The plaintiff appealed, claiming that the trial court erred in applying the doctrine of absolute immunity.

Arguing before the high court, the plaintiff said immunity did not apply because all three counts were "premised on the defendant's improper use of the courts," and statutes and case law "establish a public policy against applying the litigation privilege to the alleged conduct."

During arguments on April 28, 2021, Justice Andrew J. McDonald questioned why the defendant claimed contributory negligence as a special defense when it had no facts to indicate the plaintiff had acted improperly.

"Usually, you have to have facts with a basis to assert that," McDonald said. "It sounds like you're saying it's always there. I mean you have an investigation that says, '100% the insured is at fault.' And you're telling us that, in fact I think it says later in your brief, that's the 'standard of care.' Actually, it would be malpractice not to plead contributory negligence?"

Philip T. Newbury Jr., representing Liberty Mutual, responded: "Even if that investigation is pretty thorough, you still don't know all of the facts. There is going to be discovery in the case, you have to answer and file your special defenses before you conduct your discovery."

Ultimately, the Supreme Court affirmed the judgment of the trial court dismissing Dorfman's claims against Liberty Mutual, based on a determination that the litigation privilege deprived the court of subject-matter jurisdiction.

The decision was written by Justice Gregory T. D'Auria, with Chief Justice Richard A. Robinson and Justices Andrew J. McDonald and Christine E. Keller concurring. Justice Steven D. Ecker dissented.

Dorfman was represented by Proloy K. Das of Murtha Cullina, who called the opinion "troubling."

"It expressly holds that 'a business practice of filing false discovery responses is afforded absolute immunity,'" Das said. "Justice Ecker's dissent is correct. An insurance company's bad acts shouldn't be immunized."

The decision stemmed from a negligence suit that Dorfman filed against Joscelyn Smith, seeking damages for injuries she suffered in a motor vehicle crash in 2014.

Later, she added Smith's insurer, Liberty Mutual, as a defendant, alleging breach of contract for violating the underinsured motorist coverage provisions of her automobile insurance policy.

At trial, the defendant admitted liability on the breach-of-contract claim, and a jury awarded the plaintiff $169,928.

Dorfman amended her complaint to add claims against Liberty Mutual for breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and violations of CUTPA.

Liberty Mutual found Smith, who failed to stop at a stop sign, "100% at fault," and made notations of its finding in the claim file. However, the company withheld its file notes from its attorneys, the lawsuit said.

The defendant pleaded, in an answer to the complaint, that it denied or did not have sufficient information to admit the plaintiff's allegations, and asserted a special defense of contributory negligence even though it knew that it was without a basis in fact, court documents said.

The defendant also provided false responses to the plaintiff's discovery requests, including that it did not know of the existence of a witness, or whether any recorded statements of that witnesses existed.

The plaintiff alleged that the defendant "used intentional misstatements, intentional misrepresentations, intentionally deceptive answers and violated established rules of conduct in litigation," and "knowingly and intentionally engaged in dishonest and sinister litigation practices by taking legal positions that were without factual support" to try to prevent the plaintiff from receiving the benefits owed to her.

The Supreme Court viewed the case through the lens of Simms v. Seaman, which limited the application of the litigation privilege for abuse of process, vexatious litigation and malicious prosecution.

The court found that breach of the covenant of good faith and fair dealing "in general does not challenge the purpose of an underlying judicial proceeding." It also said "allegations of the improper use of judicial procedure do not satisfy the requirement that the plaintiff's cause of action must itself challenge the purpose of the underlying litigation or litigation procedure."

"In sum, because the plaintiff's claim for breach of the implied covenant of good faith and fair dealing is premised on false communications, does not challenge the purpose underlying a judicial proceeding, is more akin to a claim for defamation or fraud, and may be addressed by other remedies, we conclude that the trial court properly applied the litigation privilege," the decision said.

The plaintiff also claimed that Liberty Mutual violated CUTPA, which is "a remedial statute that broadly prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce," according to the decision.

The court disagreed, saying there were "no allegations in the plaintiff's complaint that this conduct occurred with such frequency as to constitute a general business practice."