Conn. Civ. Jury Instr. 3.13-6

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 in an action for vexatious litigation, <name of plaintiff> must prove five essential

elements by a fair preponderance of the evidence:

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

action against <name of 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 <name of defendant> commenced and prosecuted the

underlying action with malice;

4. that the underlying action was finally terminated in a manner

favorable to <name of plaintiff>; and

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

underlying action, without probable cause and with malice,

legally caused <name of plaintiff> to suffer at least some of the injuries or

losses complained of in the complaint.

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 until <date of final termination of underlying action>. 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 the person has knowledge of facts, actual or apparent, strong enough

to justify a reasonable person in the belief that there are lawful grounds for prosecuting the

defendant in the manner complained of. A person has lawful grounds for prosecuting a claim

when that 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 challenged claim of <claim made

in underlying action>, as made against <name of plaintiff> 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.>

Acted with malice

A person acts with malice when acting primarily for an improper purpose – that is, for a purpose

other than that of securing the proper adjudication of the claim on which the action is based. A

person thus acts with malice towards another person when acting primarily out of hatred for or ill

will towards that person, or with the intent to vex, harass or annoy. Malice may be inferred from

lack of probable cause.

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 with

no consideration of any kind.

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

admitted that the underlying action was finally terminated in a manner favorable to <name of

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

underlying action or proceeding 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 finally 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 [against <name of plaintiff>], the defendant

did not do so unilaterally, as required by law to constitute final termination of the action in a

manner favorable to <name of plaintiff>, but did so instead in exchange for valuable

consideration, consisting of <nature of consideration exchanged>. A person acts unilaterally

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

valuable consideration of any kind – that is, anything of value in exchange for the withdrawal.

Proximate Cause: Injuries or Losses

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

damages for all injuries or losses that the plaintiff was legally caused to suffer as a consequence

of 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 the complaint: <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 by that standard,

then you must go on to determine what damages to award on that claim.

In this case, <name of plaintiff> seeks to recover [both]

compensatory [and punitive] damages on

the claim of vexatious litigation. To determine what compensatory damages, if any, to award

<name of plaintiff> on that claim, you must first decide what injuries and losses claimed by were

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

probable cause and with malice, of the underlying action. You must then determine what

amount of damages is fair, just and reasonable to compensate <name of plaintiff> for those

proven injuries and losses under my general instructions on compensatory damages.

<Insert general instructions on compensatory damages, Damages - General, Instruction 3.4-1.>

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

proves were 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 vexatious litigation, as here alleged, and that this

vexatious litigation legally caused <name of plaintiff> to sustain or incur any such financial loss

or expense, then you must award <name of plaintiff> fair, just and reasonable economic damages

for that proven loss or expense, also in accordance with my general instructions on compensatory

damages. You cannot award any attorney’s fees or costs necessary to bring the present claim for

vexatious litigation as compensatory damages, but only those you find to have been reasonably

incurred to defend against the underlying action.

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

<name of plaintiff> was legally caused to suffer as a natural consequence of <name of

defendant>’s commencement and prosecution of the underlying action.

Here, <name of plaintiff> seeks to recover noneconomic damages for the following injuries:

<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 proven injury in accordance with my general instructions on compensatory

damages.

After making your separate determinations as to economic and noneconomic damages, if you

reach them in the course of your deliberations, you must record your findings on the appropriate

lines of the plaintiff’s verdict form, then add them together to calculate total compensatory

damages on the line provided for that purpose.

[To determine what punitive damages, if any, to award <name of plaintiff> on the claim of

vexatious litigation, you must be guided by my general instructions on punitive damages, which

are as follows.

<Insert general instructions on punitive damages, Damages - Punitive, Instruction

3.4-4.>].