’s negligence, (4) the plaintiff incurred
expenses for medical care and treatment as a result of
Smith’s negligence, lost wages from missing work due
to the injuries sustained in the collision and has been
permanently impaired in her ability to enjoy life’s activi-
ties, (5) Smith was underinsured at the time of the
collision, (6) the plaintiff complied with her duties
under her insurance policy with the defendant, and (7)
the defendant is liable to the plaintiff under the terms
of that policy.
The allegations in the Smith action include language
of causation, relating to both the cause of the collision
and the cause and extent of the plaintiff’s alleged injur-
ies. As we explain more fully in part II of this opinion,
it is without question that a defendant need not accept
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a plaintiff’s allegations regarding causation of injuries.
With respect to the allegations concerning the cause
of the collision, however, at the time the defendant
answered the complaint, it was not disputed, as demon-
strated by the defendant’s own investigation of the colli-
sion and Smith’s admission of liability and settlement
with the plaintiff, that Smith was responsible for the
collision as a result of his failure to stop at a stop
sign. The amended complaint in the Smith action also
includes factual allegations concerning the circum-
stances of the collision, that Smith was underinsured
and that the plaintiff had complied with her duties under
her insurance contract. In accordance with our rules of
practice, ‘‘[t]he defendant in the answer shall specially
deny such allegations of the complaint as the defendant
intends to controvert, admitting the truth of the other
allegations, unless the defendant intends in good faith
to controvert all the allegations, in which case he or she
may deny them generally.’’ (Emphasis added.) Practice
Book § 10-46. Evasive denials are addressed by Practice
Book § 10-47, which provides: ‘‘Denials must fairly meet
the substance of the allegations denied. Thus, when the
payment of a certain sum is alleged, and in fact a lesser
sum was paid, the defendant cannot simply deny the
payment generally, but must set forth how much was
paid to the defendant; and where any matter of fact is
alleged with divers circumstances, some of which are
untruly stated, it shall not be sufficient to deny it as
alleged, but so much as is true and material should be
stated or admitted, and the rest only denied.’’ These
provisions instruct that, in Connecticut, ‘‘[i]f the allega-
tion is true in part, that part should be admitted and
the balance denied. Evasive denials are not to be coun-
tenanced.’’ J. Kaye & W. Effron, 2 Connecticut Practice
Series: Civil Practice Forms (4th Ed. 2004) Form 105.3,
authors’ comment, p. 155.
Indeed, the defendant in the present case exemplified
this practice in its December 15, 2016 answer when it
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admitted the portion of paragraph 7 of the amended
complaint in the Smith action alleging that the accident
was caused by ‘‘Smith’s failure to keep a proper and
reasonable lookout for other motor vehicles upon the
roadway,’’ but asserted that it was without sufficient
information to either admit or deny the remaining alle-
gations of paragraph 7. Although the defendant admit-
ted the portion of the allegation pertaining to causation,
we recognize that, ordinarily, to the extent an allegation
in a complaint concerns causation or liability but also
makes factual assertions, a defendant may, in good
faith, deny the portion relating to causation or liability
if it intends to controvert such allegations but must
admit any portion which it knows to be true. Therefore,
in the present case, even though the allegations of the
complaint in the Smith action that are at issue in this
case pertain, in part, to causation and liability, the
defendant was still required to admit those portions of
the allegations it knew to be true. Requiring a defendant
to do so is entirely consistent with the pleading require-
ments in this state and will not impose any new or
unnecessary burdens on parties.
Accordingly, we conclude, under the particular facts
of this case, that the allegations of count one of the
complaint concerning the defendant’s alleged bad faith
pleading in the Smith action properly assert a cause of
action for vexatious litigation under the common law.27
27
Our decision today should not be construed as a statement that the
plaintiff will be successful in proving this claim at a trial. This case comes
before us on an appeal from the granting of a motion for summary judgment,
in which we must construe the allegations of the complaint and the evidence
in the light most favorable to the plaintiff. Even though we have concluded
that the vexatious litigation counts can properly be based on the defendant’s
alleged bad faith pleading in the Smith action, at a trial of the matter the
plaintiff still must prove the elements of those counts and any damages she
has suffered. Moreover, the concurring and dissenting opinion also spends
significant time discussing the admissions made by the defendant in response
to the request for admissions filed by the plaintiff. See footnote 6 of this
opinion. Those admissions may impact the amount of damages, if any,
suffered by the plaintiff but have no bearing on the issue of whether the
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4
Finally, we address the defendant’s contention that
the plaintiff’s ‘‘remedy for an untrue or unfounded alle-
gation in a pleading is . . . § 52-99 and Practice Book
§ 10-5, not a vexatious litigation action.’’ (Footnotes
omitted.) As we have noted in this opinion, both § 52-
99 and Practice Book § 10-5 permit a party to seek
monetary sanctions when ‘‘[a]ny allegation or denial
[is] made without reasonable cause and found [to be]
untrue . . . .’’ Neither the statute nor the rule of prac-
tice, however, includes language indicating that it is
the exclusive remedy for untrue pleadings, nor has the
defendant directed this court to any authority support-
ing that proposition. In the absence of any such limiting
language or authority, we cannot conclude that the
plaintiff’s only remedy for the defendant’s untrue plead-
ings in the Smith action was to seek sanctions pursuant
to § 52-99 or Practice Book § 10-5.28 See Caciopoli v.
Lebowitz, 309 Conn. 62, 72, 68 A.3d 1150 (2013) (‘‘[T]he
legislature is capable of providing explicit limitations
when that is its intent. . . . In the absence of explicit
language indicating that the statute is the exclusive
remedy, we will not presume that the legislature
intended to occupy the field and preempt a common-
law cause of action. See Lynn v. Haybuster Mfg., Inc.,
defendant had probable cause to plead denials in its answer and amended
answers, which were filed prior to the admissions.
28
We find persuasive statements of the Hawaii Supreme Court in Arquette
v. State, 128 Haw. 423, 431–33, 290 P.3d 493 (2012), in which the court first
recognized a cause of action for maintaining a malicious prosecution. The
court stated that doing so was necessary to ‘‘properly guard against the
harms associated with protracted litigation,’’ and that litigation can have ‘‘a
profound effect upon the quality of one’s life that goes beyond the mere
entitlement to counsel fees.’’ (Internal quotation marks omitted.) Id., 431.
The court explained further that ‘‘the existing rules and statutes do not
fully remedy the harms inflicted by protracted litigation’’; id., 432; in that,
‘‘[a]lthough the conduct associated with continuing a malicious prosecution
is subject to sanctions [of attorney’s fees], attorney’s fees may not always
provide a complete remedy to a litigant . . . .’’ (Footnote omitted.) Id., 432–
33.
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[226 Conn. 282, 290, 627 A.2d 1288 (1993)] ([t]he legisla-
ture’s intent is derived not in what it meant to say, but
in what it did say . . .’’) (Citations omitted; internal
quotation marks omitted.)).
Moreover, the fact that other remedies exist with
respect to allegations or denials in pleadings made with-
out reasonable cause and found to be untrue under-
mines any exclusivity argument relating to § 52-99 and
Practice Book § 10-5.29 For example, a ‘‘trial court, in
the exercise of its inherent authority, may impose sanc-
tions of attorney’s fees for a course of bad faith plead-
ing.’’ Fattibene v. Kealey, 18 Conn. App. 344, 344, 558
29
We also point out that rule 11 of the Federal Rules of Civil Procedure
similarly ‘‘provides a vehicle for sanctioning an attorney, a client, or both
. . . [and] is aimed at curbing abuses of the judicial system . . . .’’ (Cita-
tions omitted; footnote omitted; internal quotation marks omitted.) United
States v. International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, AFL-CIO, 948 F.2d 1338, 1343 (2d Cir.
1991). Federal courts have determined that ‘‘the Federal Rules of Civil
Procedure, including [r]ule 11, do not preempt malicious prosecution claims
predicated on federal civil actions. See, e.g., U.S. Express Lines [Ltd. v.
Higgins, 281 F.3d 383, 393 (3d Cir. 2002)]; Cohen v. Lupo, 927 F.2d 363,
365 (8th Cir. 1991); Tarkowski v. County of Lake, 775 F.2d 173, 175 (7th
Cir. 1985); McShares, Inc. v. Barry, 266 Kan. 479, [491–92, 970 P.2d 1005]
(1998) (‘Rule 11 cannot abridge the substantive state law of malicious prose-
cution, nor was it adopted to serve as a surrogate for an action based upon
a claim of malicious prosecution resulting from frivolous, harassing, or
vexatious litigation.’); Del Rio v. Jetton, 55 Cal. App. 4th 30, [37] 63 Cal.
Rptr. 2d [712] (1997) (‘Nothing in [r]ule 11 indicates an intent to occupy the
entire field of groundless suits brought for malicious purpose, nor is there
any conflict between [r]ule 11 and a damages action for such malicious
prosecution.’). As the [r]ule 11 advisory committee observed, ‘Rule 11 is
not the exclusive source for control of improper presentations of claims,
defenses, or contentions. . . . Rule 11 does not preclude a party from
initiating an independent action for malicious prosecution or abuse of
process.’ [Fed. R. Civ. P.] 11 advisory committee’s note . . . . Thus, the
United States Supreme Court is ‘confident that district courts will resist
the temptation to use [rule 11] sanctions as substitutes for tort damages.’
[Business] Guides, Inc. v. Chromatic [Communications Enterprises], Inc.,
498 U.S. 533, 553, 111 S. Ct. 922, 112 L. Ed. 2d 1140 (1991).’’ (Emphasis in
original.) Graber v. Fuqua, 279 S.W.3d 608, 613–14 (Tex.), cert. denied, 558
U.S. 880, 130 S. Ct. 288, 175 L. Ed. 2d 136 (2009). This analysis regarding
rule 11 provides further support for our determination that the sanctions
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A.2d 677 (1989). This court has ‘‘long recognized that,
apart from a specific rule of practice authorizing a sanc-
tion, the trial court has the inherent power to provide
for the imposition of reasonable sanctions, to compel
the observance of its rules. . . . Our trial courts have
the inherent authority to impose sanctions against an
attorney and his client for a course of claimed dilatory,
bad faith and harassing litigation conduct, even in the
absence of a specific rule or order of the court that
is claimed to have been violated.’’ (Internal quotation
marks omitted.) Stein v. Horton, 99 Conn. App. 477,
489, 914 A.2d 606 (2007). Additionally, under rule 3.1
of the Rules of Professional Conduct, ‘‘[a] lawyer shall
not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact
for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or
reversal of existing law.’’ See O’Brien v. Superior Court,
105 Conn. App. 774, 786–87, 939 A.2d 1223 (‘‘[W]e
recently have recognized that, although a claim need
not be based on fully substantiated facts when filed,
once it becomes apparent that the claim lacks merit,
an attorney violates rule 3.1 by persisting with the claim,
rather than withdrawing it. Brunswick v. Statewide
Grievance Committee, [103 Conn. App. 601, 619, 931
A.2d 319] (‘rule 3.1 prohibits an attorney from asserting
. . . a claim on which the attorney reasonably is unable
to maintain a good faith argument on the merits’).’’),
cert. denied, 287 Conn. 901, 947 A.2d 342 (2008).
We also find informative our Supreme Court’s state-
ments and analysis in the plaintiff’s appeal in the Smith
action, particularly its statement that a vexatious suit
was one of many remedies available to the plaintiff
for her claim ‘‘challeng[ing] the defendant’s conduct in
defending against her underinsured motorist claim.’’
available under § 52-99 and Practice Book § 10-5 do not preclude a tort
action for vexatious litigation based on the same conduct.
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Dorfman v. Smith, supra, 342 Conn. 597. In Dorfman,
the court described the plaintiff’s claim in the Smith
action that the defendant had breached the implied
covenant of good faith and fair dealing as follows: ‘‘The
plaintiff alleged that the defendant falsely responded
to the complaint, including by asserting a special
defense the defendant knew had no basis in fact, as well
as falsely responding to interrogatories and discovery
requests. As a result, the defendant ‘used intentional
misstatements, intentional misrepresentations, inten-
tionally deceptive answers, and violated established
rules of conduct in litigation,’ and ‘knowingly and inten-
tionally engaged in dishonest and sinister litigation
practices by taking legal positions that were without
factual support in order to further frustrate [the plain-
tiff’s] ability to receive benefits due [to her] under her
contract.’ According to the plaintiff, through this con-
duct, the defendant (1) engaged in unfair, deceptive,
and self-serving conduct, (2) deceitfully and maliciously
attributed responsibility for the car crash to the plain-
tiff, (3) compelled the plaintiff to resort to litigation to
obtain her benefits, and (4) filed false and misleading
answers in pleadings and discovery responses it knew
had no basis in fact to prolong litigation and to attempt
to reduce the plaintiff’s insurance benefits.’’ (Emphasis
added.) Id., 595. These allegations are very similar to
those made by the plaintiff in the present action with
respect to her claims for vexatious litigation.
Although the court in Dorfman v. Smith, supra, 342
Conn. 596, ultimately applied the litigation privilege
to bar the plaintiff’s claim for breach of the implied
covenant of good faith and fair dealing, it recognized
the ‘‘unfairness’’ in that result and, thus, stressed ‘‘the
importance of the availability of other remedies.’’ Id.,
599. In addition to pointing out the monetary sanctions
available pursuant to § 52-99, the court noted that ‘‘the
trial court has the inherent authority to sanction parties
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for litigation misconduct’’; id., 611; and that ‘‘a party
may file a motion to open a judgment on the ground
that the judgment was obtained by fraud or intentional,
material misrepresentation.’’ Id., 612. The court further
stated: ‘‘[A]s we noted in DeLaurentis, ‘[p]arties and
their counsel who abuse the process by bringing
unfounded actions for personal motives are subject to
civil liability for vexatious suit or abuse of process.’
DeLaurentis v. New Haven, supra, [220 Conn. 264].
Importantly, in the present case, upon a prior action
terminating in her favor, the plaintiff could have brought
a lawsuit for vexatious litigation. In fact, that is what she
did. These other remedies belie the plaintiff’s argument
that, if immunity is granted, this court will open the
floodgates to insurance companies using the litigation
privilege as a loophole to engage in misconduct and
deprive insureds of their contractual benefits.’’ Dorf-
man v. Smith, supra, 612. We, therefore, reject the
defendant’s claim that the plaintiff’s remedy for an
untrue or unfounded allegation in a pleading is limited
to § 52-99 and Practice Book § 10-5.
B
We now turn to the plaintiff’s claims in counts two
and three of the complaint alleging violations of the
vexatious litigation statute, § 52-568, which is titled
‘‘Damages for groundless or vexatious suit or defense.’’
Pursuant to § 52-568, ‘‘[a]ny person who commences
and prosecutes any civil action or complaint against
another, in his own name or the name of others, or
asserts a defense to any civil action or complaint com-
menced and prosecuted by another (1) without proba-
ble cause, shall pay such other person double damages,
or (2) without probable cause, and with a malicious
intent unjustly to vex and trouble such other person,
shall pay him treble damages.’’ (Emphasis added.) The
allegations of counts two and three parallel those of
count one and are based on the same alleged vexatious
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conduct of the defendant concerning its initial and three
subsequent amended answers and its denials of allega-
tions it allegedly knew to be true, with the exception
of the allegations of malice, which are absent from
count two.

In her supplemental brief to this court, the plaintiff
argues that, pursuant to the plain language of § 52-568,
her statutory vexatious litigation counts are properly
premised on the defendant’s initial and subsequent
amended answers to the complaint in the Smith action.
In making this argument, the plaintiff focuses on the
phrase ‘‘asserts a defense’’ in § 52-568 and the fact that
defenses must be set forth in a party’s answer. She also
relies on Patchen v. Delohery Hat Co., 82 Conn. 592,
594, 74 A. 881 (1909), in which our Supreme Court of
Errors stated that the defendant, in framing its answer,
had a ‘‘duty to plead the truth,’’ which is embodied in
our statutes and rules of practice. In its supplemental
brief, the defendant has not directly addressed the plain-
tiff’s argument about the plain language of the statute
and, in a single sentence addressing the statute, asserts
that § 52-568 ‘‘does not proscribe specific allegations
in a pleading if there is otherwise probable cause for
the action or the defense.’’

Our resolution of this issue requires us to construe
§ 52-568, which ‘‘presents a question of law over which
our review is plenary.’’ (Internal quotation marks omit-
ted.) Karanda v. Bradford, 210 Conn. App. 703, 711,
270 A.3d 743 (2022). Our analysis of § 52-568 is guided
by the plain meaning rule in General Statutes § 1-2z,
which provides that ‘‘[t]he meaning of a statute shall,
in the first instance, be ascertained from the text of the
statute itself and its relationship to other statutes. If,
after examining such text and considering such relation-
ship, the meaning of such text is plain and unambiguous
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and does not yield absurd or unworkable results, extra-
textual evidence of the meaning of the statute shall not
be considered.’’
Section 52-568 does not define the word ‘‘defense’’
in the context of the statute. ‘‘When a statute does not
define a term, General Statutes § 1-1 (a) directs that we
construe the term according to its commonly approved
usage, mindful of any peculiar or technical meaning it
may have assumed in the law. We may find evidence
of such usage, and technical meaning, in dictionary
definitions, as well as by reading the statutory language
within the context of the broader legislative scheme.’’
(Internal quotation marks omitted.) 777 Residential,
LLC v. Metropolitan District Commission, 336 Conn.
819, 831, 251 A.3d 56 (2020). Our Supreme Court
recently addressed the definition of the word ‘‘defense’’
as it is used in Practice Book § 23-18, which applies to
‘‘any action to foreclose a mortgage where no defense
as to the amount of the mortgage debt is interposed,’’
and does not define the term ‘‘defense.’’ Our Supreme
Court stated: ‘‘[W]e look to the commonly approved
usage of the word. See, e.g., Ugrin v. Cheshire, 307
Conn. 364, 380, 54 A.3d 532 (2012). Black’s Law Diction-
ary defines ‘defense’ as ‘[a] defendant’s stated reason
why the plaintiff or prosecutor has no valid case . . .
a defendant’s answer, denial, or plea . . . .’ Black’s
Law Dictionary (11th Ed. 2019) p. 528. . . . A ‘stated
reason’ ‘in law or fact’ that challenges a plaintiff’s right
to recover includes a legal or factual argument raised in
opposition to that party.’’ (Citation omitted.) JPMorgan
Chase Bank, National Assn. v. Malick, 347 Conn. 155,
168–69, 296 A.3d 157 (2023); see also Merriam-Webster’s
Collegiate Dictionary, supra, p. 326 (similarly defining
‘‘defense’’ as ‘‘a defendant’s denial, answer, or plea’’).
Under this commonly used and broad definition,
‘‘defense’’ includes anything that defeats the claim
asserted, whether it be by way of a special or affirmative
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defense asserted in an action,30 as well as by an answer
denying the allegations of a complaint, which is a form
of a defense to the action and is done to oppose or to
challenge the validity of the allegations of a complaint.
See Practice Book § 10-46 (‘‘[t]he defendant in the
answer shall specially deny such allegations of the com-
plaint as the defendant intends to controvert’’). We do
not find ambiguity in the language of the statute.
The concurring and dissenting opinion acknowledges
that our Supreme Court has defined the word ‘‘defense’’
to include a defendant’s answer, denial or plea, but
nonetheless concludes that the term should not be con-
strued as such in § 52-568 because ‘‘[t]he legislature
. . . did not include the term ‘denial’ in enacting or
amending § 52-568,’’ and if it had ‘‘intended to include
general denials within the ambit of § 52-568, it could
have defined the term ‘defense,’’ or it could have
enacted the statute to apply to any person who ‘‘ ‘asserts
a denial or defense to any civil action . . . .’ ’’ (Empha-
sis in original.) We reject this contention for two rea-
sons. First, when a statute or rule of practice does not
define a term, as our Supreme Court instructs, ‘‘it is
appropriate to consult contemporaneous dictionary
definitions. See, e.g., Ledyard v. WMS Gaming, Inc.,
30
‘‘Practice Book § 10-50 defines the purpose of a special defense. That
section, titled, ‘Denials; Special Defenses,’ provides in relevant part: ‘No
facts may be proved under either a general or special denial except such
as show that the plaintiff’s statements of fact are untrue. Facts which are
consistent with such statements but show, notwithstanding, that the plaintiff
has no cause of action, must be specially alleged . . . .’ Practice Book § 10-
50.’’ Kaye v. Housman, supra, 184 Conn. App. 817. ‘‘An answer and a special
defense have legally distinct functions . . . .’’ Id., 816–17. ‘‘The purpose of
a special defense is to plead facts that are consistent with the allegations
of the complaint but demonstrate, nonetheless, that the plaintiff has no
cause of action.’’ (Internal quotation marks omitted.) Id., 818. ‘‘It is axiomatic
that a special defense is not provable under a simple denial, because, by
definition, a special defense is a claim that defeats the plaintiff’s cause of
action without disproving it.’’ Bruno v. Whipple, 162 Conn. App. 186, 203,
130 A.3d 899 (2015), cert. denied, 321 Conn. 901, 138 A.3d 280 (2016).
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338 Conn. 687, 697, 258 A.3d 1268 (2021) (‘in the absence
of statutory definitions, we look to the contemporane-
ous dictionary definitions of words to ascertain their
commonly approved usage’); see also General Statutes
§ 1-1 (a) (‘[i]n the construction of the statutes, words
and phrases shall be construed according to the com-
monly approved usage of the language’).’’ Cerame v.
Lamont, 346 Conn. 422, 428, 291 A.3d 601 (2023); see
also Dunn v. Northeast Helicopters Flight Service, LLC,
346 Conn. 360, 377, 290 A.3d 780 (2023) (‘‘[i]n the
absence of statutory definitions, we again look to the
common usage of each term’’). The commonly approved
usage of the term ‘‘defense’’ is the one set forth in
Black’s Law Dictionary (12th Ed. 2024) p. 528, and Mer-
riam-Webster’s Collegiate Dictionary, supra, p. 326, not
what the concurring and dissenting opinion considers
to be ‘‘the most familiar legal sense’’ of the word ‘‘as
used by legal practitioners in this state . . . .’’ In the
absence of any indication that the term ‘‘defense’’ as
used in § 52-568 was intended to have a technical or
special meaning; see Perruccio v. Allen, 156 Conn. 282,
286, 240 A.2d 912 (1968); we see no reason to depart
from our regular practice of looking to the common
usage of a term as defined in dictionaries. Second,
because the commonly used definition of ‘‘defense’’
necessarily includes a denial, it would have been super-
fluous for our legislature to add that word to the statu-
tory language. Courts ‘‘must construe a statute as writ-
ten. . . . Courts may not by construction supply
omissions . . . or add exceptions merely because it
appears that good reasons exist for adding them. . . .
It is axiomatic that the court itself cannot rewrite a
statute to accomplish a particular result. That is a func-
tion of the legislature.’’ (Internal quotation marks omit-
ted.) Blondeau v. Baltierra, 337 Conn. 127, 143, 252
A.3d 317 (2020).
In our view, the concurring and dissenting opinion
also incorrectly takes the position that the statutory
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language—asserts a defense—‘‘refers to defenses that
are affirmatively pleaded, rather than general denials
set forth in a defendant’s answer.’’ At the outset, we
point out the familiar principle that, if the legislature
wanted to limit the type of defense to which the statute
applies—for example, to the assertion of a special or
affirmative defense—it easily could have so provided.
See Dunn v. Northeast Helicopters Flight Service, LLC,
supra, 346 Conn. 375; see also Curley v. Phoenix Ins.
Co., 220 Conn. App. 732, 769, 299 A.3d 1133 (‘‘[t]he
absence of . . . language [in a statute] is significant,
‘as it is a well settled principle of statutory construction
that the legislature knows how to convey its intent
expressly . . . or to use broader or limiting terms
when it chooses to do so’ ’’), cert. denied, 348 Conn.
914, 303 A.3d 260 (2023). Instead of using the term
‘‘special defense,’’ the legislature used the broader term
‘‘defense.’’
This is especially true, in light of the distinct functions
of an answer and special defense, both of which are
ways to ‘‘assert a defense’’ to an action. See footnote
30 of this opinion. For example, not all defenses are
special or affirmative defenses. See Shaheer v. Commis-
sioner of Correction, 207 Conn. App. 449, 461 n.6, 262
A.3d 152 (‘‘duress is a defense to a crime . . . [but]
not an affirmative defense’’ (citation omitted; internal
quotation marks omitted)), cert. denied, 340 Conn. 903,
263 A.3d 388 (2021); Pawlinski v. Allstate Ins. Co., 165
Conn. 1, 6, 327 A.2d 583 (1973) (‘‘Practice Book § 120
[now § 10-50] lists some of the defenses which must be
specially pleaded and proved’’). ‘‘As a general rule, facts
must be pleaded as a special defense when they are
consistent with the allegations of the complaint but
demonstrate, nonetheless, that the plaintiff has no
cause of action. . . . The fundamental purpose of a
special defense, like other pleadings, is to apprise the
court and opposing counsel of the issues to be tried,
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so that basic issues are not concealed until the trial is
underway.’’ (Internal quotation marks omitted.) Cough-
lin v. Anderson, 270 Conn. 487, 501, 853 A.2d 460 (2004).
Also, ‘‘[t]here is a distinction between matters which
may be proved under a general denial and matters con-
stituting special defenses [which must be specially
pleaded].’’ (Internal quotation marks omitted.) Bennett
v. Chenault, 147 Conn. App. 198, 202, 81 A.3d 1184
(2013). That distinction ‘‘was enunciated in Pawlinski
v. Allstate Ins. Co., [supra, 1], where [our Supreme
Court] observed . . . that [t]he issues to be tried may
be framed in several ways. A denial of a material fact
places in dispute the existence of that fact. Even under
a denial, a party generally may introduce affirmative
evidence tending to establish a set of facts inconsistent
with the existence of the disputed fact. . . . If, how-
ever, a party seeks the admission of evidence which is
consistent with a prima facie case, but nevertheless
would [independently] destroy the cause of action, the
new matter must be affirmatively pleaded as a special
defense.’’ (Internal quotation marks omitted.) Barrows
v. J.C. Penney Co., 58 Conn. App. 225, 233, 753 A.2d
404, cert. denied, 254 Conn. 925, 761 A.2d 751 (2000);
see also Practice Book § 10-50 (‘‘No facts may be proved
under either a general or special denial except such as
show that the plaintiff’s statements of fact are untrue.
Facts which are consistent with such statements but
show, notwithstanding, that the plaintiff has no cause
of action, must be specially alleged.’’).
In Bennett v. Chenault, supra, 147 Conn. App. 203,
for example, the defendant, by her answer, ‘‘denied
the plaintiff’s claim of negligence and raised a special
defense of comparative negligence.’’ This court stated
that ‘‘[t]he denial of negligence and the allegation of a
special defense thus constitute[d] separate and distinct
defenses, either of which [could] support the jury’s gen-
eral verdict.’’ (Emphasis added.) Id. Similarly, in Mul-
cahy v. Hartell, 140 Conn. App. 444, 446, 59 A.3d 313
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(2013), the dispositive issue before this court was
‘‘whether evidence of a plaintiff’s posttreatment con-
duct may be offered by a defendant under a general
denial for the purpose of showing that the plaintiff’s
conduct was the sole proximate cause of her injuries.’’
This court concluded that ‘‘the claim that an actor other
than the defendant caused the plaintiff’s injuries is
inconsistent with a prima facie negligence case, and,
thus, can be pursued under a general denial. The
essence of the defense at issue in the present case
was that the plaintiff was entirely responsible for her
injuries; therefore, the court correctly admitted it with-
out the assertion of a special defense’’; (emphasis
added) id., 450; and ‘‘pursuant to a general denial.’’ Id.,
452. What is evident from these cases is that a party,
by generally denying factual allegations of a complaint,
is, in effect, asserting a defense to those allegations.
The defendant has not directed us to any authority
suggesting that a denial in an answer is not a defense
or establishing that the term ‘‘defense’’ as used in § 52-
568 must be limited to special defenses. We conclude
that to do so would be contrary to the purpose of § 52-
568, which ‘‘make[s] it clear that it is the strong public
policy of this state to discourage dishonesty during the
litigation process . . . .’’ Dorfman v. Smith, supra, 342
Conn. 644 (Ecker, J., concurring in part and dissenting
in part). As we stated previously in this opinion, we
must read the term ‘‘defense’’ in § 52-568 within the
context of the broader legislative scheme. ‘‘Connecti-
cut’s vexatious litigation statute strives to deter parties
from bringing claims [or asserting defenses] without
probable cause and with malicious intent.’’ Metcalf v.
Fitzgerald, 333 Conn. 1, 29, 214 A.3d 361 (2019), cert.
denied, U.S. , 140 S. Ct. 854, 205 L. Ed. 2d 460
(2020). It serves to recognize ‘‘the right of an individual
to be free from unjustifiable litigation . . . .’’ (Internal
quotation marks omitted.) Bernhard-Thomas Building
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Systems, LLC v. Dunican, supra, 286 Conn. 553–54.
That right applies whether a party ‘‘commences and
prosecutes’’ an action without probable cause, as well
as whether a party unjustly ‘‘asserts a defense’’ to an
action without probable cause, whether by way of filing
an answer to a complaint denying allegations of a com-
plaint that are known to be true or asserting a ground-
less special defense.
Significantly, our Supreme Court has stated repeat-
edly that ‘‘[a] statutory action for vexatious litigation
under . . . § 52-568 . . . differs from a common-law
action only in that a finding of malice is not an essential
element, but will serve as a basis for higher damages.’’
(Citation omitted; emphasis added.) Falls Church
Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281
Conn. 94; see also Bernhard-Thomas Building Sys-
tems, LLC v. Dunican, supra, 286 Conn. 554;
DeLaurentis v. New Haven, supra, 220 Conn. 256;
Christian v. Iyer, 221 Conn. App. 869, 877, 303 A.3d
604 (2023). ‘‘[Vexatious suit] is the appellation given in
this [s]tate to the cause of action created by statute
. . . § 52-568 . . . for the malicious prosecution of a
civil suit . . . which [our Supreme Court has] said was
governed by the same general principles as the com-
mon-law action of malicious prosecution.’’ (Internal
quotation marks omitted.) Falls Church Group, Ltd.
v. Tyler, Cooper & Alcorn, LLP, supra, 103; see also
Embalmers’ Supply Co. v. Giannitti, 103 Conn. App.
20, 46, 929 A.2d 729 (‘‘§ 52-568 represents a statutory
codification of the common-law cause of action for
vexatious litigation’’), cert. denied, 284 Conn. 931, 934
A.2d 246 (2007).
Courts consistently have applied the continuation
theory under § 674 of the Restatement (Second) of Torts
to both statutory and common-law claims of vexatious
litigation; see Diamond 67, LLC v. Oatis, supra, 167
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Conn. App. 683 (with respect to action alleging com-
mon-law and statutory claims for vexatious litigation,
‘‘genuine issue of material fact [existed] as to each
defendant’s participation in the initiation, procurement,
and/or continuation of their respective interventions in
the plaintiff’s administrative and mandamus actions’’);
Schaeppi v. Unifund CCR Partners, supra, 161 Conn.
App. 41–42 (statutory vexatious litigation count based
on defendant’s continuing to prosecute foreclosure
action and appeal from denial of motion to open foreclo-
sure judgment); see also Rousseau v. Weinstein, supra,
204 Conn. App. 851 (action raising common-law and
statutory vexatious litigation claims alleging that
‘‘defendants lacked probable cause to commence and
to continue [a] civil action’’); and claims for vexatious
litigation have been brought on the basis of actions
apart from commencing and prosecuting a civil action
or asserting a counterclaim or special defense, although
we note that the precise issue of whether the statute
supports such actions was not before the courts in
those cases. See Diamond 67, LLC v. Oatis, supra,
668 (interventions in administrative action); Schaeppi
v. Unifund CCR Partners, supra, 41–42 (appeal from
denial of motion to open foreclosure judgment); Spilke
v. Wicklow, 138 Conn. App. 252, 261, 53 A.3d 245 (2012)
(vexatious litigation claim stemmed from filing of
motion for contempt), cert. denied, 307 Conn. 945, 60
A.3d 737 (2013);31 Perez v. D & L Tractor Trailer School,
31
We note that in Spilke v. Wicklow, supra, 138 Conn. App. 255–56, the
plaintiff alleged claims for vexatious litigation, both under the common law
and § 52-568, based on the defendant’s conduct in filing a motion for con-
tempt during divorce proceedings. Although the plaintiff argued on appeal
that all of the proceedings surrounding the divorce were vexatious, this
court disagreed and concluded that the vexatious litigation claims
‘‘stemm[ed] from the filing of the motion [for] contempt, and not from the
divorce proceedings.’’ Id., 261. The plaintiff was awarded $10,001 in damages
with respect to her common-law claim, and the trial court determined that
she was entitled to treble the damages under § 52-568, for a total award of
$30,003. Id., 256. Because the defendant did not argue on appeal that the
court abused its discretion in awarding treble damages, however, this court
did not address that issue.
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117 Conn. App. 680, 685, 981 A.2d 497 (2009) (appeal
from unemployment compensation benefits award),
cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010);
Embalmers’ Supply Co. v. Giannitti, supra, 103 Conn.
App. 49 (shareholder litigation and subsequent appeal
therefrom); Duse v. Carter, supra, 9 Conn. App. 219
(filing motion for contempt in prior marital dissolution
action without probable cause); Nutmeg Financial
Holdings, LLC v. Bachleda, supra, Superior Court,
Docket No. CV-XX-XXXXXXX-S (moving to open judgment
and appealing therefrom); Silano v. Verespy, supra, 68
Conn. L. Rptr. 438 (filing motion for summary judg-
ment).
In light of the foregoing, we conclude, under the
particular facts of this case, that the allegations of
counts two and three of the complaint concerning the
defendant’s alleged bad faith pleading in its answers in
the Smith action properly assert causes of action for
vexatious litigation pursuant to § 52-568.
Accordingly, we reject the defendant’s claim that an
action for vexatious litigation, whether under the com-
mon law or § 52-568, cannot be based on allegedly false
answers to a complaint in a prior action.
II
We now address the plaintiff’s claim that the court
erred in determining that no genuine issues of material
fact exist as to whether the defendant had probable
cause to answer the complaint in the Smith action in
the manner it did and to assert the special defense of
contributory negligence. Specifically, the plaintiff
argues that the defendant did not meet its burden, as
the party moving for summary judgment, of establishing
the absence of a genuine issue of material fact concern-
ing probable cause because it did not provide evidence
in support of its motion demonstrating that it had any
factual basis for asserting the denials in its answer as
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well as its special defense of contributory negligence.
Thus, the plaintiff argues, the burden never shifted to
her to submit documents establishing the existence of
such an issue of fact. The plaintiff’s second claim is
that the court misapplied the standard for summary
judgment when it failed to construe the evidence in
the light most favorable to the plaintiff. Because these
claims are related, we address them together.
The following general principles guide our analysis
of these claims. ‘‘[T]he legal idea of probable cause is
a bona fide belief in the existence of the facts essential
under the law for the action and such as would warrant
a person of ordinary caution, prudence and judgment,
under the circumstances, in entertaining it. . . . Proba-
ble cause is the knowledge of facts, actual or apparent,
strong enough to justify a reasonable man [or woman]
in the belief that he [or she] has lawful grounds for
prosecuting the defendant in manner complained of.
. . . Thus, in the context of a vexatious suit action, the
defendant lacks probable cause if he [or she] lacks a
reasonable, good faith belief in the facts alleged and
the validity of the claim asserted. . . . [T]he existence
of probable cause is an absolute protection against an
action for [vexatious litigation], and what facts, and
whether particular facts, constitute probable cause is
always a question of law. . . . Because the question of
whether there is probable cause in a vexatious litigation
case is a question of law, our scope of review is plenary.’’
(Citation omitted; internal quotation marks omitted.)
Rousseau v. Weinstein, supra, 204 Conn. App. 853–54.
‘‘[T]he probable cause standard applied to a vexatious
litigation action against a litigant is a purely objective
one.’’ Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn,
LLP, supra, 281 Conn. 95.
In the present case, to prevail on its motion for sum-
mary judgment, the defendant bore the initial burden
to negate, with evidence, the factual claims as framed
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by the vexatious litigation counts of the complaint. See
10 Marietta Street, LLC v. Melnick Properties, LLC,
216 Conn. App. 262, 272, 285 A.3d 82 (2022) (‘‘[o]n a
motion by the defendant for summary judgment the
burden is on [the] defendant to negate each claim as
framed by the complaint’’ (emphasis in original; inter-
nal quotation marks omitted)); see also Practice Book
§ 17-45 (providing that motion for summary judgment
must be supported by appropriate documents). The fac-
tual claims of those counts can be distilled to the follow-
ing: the defendant lacked probable cause when it (1)
asserted the special defense of contributory negligence
and (2) denied the allegations of the complaint that
stated that (a) Smith failed to stop and slow his vehicle
when he approached the intersection and collided with
the plaintiff’s vehicle, (b) the collision and resulting
injuries and damages sustained by the plaintiff were
proximately caused by Smith’s negligence, (c) the plain-
tiff suffered injuries, incurred medical bills, and lost
wages as a result of Smith’s negligence, (d) Smith was
underinsured, (e) the plaintiff complied with her duties
under the terms of her insurance policy with the defen-
dant, and (f) the defendant was liable for her damages
that exceeded the amount covered by Smith’s insurance
policy. In other words, the defendant had the burden
to demonstrate the absence of any genuine issue of
material fact that it had probable cause to assert that
special defense and to deny these various allegations.
The probable cause inquiry in the present case, there-
fore, entails a consideration of whether, on the basis
of the facts known by the defendant at the times it
asserted the special defense and denied or asserted that
it lacked sufficient information to admit or deny those
allegations, a reasonable person familiar with Connecti-
cut law would have believed that probable cause existed
for the defendant to do so. See Falls Church Group,
Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281 Conn.
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104–105. In the present case, the court based its proba-
ble cause determination on the following reasoning:
‘‘The allegations required to be [pleaded] in a negligence
action are generally not within a defendant’s knowl-
edge. In the present case, [the plaintiff’s] complaint
alleged that her injuries were proximately caused by
the defendant’s negligence. . . . [The plaintiff’s] claim
for vexatious litigation is founded on [the defendant’s]
being in possession of her medical bills and report, a
witness’ statement and the police report. These are
facts, unlike the signing of a promissory note or mort-
gage deed, that are not within a defendant’s personal
knowledge or necessarily subject to ascertainment.
Moreover, [the plaintiff’s] assertion that possession of
these documents establishes a basis to assert a basis
for vexatious suit upon the failure to admit the veracity
of the information contained in them would compel a
finding that a defendant must make a credibility deter-
mination without the benefit of subjecting witnesses to
the crucible of trial. . . . Similarly, [the plaintiff]
alleged that Smith’s negligence was a proximate cause
of her injuries. Such a combined legal and factual con-
clusion is manifoldly not within the knowledge of the
defendant. In the present case, as argued by [the defen-
dant], ‘it was necessary to fully substantiate facts and
information through the course of discovery and, as
that was done, the complaint was amended to address
what had been substantiated.’32 Given the intrinsic
32
On appeal, the defendant reiterates this argument, namely, that it is
easier for counsel to plead contributory negligence in a case than it is not
to plead it and then, after facts are developed, to move to amend the answer.
When asked during oral argument before this court to specify the evidence
in the record that supports its claim that it had probable cause to file the
special defense of contributory negligence, the defendant’s counsel stated
that the defendant’s position was that ‘‘there could be evidence developed’’
subsequent to the filing of its special defense. We disagree, as ‘‘Connecticut
is a fact pleading jurisdiction,’’ under which ‘‘allegations must be made ‘with
reasonable cause’ and with a good faith belief in their truth. See Practice
Book §§ 4-2 (b) and 10-5.’’ CIT Bank, N.A. v. Francis, 214 Conn. App. 332,
354–55, 280 A.3d 485 (2022) (Bright, C. J., concurring). Moreover, ‘‘discovery
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uncertainty of the nature of a claim of injuries proxi-
mately caused by another’s negligence,33 [the defen-
dant] had probable cause to answer the complaint in
the manner in which it did.’’ (Citation omitted; emphasis
omitted; footnotes added.).

We first conclude that the court, in making its proba-
ble cause determination, did not apply the proper legal
standard. See Ferri v. Powell-Ferri, 200 Conn. App. 63,
73, 239 A.3d 1216 (whether court applied correct legal
standard involves question of law subject to plenary
review), cert. denied, 335 Conn. 970, 240 A.3d 285
(2020). Nowhere in the court’s decision did the court
point out the specific information known to the defen-
dant at the time it filed its answer, amended answers
and special defense of contributory negligence, or that
no genuine issue of material fact existed as to the defen-
dant’s knowledge, nor did the court determine whether
a reasonable person, knowing that information, would
have had a reasonable, good faith belief in the facts
is used to develop claims that have been properly pleaded, not to create
them.’’ Id., 357; see also Somers v. Chan, supra, 110 Conn. App. 535 (‘‘[o]ur
rules of practice require all allegations [in pleadings] to be founded on a
reasonable basis’’). Thus, the assertion of an allegation or special defense
with no reasonable basis for doing so, and the use of discovery to see if
the claim can be substantiated and amend the complaint if it cannot, is
contrary to our pleading requirements. See Practice Book § 10-5 (‘‘[a]ny
allegation or denial made without reasonable cause and found untrue shall
subject the party pleading the same to the payment of such reasonable
expenses . . . as may have been necessarily incurred by the other party
by reason of such untrue pleading’’).
33
We note that the Smith action did not involve an allegation of negligence
against the defendant. Rather, the plaintiff alleged negligence against Smith,
who was underinsured and ultimately settled with the plaintiff for the limit
of his policy, and the plaintiff alleged a claim of breach of contract against
the defendant, which was brought into the action for purposes of providing
coverage pursuant to the underinsured motorist provision of the plaintiff’s
insurance policy with the defendant. Significantly, the plaintiff has not based
this vexatious ligation action on the defendant’s failure to admit its own
negligence in the Smith action, and, thus, the defendant’s claims to that
effect are without merit.
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alleged in the answers and the validity of the special
defense of contributory negligence asserted. We agree
with the plaintiff that the court should have looked
‘‘critically at each representation at issue alongside the
information within [the defendant’s] knowledge at the
time it made the representation,’’ and determined
whether any genuine issues of material fact existed as
to the defendant’s knowledge.
The court focused its analysis on whether genuine
issues of material fact existed as to the cause of the
plaintiff’s injuries. We acknowledge that, generally, the
truth of the allegations pleaded in a negligence action
likely will not be within a defendant’s knowledge and
that it is typically necessary to substantiate information
and facts regarding a party’s claimed injuries. Indeed, it
will be a rare case in which a party’s denial of allegations
concerning causation of injuries will give rise to a vexa-
tious litigation claim. For that reason, it is understand-
able why the court focused its analysis on whether
genuine issues of material fact existed as to the cause
of the plaintiff’s injuries, which is almost always dis-
puted in a negligence action, even when there is no
dispute as to the cause of the accident.
The present case, however, is not a typical negligence
action, and, thus, the court’s conclusion that the allega-
tions of the complaint in the Smith action concerned
matters ‘‘generally not within a defendant’s knowledge’’
does not take account of all of the factual circumstances
of this case. By limiting its analysis to the issue of the
causation of the plaintiff’s injuries, the court did not
take into account the defendant’s denials of allegations
that Smith failed to stop and slow his vehicle when
he approached the intersection and collided with the
plaintiff’s vehicle, the collision was caused by Smith’s
negligence, Smith was underinsured, the plaintiff com-
plied with her duties under the terms of her insurance
policy with the defendant, and the defendant was liable
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under the plaintiff’s insurance policy for her damages
that exceeded the amount covered by Smith’s insurance
policy, as well as the defendant’s assertion of the special
defense of contributory negligence.
As we stated previously in this opinion, our rules of
practice require that allegations, including denials, be
made on a reasonable basis; see Practice Book § 10-5;
and a defendant, in an answer, ‘‘shall specially deny
such allegations of the complaint as the defendant
intends to controvert, admitting the truth of the other
allegations, unless the defendant intends in good faith
to controvert all the allegations, in which case he or she
may deny them generally.’’ (Emphasis added.) Practice
Book § 10-46. In other words, ‘‘[i]f the allegation is true
in part, that part should be admitted and the balance
denied. Evasive denials are not to be countenanced.’’
2 J. Kaye & W. Effron, supra, Form 105.3, authors’ com-
ment, p. 155. As we stated previously in this opinion,
in the present case the defendant did just that in its
December 15, 2016 answer when it admitted the portion
of paragraph 7 of the amended complaint in the Smith
action alleging that the accident was caused by ‘‘Smith’s
failure to keep a proper and reasonable lookout for
other motor vehicles upon the roadway,’’ but asserted
that it was without sufficient information to either admit
or deny the remaining allegations of that paragraph. In
its initial and amended answers, however, the defendant
asserted blanket denials of allegations in the Smith
action, only a portion of which related to causation of
the plaintiff’s injuries, and the court did not take into
consideration whether the defendant had probable
cause to deny the portion of the allegations not relating
to causation of the plaintiff’s injuries, or the special
defense of contributory negligence. As a result, the
court did not consider if genuine issues of material fact
existed as to whether the defendant had probable cause
for answering the complaint in the manner in which it
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did with respect to these other allegations and asserting
the special defense, as the defendant’s own internal
investigation indicated that Smith was 100 percent
responsible for causing the accident.
Moreover, in making its probable cause finding, the
court does not appear to have considered each of the
specific factual allegations in the complaint. This is
apparent from the court’s decision, which lacks refer-
ences to many of the allegations concerning the infor-
mation of which the defendant was aware when it filed
its answer, amended answers, and special defense. Nor
did the court consider whether the defendant submitted
any evidence in support of its motion for summary
judgment to rebut the plaintiff’s allegations. The plain-
tiff also asserts that, if the court had applied the proper
standard and viewed the evidence in the light most
favorable to the plaintiff, ‘‘it would have seen that there
were, at the very least, material issues of fact with
respect to whether [the defendant] had probable cause
for each of its representations in the pleadings and its
special defense . . . .’’ We agree.
The court did refer in its decision to the allegation
that the defendant’s ‘‘own investigation concluded that
. . . Smith was ‘100 [percent] liab[le]’ for the accident’’
but, nevertheless, found probable cause for the defen-
dant to assert the special defense of contributory negli-
gence without addressing that allegation. Additionally,
although the court did mention that ‘‘[the plaintiff’s]
claim for vexatious litigation [was] founded on [the
defendant’s] being in possession of her medical bills
and report, a witness’ statement and the police report,’’
it excluded from that list of supporting documents a
recorded statement the defendant had taken from the
plaintiff and, nonetheless, concluded that the docu-
ments were facts ‘‘not within a defendant’s personal
knowledge . . . .’’ In Dorfman v. Smith, supra, 342
Conn. 586, our Supreme Court noted that, through the
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course of the defendant’s investigation of the plaintiff’s
claim, ‘‘the defendant acquired the police report regard-
ing the collision, the plaintiff’s recorded statement, and
the recorded statement of . . . Guman, a witness to
the collision who was not listed in the police report.
The report and the statements all noted Smith’s failure
to stop at the stop sign. Based on this information,
two claims specialists employed by the defendant both
concluded that Smith was 100 percent liable for the
collision and noted their findings in the claim file.’’
The trial court in the present case concluded that the
defendant lacked knowledge of the contents of those
documents. There is nothing in the record, however,
to support the court’s determination, especially given
that the defendant, as part of its business practice,
undertook a lengthy and in-depth investigation into the
circumstances of the accident, which took place over
the course of one year prior to when the defendant was
brought into the Smith action.34 Moreover, the court’s
determination concerning the information within the
defendant’s knowledge or of which it was aware
amounts to a factual finding regarding a disputed issue
in the case; see generally Roger B. v. Commissioner of
Correction, 190 Conn. App. 817, 839, 212 A.3d 693
(habeas court made factual finding about what peti-
tioner knew), cert. denied, 333 Conn. 929, 218 A.3d 70
(2019), and cert. denied, 333 Conn. 929, 218 A.3d 71
(2019); Winchester v. McCue, 91 Conn. App. 721, 729,
34
As we stated previously in this opinion, in the prior appeal in the Smith
action, our Supreme Court, in construing the allegations of the complaint
in the light most favorable to the plaintiff, noted that, ‘‘[i]n answering the
complaint [on May 17, 2016], the defendant pleaded that either it denied or
did not have sufficient information to admit the allegations that Smith had
failed to stop at a stop sign, causing the collision and the plaintiff’s resulting
injuries. The defendant also asserted a special defense of contributory negli-
gence, even though it knew this to be false.’’ (Emphasis added.) Dorfman
v. Smith, supra, 342 Conn. 587. This further supports our determination
that the court in the present case did not construe the allegations of the
complaint in the light most favorable to the plaintiff.
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882 A.2d 143 (there was sufficient factual basis for
court’s finding regarding independent knowledge pos-
sessed by parties), cert. denied, 276 Conn. 922, 888
A.2d 91 (2005); which is not appropriate on summary
judgment.
Additionally, in the present case, the defendant did
not submit documentary evidence or affidavits35 demon-
strating the absence of a genuine issue of material fact
that it lacked knowledge of the contents of the docu-
ments and information gathered as part of its investiga-
tion, or demonstrating that it had an objectively reason-
able, good faith belief in the facts alleged in its answer
and amended answers, or in the validity of the special
defense of contributory negligence asserted.36 See Rock-
well v. Rockwell, 178 Conn. App. 373, 397–98, 175 A.3d
35
Nothing in DeStefano’s affidavit negates the plaintiff’s allegation that
the defendant knew from its investigation that Smith was 100 percent liable
for the accident when it filed its special defense asserting that the plaintiff
was contributorily negligent. There are only two averments in the affidavit
that might be construed as relating to the issue of probable cause: (1)
‘‘Attorney Joseph Grippe filed an answer and special defenses to the
amended complaint on May 17, 2016,’’ and (2) ‘‘[the defendant] relied on
the skill and judgment of Attorney Grippe to draft an appropriate response
to the amended complaint . . . .’’ The defendant, however, did not assert
a special defense of advice of counsel, which is a complete defense to a
vexatious litigation claim; see Kazemi v. Allen, supra, 214 Conn. App. 117;
although it did argue in its memorandum of law in support of its motion
for summary judgment that it relied on the advice of counsel. Nevertheless,
the court did not address that argument in light of its determination that
the defendant had probable cause to answer the complaint in the manner
in which it did. On appeal, the defendant asserts in its brief that its responsive
pleadings in the Smith action were prepared and filed by counsel, and that
it ‘‘relied on the independent judgment of counsel to draft an appropriate
response to the amended complaint in the [Smith action].’’ Aside from these
few assertions, the defendant cited to no authority and provided no analysis
or argument in support of a reliance on the advice of counsel claim, or
concerning the court’s failure to address that claim in its decision granting
the motion for summary judgment. Accordingly, in this appeal, we deem
any such claim relating to advice of counsel abandoned. See, e.g., Fraser
Lane Associates, LLC v. Chip Fund 7, LLC, 221 Conn. App. 451, 472, 301
A.3d 1075 (2023).
36
The concurring and dissenting opinion relies on the amount of the jury
award in the Smith action as evidence of probable cause. We do not believe
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1249 (2017), cert. denied, 328 Conn. 902, 177 A.3d 563
(2018); see also Martin Franchises, Inc. v. Cooper U.S.,
Inc., 164 Conn. App. 486, 501, 137 A.3d 882 (2016)
(‘‘[w]here the affidavits of the moving party do not
affirmatively show that there is no genuine issue of
material fact as to all relevant issues in the case, sum-
mary judgment should be denied’’). Although the ques-
tion of what facts constitute probable cause is one of
law, over which our review is plenary; see Falls Church
Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 281
Conn. 94; when the underlying facts that form the basis
that the amount of the jury award in the Smith action is relevant to the
issue in this case, which concerns whether the defendant met its burden,
in moving for summary judgment, of establishing the absence of any genuine
issue of material fact that it had probable cause to answer the complaint
in the Smith action in the manner in which it did and to assert the special
defense of contributory negligence. As we have stated in this opinion, the
probable cause determination ‘‘entails a consideration of whether, on the
basis of the facts known by the defendant at the times it asserted the special
defense and denied or asserted that it lacked sufficient information to admit
or deny those allegations, a reasonable person familiar with Connecticut
law would have believed that probable cause existed for the defendant to
do so.’’ (Emphasis added.) In light of our conclusion that we cannot make
a determination of whether probable cause exists in the exercise of our
plenary review under the circumstances of this case, in which the underlying
facts that form the basis for probable cause are disputed and factual findings
must be made by a trier of fact, we do not agree that the amount of damages
awarded in the Smith action should be viewed as evidence that the defendant
had probable cause to deny the material allegations of the complaint. That
is especially true given that probable cause may ultimately be found as to
the defendant’s denials of allegations concerning causation of injuries, but
also may be found lacking with respect to the defendant’s denials of allega-
tions concerning the cause of the accident. Nevertheless, we do note that
the concurring and dissenting opinion’s analysis on this point fails to recog-
nize that the jury awarded the plaintiff damages in the amount of $169,928,
which amounts to $30,072 less than the $200,000 she sought, not $80,072.
Following the jury’s verdict, the parties entered into a stipulation that, after
a reduction of the tortfeasor’s payment of $50,000 to the plaintiff, judgment
could enter in the amount of $119,928. The fact that the defendant’s obliga-
tion to pay the plaintiff was reduced by the $50,000 that the plaintiff already
had received in settlement from Smith had no bearing on the jury’s determina-
tion that the plaintiff had established damages in the amount of $169,928,
which the plaintiff received from the defendant and Smith combined.
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for probable cause are disputed and factual findings
relating thereto must be made by the trier of fact, we
cannot make a determination of whether probable
cause exists in the exercise of our plenary review, and
summary judgment is not appropriate. See Rozbicki v.
Sconyers, supra, 198 Conn. App. 791 (trial court improp-
erly granted defendant’s motion for summary judgment
because genuine issue of material fact existed as to
whether defendant had probable cause to assert special
defense); Cody Real Estate, LLC v. G & H Catering,
Inc., 219 Conn. App. 773, 792, 296 A.3d 214 (it is not
within province of Appellate Court to make factual find-
ings), cert. denied, 348 Conn. 910, 303 A.3d 11 (2023).

The present case does not involve a situation in which
the facts giving rise to the existence of probable cause
are undisputed; rather, a factual finding must be made,
at a minimum, as to the defendant’s knowledge at the
time it filed its answer, amended answers, and special
defense of contributory negligence in the Smith action.
As our Supreme Court explained in DeLaurentis v. New
Haven, supra, 220 Conn. 252–53: ‘‘The third requirement
for a vexatious suit action is that the defendant’s claims
lacked ‘probable cause.’ Whether the facts are sufficient
to establish the lack of probable cause is a question
ultimately to be determined by the court, but when the
facts themselves are disputed, the court may submit
the issue of probable cause in the first instance to a
jury as a mixed question of fact and law.’’ See Falls
Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP,
supra, 281 Conn. 90–92 (trial court bifurcated issue of
probable cause, conducted evidentiary hearing and then
concluded that probable cause existed); Rockwell v.
Rockwell, 196 Conn. App. 763, 771, 230 A.3d 889 (2020)
(genuine issue of material fact had to be resolved to
determine whether defendant had probable cause to
pursue action); see also Liu v. Tangney, Docket No.
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3:19-CV-894 (OAW), 2022 WL 4367594, *7 (D. Conn. Sep-
tember 21, 2022) (parties had material disagreement
about whether party’s knowledge of facts would satisfy
probable cause standard and court could not determine
whether party acted without probable cause without
first making credibility determination, which was not
appropriate on summary judgment).
Accordingly, on the basis of our review of the record,
viewed in the light most favorable to the plaintiff, we
conclude that the defendant did not meet its burden,
as the party moving for summary judgment, of showing
the absence of an issue of material fact as to whether
it had probable cause for pleading in the manner in
which it did in the Smith action. Therefore, the court
improperly granted the defendant’s motion for sum-
mary judgment as to the vexatious litigation counts
of the complaint on the basis of its probable cause
determination.37 See Rozbicki v. Sconyers, supra, 198
Conn. App. 781 (defendants were not entitled to sum-
mary judgment as to issue of probable cause because
genuine issue of material fact existed as to party’s
knowledge).
The next issue we must address is the proper remedy.
As we stated previously in this opinion, the defendant
raised five grounds in support of its motion for summary
judgment. Because the court based its decision granting
the motion solely on the basis of its finding of probable
cause, as to which we have determined the court
applied an improper standard and will require factual
findings that are not appropriate on summary judgment,
the court never addressed the other four arguments
37
In light of our determination that the court improperly granted the
defendant’s motion for summary judgment as to the counts of the complaint
alleging vexatious litigation, we need not address the plaintiff’s claim that
the court improperly denied her the ability to obtain meaningful discovery
related to her claims of vexatious litigation prior to granting the defendant’s
motion for summary judgment.
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raised by the defendant in support of its motion for
summary judgment. On appeal, the defendant has not
argued that, if this court reverses the summary judg-
ment in its favor, the matter should be remanded for
further proceedings on its remaining claims that were
never addressed by the trial court. Nevertheless, we
believe that the proper course of action here is to
remand the case to the trial court for further proceed-
ings to address the remaining grounds raised in the
defendant’s motion for summary judgment. See gener-
ally Kellogg v. Middlesex Mutual Assurance Co., 211
Conn. App. 335, 356–57, 272 A.3d 677 (2022) (when trial
court did not address arguments raised in support of
motion for summary judgment due to court’s improper
reliance on decisions relating to arbitration award and
motion to dismiss, appropriate course for Appellate
Court was to remand case for further proceedings on
motion); Teodoro v. Bristol, 184 Conn. App. 363, 383–84,
195 A.3d 1 (2018) (reversing summary judgment ren-
dered in favor of defendant and remanding matter for
further proceedings on motion); Greene v. Keating, 156
Conn. App. 854, 860–62, 115 A.3d 512 (2015) (because
trial court decided motions for summary judgment on
ground not raised by parties and, essentially, did not
rule on parties’ motions, it was appropriate to remand
matter for trial court’s consideration of matter in first
instance); see also Singhaviroj v. Board of Education,
124 Conn. App. 228, 236, 4 A.3d 851 (2010) (‘‘[b]ecause
a res judicata or collateral estoppel claim is the ‘civil
law analogue’ to a double jeopardy challenge, a court
faced with such a claim must resolve that question
before trial may commence,’’ and, therefore, court
improperly denied motions for summary judgment with-
out determining whether genuine issue of material fact
existed with respect to res judicata and collateral estop-
pel defenses).
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III
The plaintiff’s next claim is that the court did not
engage in the proper analysis when it granted the defen-
dant’s motion for summary judgment as to the counts of
her complaint alleging violations of CUTPA and CUIPA.
Specifically, the plaintiff argues that the court, in its
decision, did not address the CUTPA/CUIPA claims in
any meaningful way in that it did not articulate the
necessary elements of a cause of action pursuant to
CUTPA or CUIPA, and did not discuss her allegations
relating to those claims. Instead, the plaintiff argues, the
court stated that its determination regarding probable
cause rendered it unnecessary to address the other
claims, even though probable cause is not a necessary
predicate to a claim pursuant to CUTPA or CUIPA. The
defendant, relying on Dorfman v. Smith, supra, 342
Conn. 616, argues that the court properly granted its
motion for summary judgment because the plaintiff’s
CUTPA claims, which are based on alleged violations of
CUIPA, are barred by the doctrine of absolute immunity
under the litigation privilege. We agree with the defen-
dant.
We first briefly set forth the basis for our Supreme
Court’s decision in Dorfman concluding that the plain-
tiff’s CUTPA claim in that case was ‘‘barred by the
doctrine of absolute immunity under the litigation privi-
lege.’’ Id. Specifically, the court stated: ‘‘A business prac-
tice of responding falsely to discovery requests, to the
extent it involves ‘[m]isrepresenting pertinent facts or
insurance policy provisions relating to coverages at
issue,’ is prohibited under CUIPA. General Statutes
§ 38a-816 (6) (A). The parties have not cited any case
law—from this court, the federal courts, or sister state
courts—that has addressed whether the litigation privi-
lege applies to claims for violating statutes prohibiting
unfair insurance practices. In our own research, we
have found only one case addressing this issue. The
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United States District Court for the Eastern District of
Pennsylvania, in Harrison v. Nationwide Mutual Fire
Ins. Co., 580 F. Supp. 133, 136 (E.D. Pa. 1983), and its
progeny, held that, when an unfair insurance practices
claim is premised on pleadings or documents filed in
and relevant to an underlying judicial proceeding, the
conduct is absolutely privileged, even if the statements
were made falsely or maliciously.

‘‘The plaintiff argues, however, that absolute immu-
nity would undermine the legislative intent of CUIPA,
which is to hold insurers accountable for misrepresent-
ing facts relating to coverage issues. In essence, the
plaintiff argues that CUIPA abrogates absolute immu-
nity as to the conduct alleged under § 38a-816 (6). Con-
trary to the plaintiff’s argument, CUIPA does not explic-
itly abrogate absolute immunity. Although § 38a-816 (6)
in fact prohibits the business practice of misrepresent-
ing facts relating to coverage issues, CUIPA does not
impose liability for this conduct by authorizing a private
right of action but, instead, limits the remedy under
that act to administrative action by the Commissioner
of Insurance. Rather than establishing that immunity
should be abrogated, § 38a-816 shows that the legisla-
ture prescribed remedies other than civil liability for
deterring and curing the alleged conduct, and such rem-
edies are available to the plaintiff in the present case.
Additionally, the legislature is aware of both this court’s
precedent regarding the applicability of the litigation
privilege to litigation conduct, as well as the various
other tools available to the court to regulate and police
litigation misconduct. See, e.g., Chadha v. Charlotte
Hungerford Hospital, [272 Conn. 776, 793 n.21, 865 A.2d
1163 (2005)] (‘the legislature is presumed to be aware of
prior judicial decisions involving common-law rules’).
If the legislature thought that the particular litigation
conduct at issue—filing false discovery responses—had
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become such a systemic problem that neither the judi-
ciary nor the Commissioner of Insurance has been able
to police it, the legislature would have been explicit
in abrogating the immunity afforded by the litigation
privilege.

‘‘Nevertheless, our case law makes clear that an
insurer may be held liable under CUTPA for conduct
proscribed by § 38a-816 (6). See Mead v. Burns, 199
Conn. 651, 663, 509 A.2d 11 (1986) (‘it is possible to
state a cause of action under CUTPA for a violation
of CUIPA’). That does not necessarily mean that the
legislature intended to abrogate a party’s absolute
immunity from CUTPA claims based on a business prac-
tice of filing false discovery responses. Although there
is minimal case law regarding CUIPA and the litigation
privilege, there is a wealth of case law regarding CUTPA
and the litigation privilege. Courts consistently have
applied the litigation privilege to CUTPA claims prem-
ised on false communications made during and relevant
to an underlying judicial proceeding. See, e.g., Simms
v. Seaman, [308 Conn. 523, 561–62, 69 A.3d 880 (2013)]
(discussing federal case law that consistently has held
that CUTPA claims premised on false communications
made during and relevant to underlying judicial pro-
ceeding are barred by litigation privilege); Bruno v.
Travelers Cos., [172 Conn. App. 717, 722, 727–29, 161
A.3d 630 (2017)] (CUTPA claim against insurance com-
panies was barred by litigation privilege); Tyler v.
Tatoian, [164 Conn. App. 82, 86–87, 93–94, 137 A.3d
801] (CUTPA claim against attorney for communica-
tions made in course of prior judicial proceeding was
barred by litigation privilege) [cert. denied, 321 Conn.
908, 135 A.3d 710 (2016)]. These holdings are in line
with case law from other jurisdictions, the majority
of which have applied the litigation privilege to both
common-law and statutory causes of action, including
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claims for unfair trade practices brought pursuant to
the jurisdiction’s analogue to CUTPA. . . .
‘‘Under this precedent, the litigation privilege bars
CUTPA claims, like the claim at issue, premised solely
on general allegations of intentionally false discovery
responses because these claims merely challenge the
making of false statements. Additionally, there are other
remedies available to deter the alleged conduct. See
Tyler v. Tatoian, supra, 164 Conn. App. 93–94. This does
not mean, however, that a defendant enjoys absolute
immunity from all CUTPA claims under the litigation
privilege, even those premised on a violation of CUIPA.
Rather, we merely hold that this specific claim—a busi-
ness practice of filing false discovery responses—is
afforded absolute immunity. We recognize that the leg-
islature intended to prohibit certain unfair and decep-
tive business practices by enacting CUTPA and CUIPA,
but the plaintiff has not cited, and we have not discov-
ered, any provision of these statutes that explicitly abro-
gates the common-law litigation privilege, which, histor-
ically, has been applied to false and malicious
statements made during and relevant to judicial pro-
ceedings. Our holding leaves open the possibility that
other CUTPA claims may not be barred by absolute
immunity under the litigation privilege. Thus, we con-
clude that the litigation privilege bars the plaintiff’s
CUTPA-CUIPA claim.’’ (Citations omitted; footnote
omitted.) Dorfman v. Smith, supra, 342 Conn. 617–20.
In the present case, the plaintiff alleges violations of
CUTPA based on a violation of CUIPA in counts four
and five of the complaint. Specifically, both counts
incorporate the allegations of paragraphs 1 through 64
of count two, which alleges a claim for statutory vexa-
tious litigation. Thus, counts four and five are based
on the same conduct underlying the vexatious litigation
claims, namely, the defendant’s conduct in the Smith
action of denying allegations of the complaint that it
knew to be true and asserting a special defense of
contributory negligence that it knew to be false. Count
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four further alleges that the defendant’s conduct, as
set forth, violates CUIPA in that ‘‘the defendant made,
published, and disseminated statements before the pub-
lic with respect to the business of insurance that it
knew to be untrue, deceptive, or misleading, in violation
of . . . § 38a-816 (2),’’ and that such violations caused
the plaintiff an ascertainable loss and damages.38 Count
five alleges a business practice by the defendant of
insurance misconduct by filing false pleadings and lists
thirteen other cases in which the defendant was alleged
to have failed to admit allegations it knew to be true
in its answer to a complaint and pleaded an affirmative
defense it knew to be false. Count five further alleges
that the defendant’s general business practice violates
§ 38a-816 (6) of CUIPA in that the defendant misrepre-
sents facts, and that the plaintiff suffered an ascertain-
able loss and damages.
We fail to see how these allegations of a business
practice of filing false pleadings differ in any meaningful
way from the alleged business practice of responding
falsely to discovery requests underlying the CUTPA
claim at issue in Dorfman v. Smith, supra, 342 Conn.
617–20. In determining that the CUTPA claim was
barred by the litigation privilege, our Supreme Court
relied on precedent from other courts, which ‘‘consis-
tently have applied the litigation privilege to CUTPA
claims premised on false communications made during
and relevant to an underlying judicial proceeding.’’ Id.,
618. Although our Supreme Court left ‘‘open the possi-
bility that other CUTPA claims may not be barred by
38
Notably, the damages claimed by the plaintiff in the present case as a
result of the defendant’s alleged CUTPA/CUIPA violations are identical to
the damages the plaintiff claimed to have sustained for the defendant’s
CUTPA/CUIPA violation in the Smith action, and included damages for ‘‘(a)
[w]rongfully, intentionally, and maliciously withholding money due to [the
plaintiff]; (b) [c]ausing [the plaintiff] to suffer extreme upset, fear, anger,
frustration, and distress as a direct result of the defendant’s intentional and
malicious acts; (c) [c]ausing [the plaintiff] to incur unnecessary legal fees
and expenses; and (d) [d]epriving [the plaintiff] of her insurance benefits.’’
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absolute immunity under the litigation privilege’’; id.,
620; the present case does not present such a situation.
The allegations underlying the plaintiff’s CUTPA/CUIPA
claims in the present case are based on alleged false
representations and pleadings of the defendant in an
underlying judicial proceeding. Moreover, the plaintiff
has not directed this court to any statutory provision
abrogating the common-law litigation privilege, ‘‘which,
historically, has been applied to false and malicious
statements made during and relevant to judicial pro-
ceedings.’’ Id.
Although we agree with the plaintiff that the court did
not apply the correct standard in rendering summary
judgment as to the CUTPA/CUIPA counts of her com-
plaint, as the court’s probable cause determination was
not dispositive of these counts, nonetheless, we affirm
the summary judgment rendered in favor of the defen-
dant on these counts on the alternative ground that the
claims in counts four and five are barred by the litigation
privilege. ‘‘[I]t is axiomatic that [an appellate court] may
affirm a proper result of the trial court for a different
reason. . . . Silano v. Cooney, 189 Conn. App. 235, 241
n.6, 207 A.3d 84 (2019); see also Helvering v. Gowran,
302 U.S. 238, 245, 58 S. Ct. 154, 82 L. Ed. 224 (1937)
(the rule is settled that if the decision below is correct,
it must be affirmed, although the lower court relied
upon a wrong ground).’’ (Internal quotation marks omit-
ted.) Tracey v. Miami Beach Assn., 216 Conn. App. 379,
396 n.19, 288 A.3d 629 (2022), cert. denied, 346 Conn.
919, 291 A.3d 1040 (2023).
The judgment is reversed only with respect to the
granting of the defendant’s motion for summary judg-
ment as to the vexatious litigation counts of the com-
plaint and the case is remanded for further proceedings
consistent with this opinion; the judgment is affirmed
in all other respects.
In this opinion ALVORD, J., concurred.