text:
    JOHN FAHEY v. SAFECO INSURANCE COMPANY OF AMERICA
    (AC 17036)
    O’Connell, C. J., and Lavery and Landau, Js.
    Argued March 19
    officially released July 7, 1998

      Robert R. Sheldon, with whom, on the brief, were Douglas P. Mahoney and Frank A. Bailey, for the appellant (plaintiff).

      Kevin R. Murphy, with whom, on the brief, was Robert J. Siekinger, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, John Fahey, appeals from the trial court’s judgment in favor of the defendant, Safeco Insurance Company of America, in an action seeking the recovery of underinsured motorist benefits. The plaintiff claims that the trial court improperly (1) rendered judgment in favor of the defendant, (2) prevented the plaintiff from presenting to the jury evidence of the insurance contract, (3) opened the evidence following acceptance of the jury’s verdict, (4) interpreted the insurance policy and (5) precluded expert testimony concerning the risk of future surgery. We disagree and affirm the judgment of the trial court.

The following facts are undisputed. On April 25,1992, the plaintiff was injured in a motor vehicle collision caused by Helen Super in Trumbull. The plaintiff settled his claim with Super for $100,000, the full extent of her automobile insurance coverage. The plaintiff then sought underinsured motorist benefits under an automobile liability insurance policy he had with the defendant. The liability of the tortfeasor was admitted by the defendant, and the case was tried before a jury on the issue of damages. In his closing argument, the plaintiff argued to the jury that its role was to determine the plaintiffs fair, just and reasonable damages, and that the judge would later make adjustments and reductions to the verdict. The court instructed the jury that its task was to award the plaintiff, if it found in his favor, compensation “from dollar one” to such an amount that would compensate him fully as fair, just and reasonable damages. The court also instructed the jury that the court would deduct the amount of any compensation previously received by the plaintiff from the amount of any verdict. The jury returned a verdict for the plaintiff in the amount of $90,064.77.

The court accepted the verdict and the defendant moved for a judgment based on the pleadings and the amount of the jury’s verdict. The defendant also filed a motion to open the evidence to submit a copy of the insurance policy to the court, which was granted. The court rendered judgment in favor of the defendant. Because of the $100,000 recovery by the plaintiff, the court concluded that he already had received compensation in excess of the value of his damages and was, therefore, not entitled to underinsured motorist benefits. This appeal followed.

I

The plaintiffs first claim is that the trial court improperly rendered judgment in favor of the defendant. Specifically, the plaintiff argues that because the defendant failed to request that the jury’s verdict be set aside or that a remittitur be granted, there was no basis for the court’s decision. Further, the plaintiff argues that the court’s decision relied on information that was not before the jury and that this usurped the fact-finding function of the jury.

The defendant argues that the trial court properly rendered judgment in its favor because (1) the plaintiff failed to sustain his burden of proving that he was entitled to recover more than the $100,000 he had already received from the tortfeasor, (2) the judge properly assigned to the jury the fact-finding function of determining the amount of the plaintiffs damages, and (3) a judgment in favor of the plaintiff in the amount of the jury verdict would have resulted in an impermissible double recovery. We agree with the defendant.

This case involves an attempt by the plaintiff to recover underinsured motorist benefits from the defendant. General Statutes § 38a-336 (b) “requires that an insurer pay its insured up to the limits of the policy’s [underinsured] motorist coverage after the liability limits of all other applicable insurance policies have been exhausted by payment of judgments or settlements. This statutory subsection, together with the other provisions of the [underinsured] motorist statute, § 38a-336, reflects the public policy of this state to afford a personal injury claimant access to insurance protection to compensate for the damages that would have been recoverable if the [underinsured] motorist had maintained an adequate policy of liability insurance. Smith v. Safeco Ins. Co. of America, 225 Conn. 566, 573, 624 A.2d 892 (1993); Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982).” Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 800-801, 646 A.2d 806 (1994).

The purpose of underinsured motorist coverage “is to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.” (Internal quotation marks omitted.) Florestal v. Government Employees Ins. Co., 236 Conn. 299, 305, 673 A.2d 474 (1996), quoting Travelers Ins. Co. v. Kulla, 216 Conn. 390, 398, 579 A.2d 525 (1990). It has also been stated that “the purpose of underinsured motorist insurance is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured.” (Emphasis in original.) Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 27, 699 A. 2d 964 (1997). “ ‘[U]nderinsured motorist protection is not intended to provide a greater recovery than would have been available from the tortfeasor ....’” Florestal v. Government Employees Ins. Co., supra, 310, quoting Smith v. Safeco Ins. Co. of America, supra, 225 Conn. 573.

General Statutes § 38a-335 (c), which sets forth minimum policy provisions for automobile liability policies, provides in part that “[i]n no event shall any person be entitled to receive duplicate payments for the same element of loss.” “It is a time-honored rule that an injured party is entitled to full recovery only once for the harm suffered. Peck v. Jacquemin, 196 Conn. 53, 70 n.19, 491 A.2d 1043 (1985).” Buell v. American Universal Ins. Co., 224 Conn. 766, 775, 621 A.2d 262 (1993). “The social policy behind this concept is that it is a waste of society’s economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste. See, e.g., 4 G. Palmer, Law of Restitution (1978 & Sup. 1997) § 23.15, p. 437.” (Emphasis in original.) Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 23-24. “An insured may not recover double payment of damages under overlapping insurance coverage.” Buell v. American Universal Ins. Co., supra, 775.

Prior to trial, the court granted the defendant’s motion in limine and thereby excluded from the jury evidence of the insurance policy, its limits and the plaintiffs recovery from the tortfeasor. In Bennett v. Automobile Ins. Co. of Hartford, supra, 230 Conn. 802 n.15, citing with approval Bennett v. Automobile Ins. Co. of Hartford, 32 Conn. App. 617, 626-27, 630 A.2d 149 (1993) (Lavery, J., dissenting), rev’d, 230 Conn. 795, 646 A.2d 806 (1994), it was noted that in an underinsured motorist case “ ‘[t]he jury’s only task [is] to assign the appropriate level of damages arising from the [underinsured] motorist’s tort. Because the contractual limits [do] not prove or disprove the plaintiffs’ damages, they [are] irrelevant.’ ” The Bennett court also stated that “henceforth an insurer should raise issues of policy limitation, even when undisputed, by special defense. When a jury determination of the facts raised by special defense is not necessary, the special defense will not be submitted to the jury but, rather, will be resolved by the trial court prior to the rendering of judgment. Compliance with this procedure will place the trial court and the opposing party on proper notice of the policy limitation issue so that it may be resolved in accordance with § 38a-336 (b).” Bennett v. Automobile Ins. Co. of Hartford, supra, 230 Conn. 806. In addition, Practice Book (1998 Rev.) § 10-79 sets forth nearly identical language. Thus, the result of the trial court’s granting of the motion in limine was to establish that the sole function of the jury in this case was to decide the fair, just and reasonable damages that the plaintiff was entitled to recover.

The plaintiff acknowledged that the fact-finding function of the jury was limited to determining damages in his request to charge, submitted prior to the beginning of trial and prior to the court’s ruling on the motion in limine, when he sought a charge that the jury’s role was to determine fair, just and reasonable damages. During his closing argument, the plaintiff argued to the jury that its role was to determine the fair, just and reasonable damages. Finally, the court’s instruction to the jury reaffirmed that the jury’s only function was to decide fair, just and reasonable compensation for the plaintiff.

In this case, had the trial court rendered judgment in favor of the plaintiff in the amount of the jury verdict, the result would have been an impermissible double recovery by the plaintiff in violation of law and public policy. Furthermore, in the plaintiffs amended complaint, he alleged that he is “entitled to recover his full damages in excess of the $100,000, which he received as the remaining policy limits from Helen Super, up to the total available. . . coverage which is in the amount of $200,000.” Because the jury returned a verdict of less than the plaintiffs $100,000 recovery, the plaintiff failed to satisfy his burden to prove this allegation and, therefore, was not entitled to damages in excess of the $100,000 recovery. We conclude that the trial court properly rendered judgment in favor of the defendant.

II

The plaintiffs second claim is that the trial court improperly granted the defendant’s motion in limine. Specifically, the plaintiff argues that by granting the motion in limine the trial court prevented the jury from considering the insurance policy or the amount of recovery from the tortfeasor and that this violated his constitutional right to have the jury determine issues of fact. We disagree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Gonzalez-Rivera, 48 Conn. App. 784, 794, 713 A.2d 847 (1998).

The plaintiff argues that the trial court granted the defendant’s motion in limine on the basis of a misinterpretation oi Bennett v. Automobile Ins. Co. of Hartford, supra, 230 Conn. 806. The plaintiff attempts to distinguish Bennett from this case.

“In many cases, the liability of the uninsured or under-insured tortfeasor is admitted; and the case becomes, in reality, a hearing in damages. The inquiry of the jury then becomes what amount represents fair, just and reasonable damages in accordance with Connecticut law for those elements of damage which have been established in the case. Counsel representing claimants will frequently assert the position that the entire insurance policy, including the policy coverage limits and the premiums charged and paid, should be admissible since the claim is essentially based upon a contract of insurance; and, therefore, all provisions of the contract should be placed before the jury for its consideration. That is, the jury or finder of fact should be aware of the amount of [underinsured] motorist coverage purchased by the claimant, the premiums paid for such coverage, and the provisions of the policy which the claimant contends are violated by the insurer’s refusal to pay. However, the fundamental factual issue for resolution by the finder of fact is the amount of damages or liability if that is contested. Once that determination has been made, the issues of credits and set-offs to be applied are legal determinations to be made by the court or by agreement of the parties.

“Other jurisdictions which have addressed this issue have concluded that in uninsured and underinsured motorist cases, where the policy provisions themselves are not an issue, that it is error to admit into evidence the [underinsured] motorist policy limits and to allow counsel to argue an entitlement to recover those insurance policy proceeds. Auto-Owners Insurance Co. v. Dewberry, 383 So. 2d 1109 (Fla. App. 1980); Harvey v. Mitchell, 522 So. 2d 771 (Ala. 1988); Jones v. Lingenfelder, 537 So. 2d 1275 (La. App. 1989); Ponder v. Groendyke Transport, Inc., 454 So. 2d 823 (La. App.), writ denied, 457 So. 2d 1195, 1198 (La. 1984) . . . .” J. Berk & M. Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage (1993) § 7.9.3, pp. 273-74. “Connecticut courts have recognized that prejudice may result from the jury’s consideration of the policy’s undisputed [underinsured] motorist limits. Accordingly, such limits should not be considered by the jury but should be applied by the court to reduce a jury verdict in excess of the policy limits so that the judgment complies with the terms of the policy.” Id. (1997 Cum. Sup. IV), p. S-189. In Bennett v. Automobile Ins. Co. of Hartford, supra, 230 Conn. 803-804 n.17, our Supreme Court also noted that other jurisdictions have acknowledged “the prejudice that may result from the jury’s consideration of the policy’s undisputed [underinsured] motorist limits,” and have concluded that the jury should not consider such evidence and that the trial court should reduce the jury verdict to make it conform with the terms of the policy.

We conclude that the trial court did not abuse its discretion in granting the defendant’s motion in limine. The trial court properly granted the motion in limine on the basis of Bennett and, therefore, properly structured this underinsured motorist case to conform to the procedures established by our Supreme Court in Bennett. Furthermore, the trial court did not violate the plaintiffs constitutional right to have issues of fact decided by the jury. The only issue properly before the jury in this case concerned a determination of the appropriate level of damages arising from the underinsured motorist’s tort. Evidence of the insurance contract or the recovery from the tortfeasor was irrelevant to the jury’s determination of damages.

III

The plaintiff next claims that the trial court improperly opened the evidence to allow the defendant to introduce the insurance policy after accepting the jury’s verdict. We disagree.

“Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its discretion. State v. Levy, 103 Conn. 138, 145, 130 Atl. 96 [1925]; State v. Chapman, 103 Conn. 453, 479, 130 Atl. 899 [1925]; King v. Spencer, 115 Conn. 201, 203, 161 Atl. 103 [1932]; State v. Swift, 125 Conn. 399, 405, 6 Atl. (2d) 359 [1939]. Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 [1940]. In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided. . . . State v. Holmquist, 173 Conn. 140, 152, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977).” (Internal quotation marks omitted.) Doe v. Doe, 244 Conn. 403, 421, 710 A.2d 1297 (1998). “Such a reopening should not be permitted if it would result in substantial prejudice to a party. See Poly-Pak Corporation of America v. Barrett, 1 Conn. App. 99, 104, 468 A.2d 1260 (1983).” Wood v. Bridgeport, 216 Conn. 604, 606, 583 A.2d 124 (1990).

The defendant moved to open the evidence in order to offer as an exhibit to the court the applicable insurance policy pursuant to which the plaintiff claimed he was entitled to recover underinsured motorist benefits. The trial court granted the motion, noting in its memorandum of decision that “[although the court granted said motion the court did not feel that a motion to reopen was necessary as the court had refrained from entering judgment on the verdict.”

“The trial court has discretion to allow an insurance company to submit proof of specific policy limits after the verdict and to enter judgment limiting the insurer’s liability to the amount of coverage. Price [v. Hart, 166 Wis. 2d 182, 189, 480 N.W.2d 249 (App. 1991)].” Hoff v. Wedin, 170 Wis. 2d 443, 451, 489 N.W.2d 646 (App. 1992).

In the plaintiffs amended complaint, he alleged the policy limits pertaining to the underinsured motorist coverage involved in this case. Further, the plaintiff was well aware that the trial court would make the appropriate adjustments necessary to the verdict after it was rendered. The plaintiff was not prejudiced by the trial court’s receipt into evidence of the insurance policy in question. Allowing the policy into evidence placed the plaintiff in the same position he would have been in had the policy been introduced before the defendant rested its case. The policy would not have been submitted to the jury because, as already stated, the policy limits were irrelevant to the jury’s task in this case and because the policy presented an issue of law for the court. Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., 240 Conn. 26, 30, 688 A.2d 319 (1997).

We conclude that the trial court did not abuse its discretion and acted within its authority in allowing the defendant to submit the insurance policy into evidence after receiving the jury’s verdict.

IV

The plaintiffs fourth claim is that the trial court improperly interpreted the insurance policy. Specifically, the plaintiff argues that the trial court ignored the insurance policy’s endorsement to conclude that the plaintiff is not legally entitled to recover damages. The defendant argues that the plaintiff has failed to recognize that the policy language in question is nearly identical to that set forth in the state insurance regulations and that the endorsement clearly provides that the plaintiff was not entitled to receive duplicate payments for the same element of loss. We agree with the defendant.

“ ‘An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. . . . [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo.’ ” Id., 29-30.

An insurance policy shall provide all statutorily mandated provisions. General Statutes § 38a~338. “It is well settled that an insurance contract must be read to include provisions that the law requires be included and to exclude provisions that the law prohibits. . . . ‘Unless the agreement indicates otherwise, [an applicable] statute existing at the time an agreement is executed becomes a part of it and must be read into it just as if an express provision to that effect were inserted therein.’ ” (Citation omitted.) Harlach v. Metropolitan Property & Liability Ins. Co., 221 Conn. 185, 191-92, 602 A.2d 1007 (1992). “The regulations subsequently adopted by the insurance commissioner to implement the statutory provisions concerning uninsured motorist coverage have the force of statute.” Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 449, 370 A.2d 1006 (1976).

Section 38a-334-6 (d) of the Regulations of Connecticut State Agencies provides: “The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (1) paid by or on behalf of any person responsible for the injury . . . .” This provision has been held to permit an insurer who provides under-insured motorist coverage to limit its liability by deducting amounts paid personally by the tortfeasor and settlement payments from the damages owed to its insured. Lumbermens Mutual Casualty Co. v. Huntley, 223 Conn. 22, 30, 610 A.2d 1292 (1992); Buell v. American Universal Ins. Co., supra, 224 Conn. 775.

The plaintiff argues that the language of an endorsement of the insurance policy, replacing the original limit of liability provisions in their entirety, only discusses the reduction of underinsured motorist coverage by the tortfeasor recovery and does not seek a reduction in damages. The plaintiffs argument is without merit. The plaintiff ignores the clear and unambiguous language of the contract, which states: “The limit of liability shall be reduced by all sums: (1) Paid, because of the bodily injury, by or on behalf of persons or organizations who may be legally responsible. . . .” The endorsement’s language tracks the language of § 38a-334-6 (d) (1) of the Regulations of Connecticut State Agencies. Furthermore, the endorsement also states “[h] owe ver, in no event shall anyone be entitled to receive duplicative payments for the same element of loss.” In Buell v. American Universal Ins. Co., supra, 224 Conn. 775, our Supreme Court interpreted almost verbatim policy language and concluded that “[i]n light of the legislative intent to provide a certain minimum level of protection, but to prevent double recovery on the part of the insured, we conclude that an insurer may limit its liability by deducting a settlement payment from the damages owed to its insured. To hold otherwise would provide the insured a windfall by permitting duplicate payments for the same injury.”

The jury verdict in this case would have resulted in a duplicate payment for the same injuries. We conclude that the trial court properly inteipreted the insurance policy and its endorsement and, therefore, correctly rendered judgment in favor of the defendant.

V

The plaintiff’s final claim is that the trial court improperly precluded expert testimony concerning his risk of future surgery. Specifically, the plaintiff argues that the trial court’s ruling was both inconsistent and improper, and prejudicial because it denied him the opportunity to obtain adequate future medical compensation.

The following additional facts are necessary to resolve this issue. At trial, the plaintiffs treating physician, Kanada Sena, testified about the plaintiffs medical treatment for the injuries he suffered as a result of the automobile accident. Sena testified that within reasonable medical probability, the plaintiff had sustained a 10 percent permanent partial disability to the cervical spine due to multiple herniated discs and a 5 percent permanent partial disability to the right upper extremity due to the presence of sensoiy involvement of the right arm. In addition, Sena testified that within reasonable medical probability, the plaintiffs condition will get worse with time. The trial court permitted this testimony as well as testimony concerning future treatment, excluding surgery and medications. When the plaintiff attempted to ask Sena what, within reasonable medical probability, the risk of future surgery is, the defendant objected.

The defendant argued that Sena had not been disclosed as an expert who would give any opinion with respect to the possibility of surgery in the future and that there was no proper foundation. The plaintiff made an offer of proof, asking Sena to state with reasonable medical probability what the percentage of risk is that the plaintiff will need future surgery. Sena answered that the risk was 15 to 20 percent. The trial court concluded that Sena could not testify with respect to a reasonable likelihood of surgery because it believed that surgery was not an issue in this case in view of the complaint and reports that were turned over to the defendant prior to trial.

“In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998). “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. Berry v. Loiseau, 223 Conn. 786, 804, 614 A.2d 414 (1992); Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191-92, 510 A.2d 972 (1986).” Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 193, 646 A.2d 195 (1994). One of the circumstances identified by our Supreme Court where the prejudicial effect of evidence may outweigh its probative value is “where the [party against whom the evidence has been offered], having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) Id.

Practice Book § 220 (D), now Practice Book (1998 Rev.) § 13-4 (1) (A), mandates that “any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ...” “[Section] 220 (D) is intended to furnish a defendant with details of a plaintiffs medical claim to assist in the preparation of the defendant’s case.” Rosenberg v. Castaneda, 38 Conn. App. 628, 632, 662 A.2d 1308 (1995). The rules of discovery are designed to “make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958); Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 106, 476 A.2d 1074 (1984).

In this case, the trial court found that the plaintiffs complaint, his disclosure pursuant to § 220 (D), and his medical reports failed to disclose any possibility of future surgery. The trial court stated: “I do think if the defendant is going to be exposed to a claim for surgery or expenses associated with surgery that there should be some advanced warning given the defendant with respect to the fact that he is going to be facing such a claim, and in this case there has been none. And for that reason I am going to rule it out.”

The plaintiffs complaint alleges that “the plaintiff incurred expense for medical care and attention and may continue to do so.” The medical reports of Sena concerning the plaintiff do not indicate a risk of future surgery. In the most recent of the medical reports, dated November 19,1992, Sena stated that “[considering the date of the accident [April 25,1992] and the date of this examination, it is my opinion that maximum medical improvement has occurred . . . .” Further, in response to the defendant’s interrogatories, the plaintiff responded that Sena would testify on the subject matter of general medicine and neurology, and that the substance of his testimony would concern the care and treatment, causation, diagnosis, prognosis, permanency and costs of future medical care.

The court did not abuse its discretion in concluding that the consequences of the plaintiffs failure fully and fairly to disclose, despite his being given ample opportunity to do so, should fall upon the plaintiff rather than upon the defendant. To hold otherwise would unfairly deny the defendant, under the circumstances of this case, the opportunity to prepare for or to challenge the proposed testimony concerning the future risk of surgeiy. See Sturdivant v. Yale-New Haven Hospital, supra, 2 Conn. App. 108.

On the basis of our review of the record, transcripts and evidence, we conclude that the trial court did not abuse its discretion in prohibiting Sena from testifying about the plaintiffs increased risk of future surgery. Our review leads us to the conclusion that the trial court could reasonably have concluded that the plaintiff failed to disclose to the defendant in a proper manner that he was going to present testimony at trial concerning an increased risk of future surgeiy. The plaintiffs disclosure in this case failed to disclose to the defendant the issue of increased risk of future surgeiy, resulting in unfair surprise at trial and the denial of an opportunity to prepare for or to challenge this testimony on the part of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book (1998 Rev.) § 10-79 provides: “An insurer should raise issues of monetary policy limits, or credits lor payments by or on behalf of third party tortfeasors, by special defense. When a jury determination of the facts raised by special defense is not necessary, the special defense shall not be submitted to the jury but, rather, shall be resolved by the trial court prior to the rendering of judgment.”

         The trial court instructed in relevant part: “In an uninsured-underinsured motorist action where the plaintiff claims that he was injured as a result of the negligence, as in this case, of Helen Super, the amount of damages to be recovered from [the defendant] is the amount of money which the plaintiff would have been able to recover against Helen Super if she had had sufficient insurance coverage to afford him fair, just and reasonable compensation for the injuries and damages suffered by him.
      “You, the jury, are not to concern yourselves with what, if any, compensation [the plaintiff] received from Helen Super or her insurance carrier. Your task, should you find in [the plaintiffs] favor, is to award him compensation from dollar one to such an amount as you would feel to be fair, just and reasonable in order to fully compensate him from his injuries and damages. Your following this instruction will ensure fairness, as it is the responsibility of the judge under our law, should your verdict be for [the plaintiff], to deduct the amount of any payment previously received by him from the amount of your verdict.”

       See, e.g., Alfa Mutual Ins. Co. v. Moreland, 589 So. 2d 169 (Ala. 1991); Allstate Ins. Co. v. Miller, 315 Md. 182, 553 A.2d 1268 (1989); see also Price v. Hart, 166 Wis. 2d 182, 480 N.W.2d 249 (App. 1991).

       General Statutes § 38a-338 provides: “Policies affording bodily injury liability, property damage liability and uninsured motorist coverages to which the provisions of sections 38a-334 to 38a-336a, inclusive, 38a-338 and 38a-340 apply shall be deemed to provide insurance under such coverages in accordance with such regulations. Policies affording medical payments coverage to which the provisions of said sections apply shall be deemed to provide insurance under such coverage in accordance with such regulations.”

       General Statutes § 38a-334 (a) authorizes the insurance commissioner to adopt regulations concerning the minimum provisions to be included in automobile liability insurance policies.

       The trial court stated: “I’m going to hold to my original decision, and that is [that] I’m not going to allow the doctor to testily with respect to a reasonable likelihood of surgery, since—or even a 15 or 20 percent chance of surgery—because I don’t believe that surgery is in this case in view of the complaint or any of the reports that were turned over to counsel prior to this trial. So, that’s my decision.”

       The plaintiff responded as follows:
      “36. For each witness identified in response to Interrogatory No. 35, state:
      a. the subject matter on which each expert is expected to testify:
      ANSWER: Dr. Sena—general medicine and neurology
      Dr. Eisenberg—general medicine and orthopedics
      Dr. Boone—general medicine and orthopedics
      Police Officer—as to the cause of the accident
      b. the substance of the facts and opinions to which each expert is expected to testify;
      ANSWER: The medical experts may testify as to care and treatment, causation, diagnosis, prognosis, permanency and costs of future medical care. The police officer may testify as to the circumstances surrounding the accident and its causes.
      c. a summary of the grounds for each opinion of each expert witness expected to testify.
      ANSWER: The medical providers will testify as to their examination and treatment of the plaintiff, review of medical records and their experience and education as medical providers. The police officer will testify as to his/ her examination of the accident scene and his/her experience.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. NOEL MENDOZA
    (AC 15791)
    O’Connell, C. J., and Landau and Hennessy, Js.

      Argued March 2
    officially released July 7, 1998

      Michael L. Moscowitz, special public defender, for the appellant (defendant).

      Lisa Herskowitz, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, and BethBaran, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Noel Mendoza, appeals from the judgments of conviction, rendered after a jury trial, of two counts of sale of a narcotic substance in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a mistrial based on prosecutorial misconduct and (2) expanded the charge to the jury to include actions subsequent to the date of the offenses in the information. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On September 6, 1994, a four person narcotics unit from the Meriden police department arranged controlled buys in order to identify and arrest as many drug dealers as possible in the area of 144 Miller Street, Meriden. The narcotics unit employed two paid informants, both of whom carried concealed microphones that relayed live audio to the unit. The informants drove to 144 Miller Street. The defendant, who was standing in the doorway of 144 Miller Street, approached the vehicle and asked the informants what they wanted. One of the informants replied “a twenty” and the defendant went back into the house and returned with a $20 bag of crack cocaine. Upon his return, the other informant told the defendant that he wanted “a twenty” also. The defendant went back into the house and again returned with another $20 bag of crack cocaine. The informants then drove away and relayed a description of the seller to the narcotics unit. The informants described him as a short Latin male, light-skinned, with short hair, a short ponytail and a slight moustache, wearing a black vest, black pants and black sneakers, with fresh scratches on his chest.

While these transactions were taking place, the narcotics unit was approximately one tenth of one mile away, monitoring the conversations. After the informants drove away, the narcotics unit approached an intersection near 144 Miller Street. One of the members of the unit, Detective Robert Milslagle, saw a person fitting the description of the seller standing on the front porch of 144 Miller Street. He recognized the individual matching the description of the seller as Mendoza, whom he had known by name for about four years, and wrote down his name. At trial, Milslagle testified that he observed no one else in the area at that time.

The defendant was subsequently arrested and charged with two counts of sale of a narcotic substance in violation of § 21a-277 (a). After trial, the jury returned a verdict of guilty on both counts. This appeal followed.

I

The defendant claims that the trial court improperly denied his motion for a mistrial, which alleged prosecutorial misconduct. The motion was based on the claim that his federal and state constitutional rights to due process and to a fair trial were violated when the prosecutor improperly commented on facts not in evidence during her closing argument. The record, however, does not support the defendant’s claim.

Certain additional facts are necessary to our resolution of this claim. Milslagle testified that through his personal experience working in the narcotics unit, he recognized the defendant and knew his name. During closing argument, defense counsel argued that if Milslagle had known the defendant for four years, he should have been able to identify him earlier by recognizing his voice when he was monitoring the drug transaction. Defense counsel also argued that there were other people present on Miller Street during and immediately following the drug transaction. During the state’s rebuttal closing argument, the prosecutor responded by arguing that there was no evidence that Milslagle ever had a conversation with the defendant and therefore there was no evidence to support defense counsel’s claim that Milslagle should have recognized the defendant’s voice. The prosecutor also argued that contrary to defense counsel’s argument, there was no evidence of other people present on Miller Street and relied on testimony from Milslagle that the defendant was the only one in the area. The defendant also objects to several other comments made by the prosecutor when she used the pronouns “I” and “we,” arguing that the prosecutor was improperly presenting her own personal opinion to the jury.

The defendant’s claims are not supported by the record. The prosecutor did not comment on facts not in evidence in rebuttal argument, but argued that the defendant’s propositions were not supported by the evidence. Moreover, the challenged remarks that the defendant claims were the prosecutor’s personal opinion were instances in which the prosecutor used “I” and “we” to mean the state. The prosecutor was telling the jury that we, the state, put on certain evidence and that she had asked a witness certain questions.

“ ‘[Closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’ Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); see also State v. Marra, [222 Conn. 506, 533-34, 610 A.2d 1113 (1992)].” State v. Haase, 243 Conn. 324, 335-36, 702 A.2d 1187 (1997).

“[O]ur inquiry is . . . whether the action of the trial court in refusing to grant a new trial on account [of the actions of the prosecutor], in the exercise of its discretion, so far exceeded or abused the discretion committed to it . . . as to warrant us in granting a new trial. . . . State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984); see State v. Hawthorne, 176 Conn. 367, 373-74, 407 A.2d 1001 (1978).” (Internal quotation marks omitted.) State v. Lanier, 39 Conn. App. 478, 482, 664 A. 2d 1202, cert. denied, 235 Conn. 931, 667 A.2d 1269 (1995). After a thorough review of the transcripts, we conclude that the challenged remarks were not objectionable. Therefore, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

II

The defendant next claims that the trial court improperly instructed the jury that the date of the offenses was not an element of the offenses charged. We disagree.

Certain additional facts are necessary to our resolution of this claim. On August 11, 1995, the state filed a long form information charging the defendant with two counts of sale of a narcotic substance in violation of General Statutes §§ 21a-278 (b) and 21a-277 on or about September 9, 1994. On September 28, 1995, the state amended the information to allege two counts of sale of a narcotic substance in violation of § 2 la-277 (a) on or about September 6, 1994.

On appeal, the defendant challenges a portion of the charge that the court gave to the jury regarding the date of the offense. “The state has charged the defendant Mr. Mendoza with two counts of sale of a narcotic substance on or about September 6, 1994. Those sales, of course, involved] the two witnesses who testified [as to two] separate transactions, therefore, two counts. During the course of the trial, you’ve heard some testimony concerning another date on which the crime occurred, that is, I think it was September 9. The date was contained, I think the September 9 date, in statements and perhaps in the arrest warrant affidavit. You should understand that in the state of Connecticut, it’s pretty well settled that the crime charged need not be proven to have been committed on the precise date alleged. It is competent ordinarily for the state to prove commission of the crime charged at any time prior to the date of the complaint. So understand that the date, the date alleged is not considered an element of the crime charged.”

The defendant argues that, because the information alleges a September 6, 1994, date of the offense and there was evidence that the crime could have occurred on September 9, 1994, the jury should have been instructed that time was an essential element of the offense. The defendant misinterprets well settled case law.

“[I]t is a well-established rule in this state that it is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the statute of limitations. State v. Lorusso, 151 Conn. 189, 191, 195 A.2d 429 [1963]; State v. Bitting, 162 Conn. 1, 8, 291 A.2d 240 [1971]; see also Stenz v. Sandstrom, 143 Conn. 72, 75, 118 A.2d 900 [1955]; State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 [1945]; State v. Ferris, 81 Conn. 97, 99, 70 A. 587 [1908]. State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978); see also State v. Orsini, 187 Conn. 264, 274, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982).” (Internal quotation marks omitted.) State v. Morrill, 197 Conn. 507, 552, 498 A.2d 76 (1985).

The “date of the complaint” is not the date the crime is alleged to have been committed, but rather the date that the information was filed. “[The defendant] was bound to meet any evidence admissible under the allegation which might be offered, and under the allegation it was competent to prove that the crime was committed on any day prior to the filing of the information and within the statute of limitations.” State v. Ferris, supra, 81 Conn. 99-100. The information was filed on August 11, 1995, eleven months subsequent to the date the crime was alleged to have been committed.

Time is not an essential element of the crime of sale of a narcotic substance in violation of § 21a-277 (a), but it may become material if the defendant raises an alibi defense. See State v. Evans, 205 Conn. 528, 535, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988). This the defendant did not do. The defendant’s claim is therefore without merit.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years . . . .”

       It is important to note that the defendant does not claim that he was denied due process of law by receiving inadequate notice of the charges against him.


author: O’CONNELL, C. J.

text:
    VINCENT J. DOWLING, SR., ET AL. v. FINLEY ASSOCIATES, INC., ET AL.
    (AC 16843)
    (AC 16844)
    O’Connell, C. J., and Spear and Sullivan, Js.

      Argued March 16
    officially released July 7, 1998

      Richard P. Weinstein, with whom was Nathan A. Schatz, for the appellants (plaintiffs).

      R. Bartley Halloran, for the appellees (defendants).
   Opinion

O’CONNELL, C. J.

This is the plaintiffs’ consolidated appeal from judgments rendered by the trial court in two separate but related actions between the same parties. The first action was based on an investment made by the plaintiffs in a real estate project in downtown Hartford. It was commenced in 1992 when the plaintiffs Vincent J. Dowling, Sr., and Vincent J. Dowling, Jr., filed a five count complaint against the defendants George C. Finley and Finley Associates, Inc. Counts one and two alleged violations of the Connecticut Uniform Securities Act (CUSA), General Statutes (Rev. to 1995) § 36-470 et seq. Count three alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Count four alleged intentional misrepresentation, and count five alleged negligent misrepresentation. The plaintiffs sought monetary damages, rescission and interest.

The defendants filed an answer and raised special defenses based on the applicable statutes of limitation. Count one, which alleged a violation of CUSA and sought the equitable remedy of rescission, was reserved to the court. The plaintiffs withdrew count three, and the remaining counts were tried to a jury, which returned a general verdict for the defendants on January 27,1995. On the plaintiffs’ motion, a mistrial was entered as to count one on January 16,1996, because a decision had not been rendered within the required 120 day period. See General Statutes § 51-183b.

The second action, which arose from the same facts as the first, was commenced in 1995, when the plaintiffs filed a two count complaint against the defendants, seeking indemnification of sums paid in a prior settlement. The trial court granted the defendants’ request to file a consolidated motion for summary judgment as to count one of the 1992 action and both counts of the 1995 action.

The trial court granted the motion for summary judgment as to count one of the 1992 action, finding that the plaintiffs failed to bring their cause of action within the maximum five year limitation period established in General Statutes § 36b-29 (f). The court also granted the motion as to both counts of the 1995 action, concluding that these claims were barred by the doctrine of collateral estoppel. The plaintiffs now appeal from the trial court’s granting of summary judgment as to the 1995 action and count one of the 1992 action.

On appeal, the plaintiffs claim that the trial court improperly (1) determined that count one of the 1992 action was barred by the statute of limitations set forth in § 36b-29 (f) and (2) concluded that the 1995 action was barred by the doctrine of collateral estoppel. We affirm the judgment of the trial court.

I

The plaintiffs’ first claim is that the trial court improperly granted summary judgment as to count one of the 1992 action on the ground that the five year time limitation set forth in § 36b-29 (f) barred the claim. The plaintiffs do not dispute that they brought the 1992 action more than five years after the alleged CUSA violation. The plaintiffs contend, however, that because count one seeks an equitable remedy, the time limitation is not applicable to it. We are not persuaded.

The plaintiffs rely on the principle that “[although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations.” Dunham v. Dunham, 204 Conn. 303, 326-27, 528 A.2d 1123 (1987).

Count one of the 1992 action alleged that the defendants held themselves out as financial consultants, sold securities to the plaintiffs without being registered as broker-dealers and concealed the fact that they were receiving a sales commission in connection with the plaintiffs’ investment, all in violation of CUSA. General Statutes § 36b-29 (a) enables a party to seek private enforcement for such violations, and § 36b-29 (f) sets forth a maximum time limitation of five years for bringing such an action.

Although the plaintiffs sought equitable relief in count one, they are not exempt from the time limitations set forth in § 36b-29 (f) because their cause of action was brought pursuant to § 36b-29 (a). Where a party seeks equitable relief pursuant to a cause of action that would also allow that party to seek legal relief, concurrent legal and equitable jurisdiction exists, and the statute of limitations that would be applicable to bar the legal claim also applies to bar the equitable claim. Swan v. Board of Higher Education, 319 F.2d 56, 59-60 n.5 (2d Cir. 1963); see also Cope v. Anderson, 331 U.S. 461, 463-64, 67 S. Ct. 1340, 91 L. Ed. 1602 (1947); Russell v. Todd, 309 U.S. 280, 289, 60 S. Ct. 527, 84 L. Ed. 754 (1940); Williams v. Walsh, 558 F.2d 667, 671 (2d Cir. 1977); 2 J. Pomeroy, Equity Jurisprudence (5th Ed. 1941), § 419e, pp. 180-81. This principle has long been recognized in Connecticut. See Arrigoni v. Adorno, 129 Conn. 673, 681, 31 A.2d 32 (1943); Crittendon v. Brainard, 2 Root (Conn.) 485, 487 (1796); Campbell v. Board of Education, 36 Conn. Sup. 357, 364 n.5, 423 A.2d 900 (1980).

In the present case, the underlying cause of action on which the plaintiffs seek equitable redress is an alleged violation of CUSA. This cause of action affords both legal and equitable relief. General Statutes § 36b-29 (a). As noted, equity follows the law under these circumstances. Arrigoni v. Adorno, supra, 129 Conn. 681; Campbell v. Board of Education, supra, 36 Conn. Sup. 364 n.5. Therefore, because the plaintiffs filed their complaint more than five year’s after the alleged CUSA violation, the trial court properly determined that count one of the 1992 action was barred by the statute of limitations set forth in § 36b-29 (f).

II

The plaintiffs’ second claim is that the trial court improperly granted summary judgment as to the 1995 indemnification action on the ground that pursuant to the doctrine of collateral estoppel, the jury verdict in favor of the defendants in the 1992 action bars the litigation of the issues raised in the 1995 action. The plaintiffs assert that collateral estoppel does not apply in this case because (1) a final judgment has not been entered in the 1992 action and (2) collateral estoppel cannot be applied in cases of general verdicts.

Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit. Crochiere v. Board of Education, 227 Conn. 333, 343, 630 A.2d 1027 (1993). “ ‘For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined.’ ” (Emphasis in original.) Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 600, 674 A.2d 1290 (1996). “ ‘To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the [party] is attempting to relitigate those facts in the second proceeding.’ ” Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 297, 596 A.2d 414 (1991).

The plaintiffs first argue that collateral estoppel does not apply here because there will be no final judgment in the 1992 action if this court reverses the judgment of the trial court as to count one of the 1992 action and remands for further proceedings. This argument is without merit. In part I of this opinion, we considered and declined to reverse the 1992judgment. Accordingly, the 1992 judgment is final.

The plaintiffs next argue that collateral estoppel cannot be applied in cases of general verdicts because it is not possible to ascertain on which facts the jury relied. We do not agree.

In the 1992 action, three counts were submitted to the jury. Each count alleged that the defendants had violated the plaintiffs’ legal rights and had caused damages to the plaintiffs as a result. In their answer, the defendants denied the plaintiffs’ claims of liability and damages. The defendants also pleaded special defenses to each count on the basis of the applicable statute of limitations. The jury rendered a general verdict in favor of the defendants on all three counts.

“Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels.” (Citations omitted; internal quotation marks omitted.) Gajewski v. Pavelo, 229 Conn. 829, 836, 643 A.2d 1276 (1994); Rogers v. Northeast Utilities, 45 Conn. 23, 25, 692 A.2d 1301, cert. denied, 241 Conn. 924, 696 A.2d 1266 (1997). “A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.” Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).

Our Supreme Court has held that the general verdict rule applies to the following five situations: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Id., 801; Fabrizio v. Glaser, 38 Conn. App. 458, 461, 661 A.2d 126 (1995), aff'd, 237 Conn. 25, 675 A.2d 844 (1996). The 1992 action falls under the fourth situation.

We are aware of no authority for the proposition that the general verdict rule does not apply when collateral estoppel is raised at the trial level. The plaintiffs’ reliance on Griffin v. Parker, 219 Conn. 363, 593 A.2d 124 (1991), is misplaced.

The plaintiff in Griffin sought to recover for personal injuries he sustained when he was shot by the defendant. In connection with that shooting, the defendant had been convicted by a general verdict of assault in the first degree under two statutory subdivisions, one applicable to intentional conduct and the other applicable to reckless conduct. The court held that the defendant was not collaterally estopped from litigating the issue of whether the assault was intentional because the general verdict in the prior criminal action was inconsistent. Id., 370-71. The court concluded that “ [b]ecause the defendant could not simultaneously have had mutually exclusive states of mind, there remains a question of fact as to which state of mind he did have.” Id., 371. In contrast to Griffin, the factual findings of the jury in the present case are not mutually exclusive. A plaintiff may both fail to bring an action within the time required by the applicable statute of limitations and fail to prove liability.

Moreover, jury interrogatories are not part of criminal procedure. State v. Lewis, 46 Conn. App. 691, 696, 700 A.2d 722, cert. denied, 243 Conn. 944, 704 A.2d 799 (1997). Accordingly, a criminal defendant has no way to clarify a general verdict. Because the 1992 action was a civil case, however, the plaintiffs could have requested interrogatories to clarify whether the jury found for the defendants on either the liability issue, the statute of limitations defense or both. Because the plaintiffs did not do so, the general verdict rule applies, and this court must presume that the jury found both issues in favor of the defendants. Gajewski v. Pavelo, supra, 229 Conn. 836.

The trial court properly determined that the 1995 action was an attempt by the plaintiffs to relitigate issues already litigated in the 1992 action. Both complaints have identical parties and are premised on the same underlying facts regarding apurchase of securities by the plaintiffs in which the defendants allegedly misrepresented their role and induced the plaintiffs to make the purchase. The general verdict in favor of the defendants demonstrates that every issue raised in the 1992 complaint was in fact litigated, and the jury found in favor of the defendants on each issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       In 1995, CUSA was transferred from General Statutes §§ 36-470 through 36-502 to General Statutes §§ 36b-l through 36b-33. For purposes of this opinion, we will refer to the current designation.

       The plaintiffs sought and received letters of credit from the predecessor of Fleet Financial Corporation (Fleet) in order to finance their investment with the defendants. When they were unable to pay the accruing interest on the letters of credit, Fleet initiated suit to recover the amount of the letters of credit, interest thereon, costs and attorney’s fees. The plaintiffs settled with Fleet.

       General Statutes § 36b-29 (f) provides in relevant part: “No person may bring an action under this section more than two years after the date of the contract of sale or of the contract for investment advisory services, except that (1) with respect to actions arising out of intentional misrepresentation or fraud in the purchase or sale of any interest in any limited partnership not required to be registered under the Securities Act of 1933, no person may bring an action more than one year from the date when the misrepresentation or fraud is discovered, except that no such action may be brought more than five years from the date of such misrepresentation or fraud provided, with respect to an action pending on July 1, 1993, that asserts facts upon which a claim could be asserted under this section on and after July 1, 1993, and which claim is asserted prior to January 1, 1994, no such action may be brought for intentional misrepresentation or fraud that occurred more than five years prior to the date of the filing of the complaint in such action . . . .”

       General Statutes § 36b-29 (a) provides in relevant part: “Any person who: (1) Offers or sells a security in violation of subsection (a) of section 36b-6 ... or (2) offers or sells or materially assists any person who offers or sells a security by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, who knew or in the exercise of reasonable care should have known of the untruth or omission, the buyer not knowing of the untruth or omission, and who does not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the untruth or omission, is liable to the person buying the security, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at eight per cent per year from the date of payment, costs and reasonable attorneys’ fees, less the amount of any income received on the security, upon the tender of the security, or for damages if he no longer owns the security.”
      General Statutes § 36b-6 provides in relevant part: “(a) No person shall transact business in this state as a broker-dealer unless he is registered under sections 36b-2 to 36b-33, inclusive. . .

       See footnote 3.


author: HEALEY, J.

text:
    ESTERINA DICHELLO v. HOLGRATH CORPORATION ET AL.
    (AC 16386)
    O’Connell, C. J., and Dupont and Healey, Js.

      Argued February 23
    officially released July 7, 1998

      Robert A. Izzo, for the appellant (plaintiff).

      Timothy E. Welsh, for the appellees (defendants).
   Opinion

HEALEY, J.

The plaintiff appeals from the decision of the compensation review board (board) affirming the commissioner’s award of reimbursement for disability payments made to the plaintiff. We affirm the decision of the board.

A brief overview of the background is appropriate at this point. On May 7, 1984, the plaintiff, Esterina Dichello, and the defendant Holgrath Corporation entered into a voluntary agreement, approved by the workers’ compensation commissioner, which provided that the plaintiff had a 30 percent loss of use of her right hand as the result of a compensable event that occurred at Holgrath on September 6, 1983. Payments under the agreement would have run through September 4, 1985, unless interrupted. On February 28, 1985, the defendant filed a form 36, seeking an order to terminate payment to the plaintiff of temporary total disability benefits as well as for reimbursement of certain payments made to her. After a tortuous history, the commissioner rendered his finding and award on December 19,1994. That decision included the commissioner’s finding that the plaintiffs temporary total disability had ended on January 9,1985, that the defendant was entitled to “the reimbursement of all payments in excess of those representing permanent partial disability for bilateral carpal tunnel syndrome” and that the charges of certain health providers, which the plaintiff maintained should be the obligation of the defendant, were the responsibility of the plaintiff.

In addition to those facts, we add the following from the commissioner’s finding and award. James Sabshin, a neurosurgeon, was noted on the voluntary agreement of May 7,1984, as the treating physician. Gene D’Angelo, the plaintiffs family physician, referred her to Ira Spar, an orthopedist, who first saw the plaintiff on November 3,1983. Spar, after examining the plaintiff and considering her history, felt that she suffered from carpal tunnel syndrome in the right hand and tendinitis. The plaintiff had no complaints involving her left hand, and Spar’s examination did not reveal any abnormalities. There were no complaints or findings involving the shoulders or elbows. Spar prescribed medication and applied a plaster splint.

Upon the plaintiffs return to Spar on November 17, 1983, he advised the plaintiff to undergo a nerve conduction study. On December 17, 1983, a right hand nerve conduction study revealed a slowing of the median nerve at the carpal tunnel. The plaintiff never returned to Spar. On the recommendation of a family member, the plaintiff undertook treatment with Anthony Scialla, a general surgeon, on November 21, 1983. Scialla referred the plaintiff to Sabshin, who first saw the plaintiff on December 8, 1983. Scialla, however, continued to see the plaintiff through February, 1992. His March 27, 1987 note indicates that the plaintiff was on six medications, but “neither he or she knew what they were and he would not prescribe anything else.” The plaintiff complained to Sabshin of pain and numbness in the right hand, but his examination revealed “no significant problems in other areas” and she had no other complaints.

Before making a diagnosis, Sabshin sent the plaintiff to Norman Werdiger for a nerve conduction study. After that study, Sabshin saw the plaintiff on January 5,1984, and recommended a right carpal tunnel release, which was done on January 27, 1984. Sabshin followed the plaintiff during her recovery and on February 23, 1984, she complained of left wrist pain. In May, 1984, Sabshin recommended nerve conduction studies of both hands and both wrists. Werdiger conducted these studies, which showed problems with the left wrist as well as showing that the nerve conduction in the right hand had not improved after the surgery.

On June 6, 1984, Sabshin recommended left carpal tunnel surgery, which was performed on July 30, 1984, on the left wrist. The plaintiff underwent a course of physical therapy, and on January 7, 1985, Sabshin approved the plaintiffs return to restricted work. On April 18, 1985, the plaintiff complained to Sabshin of cervical, bilateral shoulder, elbow, wrist and hand pain “resulting from any motion of either hand. ” An examination, however, revealed no basis for the plaintiffs complaints. She requested a letter from Sabshin indicating total disability but he refused to issue such a letter. Because of the multiplicity of the plaintiffs complaints, Sabshin again referred her to Werdiger, who could not relate all of her symptoms to a single diagnosis, although he did note possible diagnoses of reflex sympathetic dystrophy and dysesthetic type pain. When the plaintiff saw Werdiger on May 9, 1985, he recommended repeat surgery for the right carpal tunnel syndrome.

After another examination of the plaintiff by Sabshin on June 18, 1985, he referred her to David Goodkind, a hand surgery specialist. The latter recommended repeat surgeiy on the right wrist, but the plaintiff declined. On July 16 and September 24, 1985, Sabshin met with the plaintiff and her daughter, and again repeated his recommendation of right carpal tunnel surgery. Werdiger again saw the plaintiff in May, 1984, and he noted that his examination was difficult due to her complaints of pain. He, however, found no problem with her left arm proximate to the wrist or shoulder. He did diagnose bilateral carpal tunnel syndrome, worse on the right wrist.

After a later examination on April 22,1985, following the plaintiffs complaints of pain in her hands, arms, shoulders, neck, legs and thighs, Werdiger indicated that his examination was difficult because of her complaints of extreme pain even on the slightest movement of her fingers. Werdiger opined that her complaints did not fit any established neurological pattern, that he could find no cause for her symptoms, that he was skeptical of the degree of pain she was expressing, that he did not attribute any of her multiple complaints to her carpal tunnel syndrome and that she consider referral to a pain clinic. On August 6, 1983, Werdiger again saw her on referral by Sabshin. At that time, she complained of pain in both hands, neck, lower back and right leg, as well as severe pain at the slightest touch, even when she was asked to look from side to side, stick her tongue out or smile. Yet Werdiger was able to move all of the plaintiffs joints through a full range of motion and found that her reflexes were normal. A formal sensory examination, however, was not possible because of her failure to cooperate. Werdiger thought that she had chronic pain syndrome and “he could not document a cause for it.”

At the defendant’s request the plaintiff was examined and evaluated by Marvin Arons, a specialist in hand surgery, on October 13 and December 6,1987, and February 25,1988. As part of his examination and evaluation process, Arons reviewed and summarized thirty-one reports of prior examinations and tests. On her first visit to Arons, the plaintiff complained of pain in both upper extremities, neck and upper back, as well as numbness in the fingers of both hands. She sat motionless with her hands in her lap. When she cried, her husband wiped her tears and when she needed to blow her nose, her husband held the tissue. The examination was limited because of her complaints of pain with the slightest touch or movement. After this examination, Arons referred her to Gordon Hutchinson, a rheumatologist, and Moshe Hasbani, a neurologist. On her second visit, Arons described her as suffering, depressed, dejected, anguished, groaning and breathing deeply, with difficulty walking without assistance from her husband. The plaintiff’s husband and daughter told Arons that she did nothing at home and that she needed help to eat. Arons diagnosed compensable carpal tunnel syndrome bilaterally and thought that the plaintiff had developed a cycle of physiologic and emotional disability that led to bilateral chronic pain disability. He felt that she was a psychiatric case. He felt that the carpal tunnel syndrome “had been incipient but dormant, until aggravated by the compensable injury.” He described her prognosis as “grim.” On her third and last visit to Arons, the plaintiff appeared so disabled that she almost had to be carried into his office, and he likened her to a paraplegic or a person with multiple sclerosis. He stated that he had never seen anything like it.

Later, during his deposition, Arons was shown a videotape and photographs taken during surveillance of the plaintiff. The plaintiff did not deny that she was the person who appeared in the videotape and photographs. The photographs were taken on October 12, 1989, and showed the plaintiff walking with a shoulder strap over her left shoulder and opening a car door with her left hand and entering the driver’s side. On the same day, she drove from her home to a parking area at the rear of a dental office, which she entered. When she left the dental office, she drove to a chiropractic office. She appeared to walk and drive without difficulty. On October 28, 1989, she was again observed driving and walking to do errands. On November 10, 1989, a videotape was taken that showed “the [plaintiff] walking normally, swinging her arms, a shoulder bag strap over her shoulder, opening and closing the driver’s side of a car, backing the car and driving away, all without apparent difficulty. She made stops at a post office, a bank, a drug store and a bakery.” The defendant had paid workers’ compensation benefits during the period covered by the surveillance.

When Arons saw the videotape of the plaintiff, he described himself as “astonished, in a state of shock,” and he felt that the patient that he had examined nineteen months prior to the videotape “could not have done what the videotape showed . . . without something of great significance having occurred.” He noted the possibilities to be: (1) malingering and feigning her prior condition; (2) psychiatric and rehabilitation therapy; or (3) a miraculous intervention. The commissioner found no evidence to sustain the second and third possibilities.

On the basis of the facts found and the reasonable inferences drawn therefrom, the commissioner found that (1) the plaintiffs bilateral carpal tunnel syndrome had been dormant until aggravated by her workplace activity and was therefore compensable, (2) the plaintiffs permanent partial disability, as evidenced by the voluntary agreement, was interrupted for the reinstatement of temporary total disability on July 10, 1984, when she underwent left carpal tunnel surgery, (3) the plaintiffs temporary total disability ended on January 7, 1985, and permanent partial disability payments resumed on January 8,1985, (4) the defendant is entitled to reimbursement of all payments in excess of those representing permanent partial disability for bilateral carpal tunnel syndrome, (5) Sabshin was the authorized treating physician and, because Werdiger and Goodkind were seen on referral by Sabshin, their charges are the responsibility of the defendant, (6) the charges of Arons and the providers to whom he made referrals are the responsibility of the defendant and (7) those providers not referred to in (5) or (6) are not in the chain of authorization and, therefore, their charges are not the responsibility of the defendant. The commissioner’s decision of December 19,1994, constituted the approval of the defendant’s form 36, which was filed in 1985.

After the issuance of the commissioner’s decision, the plaintiff filed a number of motions. The first was her motion for extension of time to file a motion to correct and reasons for appeal dated December 22, 1994. On January 12, 1995, after the commissioner’s decision of December 19, 1994, the plaintiff filed a “Motion to Open Record to Submit Additional Documentary Medical Evidence.” The thrust of this motion was to have the case reopened for the purpose of adding certain medical reports to the record that the plaintiff claimed would require a change in the commissioner’s decision that the defendant was not responsible for the charges of certain health providers. This motion to reopen was denied on January 13, 1995. On April 6, 1995, the plaintiff filed a motion to correct “the finding and award by adding certain facts” concerning the imposition of certain medical charges on her. This motion was claimed on April 6, 1995. On April 12, 1995, the plaintiff filed a “Statement of Reasons of Appeal,” setting out a number of reasons for the board to vacate the commissioner’s decision. Some months later, on September 25, 1996, the plaintiff filed an “Amended Statement of Reasons for Appeal.” Among the reasons set out is that “the commissioner’s decision should be [reversed] because he failed to issue his decision within 120 days of the end of the Formal Hearings as required by Connecticut General Statutes, Section 31-300.” This is the first time the plaintiff raises an issue of the alleged untimeliness of the commissioner’s finding and award in any of the documents filed by the plaintiff after the commissioner’s awar d of December 19, 1994.

On appeal, the board affirmed the decision of the commissioner. In doing so, the board held (1) that the plaintiff had, by her conduct, waived the time limit required by § 31-300 and that the plaintiff cannot now have that decision vacated for lateness, (2) that the commissioner correctly determined that the plaintiffs total disability ended on January 7, 1985, and (3) that the commissioner correctly determined that the charges of certain health care providers were the obligation of the plaintiff and not the defendant. This appeal followed.

I

We turn first to the plaintiffs claim that the board improperly affirmed the commissioner’s award of December 19, 1994, because that decision was issued over 500 days after the record was closed, in contravention of the 120 day mandate of § 31-300. Implicit in this claim is the contention that the board also improperly concluded that the plaintiff had waived the 120 day limit of § 31-300. We affirm the decision of the board.

In discussing this issue, it is important to keep in mind that the commissioner’s hearings concluded on July 13, 1993. Therefore, for purposes of § 31-300, the 120th day after the hearings concluded was November 10, 1993. The commissioner’s decision, however, was dated December 19, 1994.

“Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. Regents of University System of Georgia v. Carroll, 338 U.S. 586, 597-98, 70 S. Ct. 370, 94 L. Ed. 363 (1950); Gerson v. Industrial Accident Commission, 188 Cal. App. 2d 735, 738-39, 11 Cal. Rptr. 1 (1961); Bair v. Blue Ribbon, Inc., 256 Iowa 660, 663, 129 N.W.2d 85 (1964); Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 719, 142 S.W.2d 866 (1940) (workers’ compensation commission); Fink v. Cole, 1 N.Y.2d 48, 52, 133 N.E.2d 691 (1956); 2 Am. Jur. 2d, Administrative Law § 328 [1962], We have recognized that ‘[i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.’ Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). . . .'' Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988).

“Waiver is the intentional relinquishment of a known right. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251, 618 A.2d 506 (1992); Olean v. Treglia, 190 Conn. 756, 772, 463 A.2d 242 (1983); Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974); Brauer v. Freccia, 159 Conn. 289, 295, 268 A.2d 645 (1970). A waiver occurs, therefore, only if there is both knowledge of the existence of the right and intent to relinquish it. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394 (1972) . . . .” Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 777, 653 A.2d 122 (1995). “ ‘[Waiver] involves the idea of assent, and assent is an act of understanding. . . . Intention to relinquish [must] appear, but acts and conduct inconsistent with intention [to assert a right] are sufficient.’ ” Hendsey v. Southern New England Telephone Co., 128 Conn. 132, 135, 20 A.2d 722 (1941), quoting Temple v. New Britain, 127 Conn. 170, 173, 15 A.2d 318 (1940).

Recently in Stewart v. Tunxis Service Center, 237 Conn. 71, 676 A.2d 819 (1996), our Supreme Court addressed the nature of the 120 day time limit set out in § 31-300. In Stewart, our Supreme Court held that time limit was mandatory and not directory, and “that any lack of timeliness may be waived, either expressly or by conduct.” Id., 76. The Stewart court stated that “[w]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Id., 80-81. We have noted that “[a] late judgment has been characterized by our Supreme Court as voidable rather than void, and the lateness of a judgment, if not seasonably objected to, has been permitted to be waived by the conduct or consent of the parties. [Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990).] That consent need not be express but may be implied.” Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 97, 669 A.2d 620, cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996).

Initially, we point out that the plaintiff did not at any time after the 120 day period had elapsed and before the issuance of the commissioner’s decision on December 19,1994, even inquire into or object to the tardiness of that decision. Moreover, after the decision was issued, the plaintiff moved for and was given an extension of time to file her reasons for appeal. Thereafter, on January 12, 1995, the plaintiff filed a “Motion to Open Record to Submit Additional Documentary Medical Evidence” with the commissioner in which she sought to open the record for the purpose of introducing additional medical reports for Sabshin, the treating physician, “concerning his referral [of the plaintiff] to Dr. Anthony Scialla and Dr. David Goodkind.” It was her claim in that motion that the “additional medical reports” would “clearly show” that the bills of Scialla and Goodkind were the responsibility of the defendant. This motion is wholly inconsistent with the plaintiffs claim that she did not do anything that supported the defendant’s claim of waiver. The plaintiff requested that the commissioner open the record to introduce this additional documentary evidence in the expectation that he would change one of his rulings in the December 19, 1994 decision that was adverse to her. This motion did not expressly or implicitly indicate that she was attacking, as she did later, the tardiness of the decision and it is devoid of any reference to § 31-300. Moreover, in support of the motion, she alleged therein that “the parties will not be delayed or prejudiced" by the opening of the record. (Emphasis added.)

In our discussion, we do not overlook the fact that the plaintiff was represented by counsel throughout the underlying proceedings. On April 12, 1995, the plaintiff filed a statement of reasons of appeal for overturning the commissioner’s decision with the board. This statement maintained that the commissioner committed seven errors. None of the reasons stated, either expressly or implicitly, reveals that the plaintiff was attacking the tardiness of the commissioner’s decision or contains any reference to § 31-300.

Some months later on September 27, 1995, the plaintiff filed an amended statement of reasons of appeal in which for the first time she mentions the tardiness of the commissioner’s decision as a ground for vacating his finding and award. The period from December 19, 1994, to September 27, 1995, is 280 days. Under the circumstances set out and given the application of the legal principles to which we have referred, we conclude that the plaintiff clearly waived by implication her right to have the December 19, 1994 decision of the commissioner vacated for lateness under § 31-300. Among those circumstances are her efforts to have the record opened to present additional evidence, her reasons for appeal filed April 12, 1995, containing several grounds for appeal, not one of which suggests a lateness issue, and her unreasonable assertion in a motion filed on September, 28,1997, in which she first raises the lateness issue.

II

Next, the plaintiff claims that the board improperly affirmed the commissioner’s finding that she was not totally disabled from her employment. She claims that the defendant failed to meet its burden of proof with respect to form 36 and that the evidence before the commissioner did not support a finding that she did not suffer a temporary total disability during the period when she received benefits. She also argues that the “ [commissioner based his decision on Dr. Arons’ reaction to a short videotape prepared surreptitiously by the defendant.”

In Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996), our Supreme Court said: “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950). Adzima v. UAC/Norden Division, 177 Conn. 107, [118], 411 A.2d 924 (1979); Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 145, 291 A.2d 743 (1972).” (Internal quotation marks omitted.) See Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154, 157, 565 A.2d 8 (1989). This standard clearly applies to conflicting expert medical testimony. “It [is] the province of the commissioner to accept the evidence which impress [es] him as being credible and the more weighty.” Stankewicz v. Stanley Works, 139 Conn. 215, 217, 92 A.2d 736 (1952); see Winzler v. United Aircraft Corp., 132 Conn. 118, 120, 42 A.2d 655 (1945).

We point out that as early as January 7,1985, Sabshin, the plaintiffs treating physician, approved of her returning to restricted work. In the spring of 1985, the plaintiff requested a letter from Sabshin “indicating total disability” and he refused to issue such a letter. The commissioner made a number of findings, as indicated earlier in this opinion, that the plaintiffs bilateral carpal tunnel syndrome was compensable and was the only neurological condition attributable to her employment, and that Werdiger came to this conclusion on the basis of his own findings and examination. The plaintiff was examined and her condition evaluated by Arons, a specialist in hand surgery, on three occasions in 1988 and 1989. As part of his examination and evaluation process, Arons reviewed and summarized thirty-one reports of prior examinations and tests. He later gave his deposition, during which he was shown photographs and a videotape taken during the surveillance of the plaintiff in 1989 and 1992. Arons’ opinion is supportive of the commissioner’s decision in this case. The commissioner’s finding that the plaintiff was not totally disabled from her employment is supported by the evidence.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The history given by the plaintiff to Ira Spar, an orthopedist, in November 1983, was that her right middle finger had been pierced by a needle in the course of her employment. In examining the plaintiff, Spar determined that she suffered from carpal tunnel syndrome.

       An employer cannot terminate or reduce total or partial disability payments to an employee without first notifying the workers’ compensation commission and the employee of his intent to do so. See General Statutes §§ 31-296 and 31-321.

       The commissioner also found that the plaintiffs permanent partial disability payments resumed on January 8, 1985.

         The deposition of Arons was introduced into evidence before the trial commissioner.

       The report of the surveillance included notes from October 12 and 28, 1989; November 8, 9, 10, 16 and 29, 1989; December 1, 5 and 7, 1989; and January 8, 9, 13 and 15, 1992.

       On December 27, 1994, the plaintiff filed her “Petition for Review” of the December 19, 1994 decision by the compensation review board. See General Statutes § 31-301.

       General Statutes § 31-300 provides in relevant part: “As soon as may be after the conclusion of any hearing, but not later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award. ...”

       In her brief in this court, the plaintiff claims that the commissioner failed to render a decision on the defendant’s form 36, which was filed on February 28,1985, until December 19, 1994, almost ten years later, in violation of her right to due process of law. In doing so, she refers “to the basic protections of due process of law embodied in the state of Connecticut and United States constitutions.” The claim is briefed in one paragraph' without the citation of any authority. She again referred to it in oral argument and again failed to provide any supporting authority. We decline to review this claim.
      Even if the plaintiffs mere mention of the due process clause in her brief to the compensation review board could be construed as distinctly raising the issue at the trial level, we decline to review this claim because of inadequate briefing to this court. “ ‘Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.’ ” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 249-50 n.3, 524 A.2d 610 (1987), quoting Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984); State v. Hart, 23 Conn. App. 746, 748 n.1, 585 A.2d 103 (1991), rev’d in part on other grounds, 221 Conn. 595, 605 A.2d 1366 (1992). This also applies to constitutional claims. Hayes v. Smith, supra, 66 n.12; Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982); Mazur v. Blum, 184 Conn. 116, 120, 441 A.2d 65 (1981).

       It is instructive to observe that in a similar context one of the factual contents that has been held to validate a judgment voidable under General Statutes § 51-183b is where “the losing party has allowed the defective judgment to stand without objection for an unseasonable period of time and through inaction has enabled the winning party to claim implied consent to the delay that has occurred. See, e.g., Gordon v. Feldman, [164 Conn. 554, 556-57, 325 A.2d 247 (1973)]; Borden v. Westport, [112 Conn. 152, 154, 151 A. 512 (1930)]; Cheshire Brass Co. v. Wilson, [86 Conn. 551, 560, 86 A. 26 (1913)].” Waterman v. United Carribean, Inc., supra, 215 Conn. 693.

       As to this opinion of Werdiger, the commissioner specifically found: “A later review of reports from Dr. Sabshin; Dr. Goodkind; Dr. Scialla; Dr. Chiapetta; Martin DeSomma, D.C.; Dr. Feinglass; Marvin Arons, M.D.; Dr. Hutchinson and Dr. Hasbani confirmed Dr. Werdiger’s conclusion.”

       Workers’ compensation benefits were being paid during the period covered by the surveillance. The defendant has paid the plaintiff weekly workers’ compensation benefits through November, 1994.