Conn. Civ. Jury Instr. 3.13-5

We have a statute that provides in part as follows: Any person who commences and prosecutes

any civil action or complaint against another, in his own name or the name of others (1) without

probable cause, shall pay such other person double damages [<insert if applicable:> or (2)

without probable cause, and with a malicious intent unjustly to vex and trouble such other

person, shall pay him treble damages]. In this case, the plaintiff <name of plaintiff> seeks to

recover damages from the defendant <name of defendant> for vexatious litigation based upon

<name of defendant>’s alleged commencement and prosecution of a prior civil action entitled

<title of underlying civil action or proceeding>, which I will refer to as “the underlying action.”

To prevail under either subsection of this statute, <name of plaintiff> must prove four essential

elements by a fair preponderance of the evidence:

1. that <name of defendant> commenced and prosecuted the underlying action

against the plaintiff, [either in <name of defendant>’s own name or in the

name of another person or entity];

2. that <name of defendant> commenced and prosecuted the

underlying action without probable cause;

3. that the underlying action was finally terminated in a manner favorable

to <name of plaintiff>;

and

4. that <name of defendant>’s commencement and prosecution of the underlying

action against <name of plaintiff> caused <name of plaintiff> to suffer at least

some of the injuries or losses.

I will discuss these essential elements with you in detail before discussing the issue of damages.

Prosecution of underlying action or proceeding

<Name of plaintiff> claims that <name of defendant> commenced the underlying action against

<name of plaintiff> on or about <date of commencement of underlying action>, and thereafter

prosecuted it against <name of plaintiff>. By “prosecute,” I mean that <name of defendant>

pursued the underlying action against <name of plaintiff>.

Without probable cause

A person has probable cause to commence or prosecute a civil action on a claim of <claim made

in underlying action> when such person has knowledge of facts, actual or through reasonable

inference, strong enough to justify a reasonable person in the belief that such person has lawful

grounds for prosecuting the claim in the manner complained of.

A person has lawful grounds for

prosecuting a claim when such person has a genuine belief in the existence of facts that support

each essential element of that claim, when those facts would warrant a person of ordinary

caution, prudence and judgment, under the circumstances, to entertain that belief.

Under our law, one essential element of <name of defendant>’s claim of <claim made in

underlying action> in the underlying action, was that <name and describe essential element of

claim presented in underlying action>. <Name of plaintiff> here alleges and has sought to prove

that when <name of defendant> commenced and prosecuted the underlying action, <name of

defendant> lacked probable cause to do so because <name of defendant> lacked knowledge of

facts sufficient to justify a reasonable person in believing <restate essential element of claim

presented in underlying action>.

<Discuss facts in support of and in opposition to the plaintiff’s claim of lack of probable cause

as to the element in question.>

Terminated in favor of plaintiff

A civil action finally terminates in a manner favorable to the defendant in that action when it is

dismissed, goes to judgment for the defendant or is unilaterally withdrawn by the plaintiff in that

action, with no consideration of any kind.

[<If favorable final termination element is uncontested:> In this case, <name of defendant> has

admitted in the answer that the underlying action was finally terminated in a manner favorable to

<name of plaintiff> on <date of final termination> by <manner in which the underlying action

finally terminated favorably to the plaintiff>. You must therefore find that the third essential

element of vexatious litigation has been established as a matter of law.]

[<If favorable final termination element is contested:> In this case, <name of defendant> has

denied that the underlying action was terminated in a manner favorable to <name of plaintiff>.

On that score, <name of defendant> claims, more particularly, that even though <name of

defendant> withdrew the underlying action, <name of defendant> did not do so unilaterally, but

did so instead in exchange for valuable consideration, consisting of <nature of consideration>.

A person acts unilaterally when acting alone, without the agreement or participation of others.

Under this definition, a person does not act unilaterally in withdrawing an action against another

person when such person’s motivation for so doing, in whole or in part, is the other person’s

agreement to give valuable consideration – that is, anything of value.]

Proximate Cause: Injuries or losses

Finally, a successful claimant in an action for vexatious litigation is entitled to recover money

damages for all injuries or losses that the claimant was legally caused to suffer due to the

commencement and prosecution of the vexatious litigation. Compensable injuries and losses

may include any of the following, all of which are claimed by <name of plaintiff> against <name

of defendant> in this case: <here list all economic and noneconomic injuries and losses which

are claimed in the plaintiff’s complaint and supported by at least some evidence at trial>.

<Insert Proximate Cause, Instruction 3.1-1.>

If, at the end of your deliberations, you find that <name of plaintiff> has failed to prove any

essential element of the vexatious litigation claim by a fair preponderance of the evidence, you

must return a defendant’s verdict on that claim. If, on the other hand, you find that <name of

plaintiff> has proved each essential element of the vexatious litigation claim, you must go on to

determine what damages to award on that claim.

Damages

The first step in determining what damages to award is to determine what actual compensable

damages were suffered as a result of the defendant’s allegedly wrongful conduct. To that end,

you must first determine which types of injuries and losses claimed by <name of plaintiff> were

legally caused by <name of defendant>’s proven commencement and prosecution, without

probable cause, of the underlying action. You must then determine what amount of damages is

fair, just and reasonable to compensate <name of plaintiff> for those injuries and losses.

Economic damages may be awarded for any financial loss or expense which <name of plaintiff>

proves was legally caused as a result of <name of defendant>’s commencement and prosecution

against <name of plaintiff>, of the underlying action. Here, <name of plaintiff> seeks to recover

economic damages for the following financial losses and expenses which <name of plaintiff>

claims to have been legally caused by <name of defendant>’s commencement and prosecution of

the underlying action: <here list all financial losses and expenses for which the plaintiff seeks

economic damages, as claimed in the complaint and supported by the evidence at trial

(including, where appropriate, any expenses, including reasonable attorney’s fees), incurred to

defend against the underlying action, any lost wages for time required to attend court

proceedings in the underlying action, any loss to business or property resulting from the

commencement and prosecution of the underlying action, and any reasonable and necessary

medical expenses incurred to treat physical or mental injury caused by the commencement and

prosecution of the underlying action>. If you find <name of defendant> liable for the vexatious

litigation, as here alleged, and that the vexatious litigation legally caused <name of plaintiff> to

sustain or incur any such financial loss or expense, then you must award fair, just and reasonable

economic damages for that loss or expense.

Noneconomic damages may be awarded for any injury which <name of plaintiff> proves was

legally caused to suffer as a natural consequence of <name of defendant>’s commencement of

the underlying action. Here, <name of plaintiff> seeks to recover noneconomic damages for the

following injuries which the plaintiff claims were legally caused as a result of <name of

defendant>’s commencement and prosecution of the underlying action: <here list all types of

emotional or physical injuries for which the plaintiff seeks noneconomic damages, as claimed in

the complaint and supported by the evidence at trial (including, where appropriate, mental

anguish, humiliation, embarrassment, mortification, shame, fear and damage to reputation)>.

If

you find that <name of defendant> commenced and prosecuted a vexatious litigation against

<name of plaintiff>, as here alleged, and that such vexatious litigation legally caused <name of

plaintiff> to suffer any such injury, then you must award fair, just and reasonable noneconomic

damages for that injury.

After making separate determinations as to economic and noneconomic damages, you will award

<name of plaintiff> double damages - that is, two times the actual damages you have found that

<name of plaintiff> is entitled to receive as fair, just and reasonable compensation for the proven

injuries and losses.

[<Insert if applicable:>

Without Probable Cause and with Malicious Intent

However, <name of plaintiff> is entitled to an award of treble damages if <name of defendant>

commenced and prosecuted the underlying action with the malicious intent unjustly to vex and

trouble <name of plaintiff>. An intent, of course, is a purpose for which a person engages in

particular conduct. A person acts intentionally with respect to a result when it is such person’s

conscious objective to bring about that result. A malicious intent is an evil or improper intent to

cause harm. A person vexes another person when the behavior annoys or irritates the other

person. A malicious intent unjustly to vex and trouble another person is thus not merely an

intent to cause the other person annoyance, irritation, and trouble, but an intent to do so in bad

faith, with the knowledge or belief that there is no justification for so doing. If you find a lack of

probable cause to commence the underlying action, you may, but are not required to, infer lack

of probable cause as evidence of malice.

If <name of plaintiff> has proven that <name of defendant> commenced and prosecuted the

underlying action against <name of plaintiff> with malicious intent unjustly to vex and trouble

<name of plaintiff>, you will award <name of plaintiff> treble, or triple, damages - that is, three

times the actual damages you have found that <name of plaintiff> is entitled to receive as fair,

just and reasonable compensation for the injuries and losses. If however, <name of plaintiff> has

not proven malicious intent, you will award double damages – as I have previously instructed

you – that is, twice the actual damages you have found that <name of plaintiff> is entitled to

receive as fair, just and reasonable compensation for the proven injuries and losses.]

Verdict Form

I will be giving you further instructions on the verdict forms. If you find that <name of plaintiff>

has not sustained the burden of proof on the vexatious litigation claim under the statute, you will

find in favor of <name of defendant> and complete <name of defendant>’s verdict form. If you

find in favor of <name of plaintiff> on the vexatious litigation claim, you must make separate

determinations as to economic and noneconomic damages and record them on the appropriate

lines of <name of plaintiff>’s verdict form. You must then multiply total damages by two (2)

[<if applicable:> or three (3)], in accordance with your finding, to calculate the amount of your

verdict.