author: FREEDMAN, J.

text:
    IN RE SALVATORE P. ET AL.

    (AC 22700)
    Lavery, C. J., and Dranginis and Freedman, Js.

      Argued September 9
    officially released December 10, 2002

      Albert J. Oneto III, with whom was Albert J. Oneto IV, legal intern, for the appellant (respondent mother).

      Karla A. Turekian, assistant attorney general, with whom were Maureen D. Regula, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Eliot D. Prescott, assistant attorney general, for the appellee (petitioner).

      Thomas A. Esposito, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

FREEDMAN, J.

The respondent mother appeals from the denial of her motion to open and to vacate the judgments of the trial court terminating her parental rights with respect to her two minor children. We affirm the judgments of the trial court.

The following facts are necessary for the resolution of the respondent’s appeal. On October 13, 2000, the petitioner, the commissioner of the department of children and families (commissioner), filed petitions to terminate the respondent’s parental rights as to the children. The respondent was served with the petitions via publication in the New Haven Register. On November 6, 2000, the respondent was defaulted for failure to appear in court.

The trial on the termination petitions commenced on January 25, 2001, and lasted for four days. Although the respondent was not present at trial, she was represented by counsel throughout the court proceedings. On April 9, 2001, the court, in a thorough and comprehensive memorandum of decision, terminated the respondent’s parental rights as to both children. The respondent did not appeal from that decision.

On August 24, 2001, the respondent filed a motion to open and to vacate the judgments. In the motion, the respondent asserted that she never had received notice, by service or otherwise, that termination petitions had been filed by the commissioner. She also asserted that she had defenses at the time of the rendition of the judgments, “but was unable to appear to assert such defenses due to her absence . . . .” The respondent attached her affidavit to the motion in which she averred in relevant part that “my defenses regarding the termination proceeding included that I was residing with people who prevented my access to the mails or telephones, that I had been in fear of my safety, that I am the psychological parent and an important parental figure of the minor children . . . .”

Oral argument on the respondent’s motion took place on October 24, 2001. The respondent was present at the hearing on the motion to open and to vacate the judgments but did not testify. At the conclusion of the argument, the court denied the motion. The respondent then filed the present appeal.

I

The respondent first claims that the court improperly denied her motion to open the judgments as a matter of law. In support of that argument, the respondent specifically argues that she was unable to attend the termination trial due to circumstances constituting duress. The commissioner counters that the respondent failed to file her motion within four months of the termination judgments as required by General Statutes § 52-212a and that the court, therefore, properly denied the motion.

General Statutes § 52-212a provides in relevant part that “[ujnless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .’’In the present case, it is undisputed that the judgments terminating the respondent’s parental rights were rendered on April 9,2001. The respondent’s motion to open and to vacate the judgments was filed on August 24, 2001, more than four months after the termination judgments were rendered. The court, therefore, did not have the authority to grant the relief requested by the respondent.

We note, however, that “[cjourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake.” In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992). “Whether proceeding under the common law or a statute, the action of a trial court in granting or refusing an application to open a judgment is, generally, within the judicial discretion of such court, and its action will not be disturbed on appeal unless it clearly appears that the trial court has abused its discretion.” (Internal quotation marks omitted.) Carlin Contracting Co. v. Dept. of Consumer Protection, 49 Conn. App. 501, 503, 714 A.2d 714 (1998). The issue before us is whether the court abused its discretion in refusing to open the judgments on the ground of duress. Under the circumstances of this case, we conclude that the court did not abuse its discretion in denying the motion.

In seeking to open the termination judgments, the respondent had the burden at the hearing to do more than assert an unadorned claim that due to duress, she was unable to attend the termination trial. See Housing Authority v. Lamothe, 225 Conn. 757, 769, 627 A.2d 367 (1993). The motion to open, grounded on duress, necessarily required the court to make a factual determination with regard to the alleged duress. Id.; see also Jenks v. Jenks, 232 Conn. 750, 753, 657 A.2d 1107 (1995). The court in the present case, however, was presented with no evidence at the hearing on which to make that factual determination.

The record reflects that although the respondent was present at the hearing on the motion to open and to vacate the termination judgments, she did not testify, and no evidence was introduced on her behalf as to why the motion to open should be granted. Although the respondent’s affidavit, attached to the motion, indicated that she had been “residing with people who prevented [her] access to the mails or telephones,” and that she “had been in fear of [her] safety,” no evidence was offered in support of those conclusory statements. Although the respondent argues in her brief that “[her] disappearance was the result of duress, not intention,” the court was presented with no evidence on which to make such a finding. The court, therefore, did not abuse its discretion in denying the respondent’s motion to open and to vacate the judgments on the ground of duress.* **

II

The respondent next claims that the court improperly found that service of process by publication was sufficient in this case. We disagree.

The respondent was served with the petitions for termination of parental rights via publication in the New Haven Register. Such service is permissible at least ten days before the date of the hearing in situations in which the respondent’s whereabouts are unknown. General Statutes § 45a-716 (c).

The court’s thorough memorandum of decision reflects the following facts that pertain to the respondent’s claim. The commissioner assumed care of the children in May, 1999. The intention at that time was to work with the respondent toward reunifying her with the children. The commissioner provided services to the respondent in furtherance of that goal. In October, 1999, the respondent’s whereabouts became unknown. She reappeared in April, 2000, and told Francine Leonard, the department caseworker assigned to this case, that she had resumed drug use, was living in a motel in Stratford and was working as a dancer in a topless bar. The respondent told Leonard that she wanted to get back into treatment and get her children back. The commissioner thereafter secured a shelter bed for the respondent, but she never appeared at the shelter. Leonard told the respondent in April, 2000, that if the respondent did not “get her act together,” the commissioner probably would file petitions for the termination of her parental rights. Leonard had no further contact with the respondent.

At the commencement of trial, counsel for the respondent admitted that he had sent letters to the respondent, but that he had not seen her since October, 1999. According to the respondent’s affidavit, attached to the motion to open, she left Connecticut in April, 2000, and did not return until July, 2001.

We recognize that “[n]otice by publication, although sometimes necessary, is not the preferred method for assuring full participation in so significant an impairment of constitutionally protected parental rights.” In re Baby Girl B., supra, 224 Conn. 295. In the present case, however, the respondent chose to absent herself and to make her whereabouts unknown after having been informed that petitions to terminate her parental rights could be filed. Her interests were, however, represented by counsel during the proceedings on the termination petitions.

At a conference prior to the commencement of trial, counsel for the respondent inquired whether an attorney or guardian ad litem should be appointed to do a diligent search for the respondent. In response, the court expressed its views about how the respondent had been given chances to engage in services and then had disappeared. We agree with the court and conclude that in this case, in which the respondent’s whereabouts were unknown, service properly was effected via publication.

Ill

The respondent next claims that the court improperly acted on the motion to open. The respondent argues that the court, having presided over the trial at which the respondent was not present, was unable objectively to decide the motion to open, and, therefore, it should have been referred to another judge. We disagree.

The respondent did not file a motion for disqualification of the trial judge prior to or during the argument on the motion to open. “It is a well settled general rule that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for disqualification or a motion for mistrial.” Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990). Because the respondent did not file a motion for disqualification, she cannot prevail on her claim that the motion to open should have been heard by another judge.

The judgments are affirmed.

In this opinion the other judges concurred.

       The court also terminated the parental rights of the respondent fathers of each of the children. Because neither father has appealed, we refer in this opinion to the respondent mother as the respondent.

       The commissioner points out that the respondent’s reliance on General Statutes § 52-212 to support the opening of the termination judgments is inaccurate, as § 52-212 refers to the opening of a default judgment. The commissioner further contends that although the respondent was defaulted, the termination judgments were rendered after a contested four day trial in which the respondent was represented by counsel. The commissioner argues, therefore, that the applicable statute is General Statutes § 52-212a. We note, however, that both §§ 52-212 and 52-212a contain the requirement that a motion to open be filed within four months of the date on which judgment is rendered or passed.

       See footnote 2.

       The commissioner contends that because she did not waive or consent to the waiver of the four month time limit, the court was without jurisdiction to grant the requested relief. In Kim v. Magnotta, 249 Conn. 94, 102-103, 733 A.2d 809 (1999), our Supreme Court held, however, that General Statutes § 52-212a acts “as a limitation on the trial court’s general authority to grant relief from a judgment, not as a limitation on its personal jurisdiction over the parties.”

       We recognize that Lamothe and Jenks involved stipulated judgments in which the motion to open was filed within four months.

       The commissioner correctly pointed out during oral argument on the motion to open that “the supporting affidavit that was prepared by the mother, does not in any way, shape or form explain why she wasn’t able to even make a phone call to anybody, not to her mother, not to [the department of children and families], not to a cousin. . . .
      “The mother fails in her affidavit to indicate what her defenses might be to a termination of parental rights. She also fails to identify how she was prevented from returning to the state of Connecticut. She doesn’t indicate why she was able to come back to the state of Connecticut in April of 2000. And I believe that was when the social worker testified that she offered the mother assistance. And then the mother disappeared again.”

       The court questioned counsel for the respondent as to whether the respondent had sought assistance during the alleged time of duress, and the response was that she had not. The following colloquy, in relevant part, occurred between the court and the respondent’s counsel:
      “The Court: Did your client ever ask law enforcement for help? Did she ever ask for the witness protection program? Did she ever [ask] to be taken into protective custody? Did she ever ask the state of Connecticut for — for help in keeping her safe?
      “[Respondent’s Counsel]: I don’t believe that she did, Your Honor.”

       The respondent raises two additional arguments in support of her claim that the court improperly denied her motion to open. She first argues that the court, at trial, improperly struck the cross-examination testimony of a department of children and families worker who possessed knowledge that the respondent was being held against her will. As to that claim, we note that the issue presently before this court is whether the trial court properly denied the respondent’s motion to open in the absence of any evidence to support her claim of duress. Evidentiary rulings made during the course of the underlying termination proceedings, on which no appeal was taken, are not properly before this court.
      The respondent also argues that the court improperly relied on the best interest of the child standard in denying the motion to open. With regard to that claim, we simply refer to General Statutes § 45a-719, which provides in relevant part: “The court may grant a motion to open or set aside a judgment terminating parental rights pursuant to section 52-212 or 52-212a or pursuant to common law or may grant a petition for a new trial on the issue of the termination of parental rights, provided the court shall consider the best interest of the child, except that no such motion or petition may be granted if a final decree of adoption has been issued prior to the filing of any such motion or petition. . . .” (Emphasis added.)

       General Statutes § 45a-716 (c) provides in relevant part: “If the address of any person entitled to personal service or service at the person’s usual place of abode is unknown, or if personal service or service at the person’s usual place of abode cannot be reasonably effected within the state or if any person enumerated in subsection (b) of this section is out of the state, a judge or clerk of the court shall order notice to be given by registered or certified mail, return receipt requested, or by publication at least ten days before the date of the hearing. Any publication shall be in a newspaper of general circulation in the place of the last-known address of the person to be notified, whether within or without this state, or if no such address is known, in the place where the termination petition has been filed.”

       The court stated in part that “[t]his isn’t a situation where she wasn’t aware of what’s going on. You know, it’s not a situation where there’s a real question of whether she ever knew that she was the mother of these children, which is often the case when it’s the father. They tried to engage her in services, she didn’t want to know about it. . . . She has chosen not to be involved in these children’s lives, and she has, you know, chosen not to take advantage of services that were offered. It’s not something where I feel as though we omitted anything. She doesn’t want to be found, my guess is.”


source: Caselaw Access Project

author: BISHOP, J. PETERS, J.,

license: Public Domain

text:
    BRIAN WASKO ET AL. v. JAMES MANELLA
    (AC 22286)
    Mihalakos, Bishop and Peters, Js.
    Argued September 12
    officially released December 10, 2002

      John C. Turner, Jr., for the appellant (defendant).

      ErikE. Roberts, for the appellee (substitute plaintiff).
   Opinion

BISHOP, J.

This appeal presents a novel question regarding an insurer’s subrogation rights when a houseguest accidentally bums down an insured’s vacation home. The defendant, James Manella, appeals from the trial court’s award of $132,505 to the plaintiff, Mid-dlesex Mutual Assurance Company (Middlesex), which insured and paid the claim on the destroyed house. Manella contends that the court improperly concluded that the insurance company has a right of subrogation against him, that the court should have allowed testimony by the insured as to his understanding of the insurance contract and that the calculation of the damages award was faulty. We reverse the judgment of the trial court.

The facts in this case are not in dispute. In 1993, Brian Wasko and Phyllis Wasko, residents of Weston, owned a house on Shore Road in Goshen that they used primarily on weekends and vacations. Manella was a friend and business associate of the Waskos who had recently moved to New York City. The Waskos offered to let Manella stay at their house in Goshen on the weekend of February 5, 1993, with the proffered hope that he might be interested in renting or buying it in the future. Manella accepted that offer. While at the house in Goshen, he lit a fire in the fireplace, and, when he was ready to return to New York, he emptied the ashes and embers into a paper bag, which he placed outside on the porch. After he departed, the house caught fire and was substantially destroyed. The fire marshal of the town of Goshen determined that the ashes and embers in the paper bag had caused the blaze.

The house was insured under a homeowners policy from Middlesex. Pursuant to the insurance policy, Mid-dlesex paid the Waskos $48,500 for the lost personal property and $84,005 for the lost dwelling for a total of $132,505. In October, 1993, the Waskos brought an action against Manella sounding in negligence, recklessness and res ipsa loquitur. In March, 1997, Middlesex was substituted as the real party in interest.

On April 14,2000, Manella filed a motion for summary judgment on all counts, of which only the negligence count survived. At that time, Manella argued that Mid-dlesex had no right of subrogation and that a social houseguest should be considered an “implied co-insured” under the policy. The court was unpersuaded. On October 13, 2000, it held, in a memorandum of decision, that Middlesex could subrogate the Waskos’ claim because the homeowners policy did not specify coverage for social guests. In short, Manella was not an insured under the terms of the policy.

In the subsequent trial to the court on July 24 and 25, 2001, the court found that Manella had been negligent and that his negligence had caused the destruction of the Waskos’ house and personal property. The court awarded Middlesex $132,505 in damages.

In this appeal, Manella argues that Middlesex does not have a right of subrogation against a social guest. Manella further argues that the court improperly precluded Brian Wasko, the insured, from testifying as to his understanding of the scope of coverage of his homeowners policy and that the calculation of replacement value of the personal property was determined inaccurately. Because we agree with Manella as to the first claim, which is that Middlesex has no right of subrogation against him, we need not reach the remaining issues.

Our analysis begins with a consideration of the nature of subrogation. Subrogation is a concept that has its roots in doctrines of equity, and it is applied by operation of law. 83 C.J.S., Subrogation § 3 (b) (1953). “The determination of what equity requires is a matter for the discretion of the trial court. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Rosenblit v. Williams, 57 Conn. App. 788, 792, 750 A.2d 1131, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000). When the court draws conclusions of law, our review is plenary. Torres v. Waterbury, 249 Conn. 110, 118, 733 A.2d 817 (1999).

The right of subrogation, though it originates from principles of equity, can arise out of statute, the common law or contract. R. Keeton & A. Widiss, Insurance Law (1988) § 3.10 (a) (1), p. 220. In its simplest form, subrogation allows a party who has paid a debt to “step into the shoes” of another (usually the debtee) to assume his or her legal rights against a third party to prevent that party’s unjust enrichment. Id., 219. In that way, an insurance company, for example, can be substituted for the insured in an action against a third party tortfeasor. The insured, having been paid by the insurer, in essence, transfers his rights against the tortfeasor to the insurer. The insurer, thus, can attempt to collect from the party that caused the loss to the extent expended by the insurer in satisfying the claim.

Typically, two types of subrogation are distinguished, conventional and equitable. Westchester Fire Ins. Co. v. Allstate Ins. Co., 236 Conn. 362, 370, 672 A.2d 939 (1996). Conventional subrogation, which is closely associated with the principle of assignment, arises only by agreement between two parties, after a loss, when a party, under no obligation to do so, pays the debt of another. Id., 371. Where, as here, the insurer clearly has an interest in the matter and acquires that interest before the loss occurs, conventional subrogation, it would seem, is not applicable. See id.

In contrast, equitable subrogation arises strictly as a matter of equity, regardless of whether there is an explicit agreement. Id. “It is designed to promote and to accomplish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, injustice, equity, and good conscience, should pay it.” (Internal quotation marks omitted.) Id. In the past, equitable subrogation could be applied in “every instance in which one person, not acting as a mere volunteer or intruder, pays [the] debt for which another is primarily hable, and which in equity and good conscience should have been discharged by the latter.” (Internal quotation marks omitted.) Id.

The distinction between conventional and equitable subrogation is pertinent to our consideration of the issue this appeal presents. At first blush, conventional subrogation, also known as contractual subrogation, might seem to be the appropriate descriptor of the insurer’s right, in this case, because there are explicit terms in the insurance contract that refer to the insurer’s right of subrogation. Specifically, in the “subrogation” clause of the insurance contract, the language recites that the insurer may require an assignment of rights of recovery, and, if asked, the insured must cooperate. Here, the Middlesex did, in the course of events, require the assignment, and the Waskos dutifully cooperated. If, in fact, the insurer’s right of subrogation rested on that clause, we would be reluctant to abrogate the subrogation rights for which the parties contracted.

The contract, however, is not the source of the right, but rather is a reference to those rights that may exist at law or in equity. Despite the contractual language, the basis of the insurer’s right of subrogation in this case is equitable. “A right of true [equitable] subrogation may be provided for in a contract, but the exercise of the right will, nevertheless, have its basis in general principles of equity rather than in the contract, which will be treated as being merely a declaration of principles of law already existing.” 83 C.J.S., supra, § 3 (b). “The right of [equitable] subrogation is not a matter of contract; it does not arise from [the] contractual relationship between the parties, but takes place as a matter of equity, with or without an agreement to that effect.” Id. In sum, the subrogation clause in the insurance policy before us merely requires the insured to yield to the insurer those subrogation rights that equity provides. We conclude, therefore, that the plaintiffs right of subrogation is meted by principles of equity. That understanding better comports with the characterization of equitable subrogation in Westchester Fire Ins. Co.

Having determined that the insurer’s right of subrogation is equitable in nature, we turn to a consideration of its reasonable parameters. The recently decided case of DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819 (2002), illuminates the bounds of the equitable right of subrogation in the insurance context. In DiLullo, the issue was whether, in the absence of a specific agreement between the landlord and tenant, a landlord’s fire insurer has a right of subrogation against a tenant for negligently causing a fire that damaged the rented property. Id., 848. In particular, the court sought a default rule for when landlords and tenants fail to explicitly allocate their risks in their leases or elsewhere. Id., 851.

Founding its decision on Connecticut’s strong public policy against economic waste, our Supreme Court determined that when two (or more) parties have an insurable interest in a premises, it would be economically redundant for them to have identical or overlapping coverage. Id., 854. When principles of equity are invoked, such as with subrogation, a court must examine both the public policy implicated and the basic elements of fairness. Id., 853. In doing so, the court concluded that it would be inappropriate to create a default rule that would require that every tenant carry sufficient insurance to cover the cost of an entire building that was, presumably, already insured by the landlord. Id., 854. “This duplication of insurance would, in our view, constitute economic waste and, in a multiunit building, the waste would be compounded by the number of tenants.” Id.

Following the reasoning in DiLullo, we conclude that it would be similarly wasteful to require that every individual carry insurance on every building he or she enters, if only briefly, to avoid the consequences of a subrogation suit. Moreover, the strain on the limits of equity is, we believe, even greater when the situation involves a host and guest. We premise that conclusion on several reasons. Where, in a landlord-tenant relationship, the lease provides a convenient mechanism for cost allocation, in a host-guest relationship there is rarely any explicit agreement that might allow the insertion of terms to allocate risks. Most visits occur “in the absence of an express agreement between the parties covering the question . . . .’’Id., 850. Also, to suggest that every houseguest should cariy a liability policy adequate to protect him or her from the consequences of negligence in another’s home would cause significant economic waste because the insurance necessary for the protection against a home’s loss would be multiplied by the number of guests staying at or visiting the residence. Finally, we can reasonably contemplate the significant difficulties insurance carriers would have in determining premium costs in order to make roaming property damage insurance policies available to guests and visitors, whose visiting habits would be elusive to prediction. In contrast, such premium pricing difficulties do not attend insuring property of ascertainable value.

In DiLullo, our Supreme Court was persuaded by the reasoning that “in most instances, neither landlords nor tenants ordinarily expect that the landlord’s insurer would [proceed] against the tenant, unless expert counseling to that effect had forewarned them. ” Id., 854. With the informality inherent in a host-guest relationship, the expectation of an insurer’s subrogation suit, we believe, would be even more removed.

Although there are many states that have adopted the rule barring subrogation against tenants, Middlesex argues that this case is significantly different because it involves neither a landlord-tenant relationship nor a guest who is a relative. The Waskos’ insurance policy names as additional insureds residents of the household who are relatives and their minor charges. In this somewhat uncharted territory of equitable principles, for determining whether a right of subrogation should he, we find that the actual relationship between the insured and the defendant is more compelling than whether the defendant fits into a category of coinsureds, as contractually defined.

On that point, we find the reasoning in Reeder v. Reeder, 217 Neb. 120, 348 N.W.2d 832 (1984), to be persuasive. In Reeder, a guest caused fire damage to the house at which she was staying, and the trial court denied the host’s insurer the right of subrogation. While the facts in Reeder involved one brother and his family staying as guests at another brother’s house, the Nebraska Supreme Court was explicit in its characterization of their relationship as that of host and guest, and the reasoning used to decide that case did not hinge on their familial ties. The court stated that characterizing their relationship as that of landlord-tenant or licen-sor-licensee also was immaterial and unhelpful. “The arrangement, for whatever difference placing titles on it may be, was really that of a host and guest.” Id., 125-26. Having found that the relationship was one of host and guest, the court in Reeder found that it would be inequitable to permit the homeowner’s insurer to have a right of subrogation against the homeowner’s guest. Id., 129.

By adopting the reasoning of DiLullo, this court arrives at the same conclusion as did the court in Reeder, albeit by a different route. In Reeder, the court reasoned that “[the] question is not whether the relationship between the brothers was that of landlord/ tenant or licensor/licensee, but whether the earner, by seeking to recover from [the homeowner’s] ‘guest,’ is, in effect, seeking to recover from the insured himself for the very risk that the carrier insured and for which it received premiums.” Id., 126. In that light, in contrast to the principle of subrogation, the guest, as opposed to the insurer, is seen as “stepping into the shoes” of the insured homeowner. This characterization effectively preempts subrogation, as an insurer generally is forbidden from using subrogation against its insured. Id., 128-29.

The court in DiLullo declined to adopt the “implied co-insured” theory that was found to be persuasive to the trial court (and to the court in Reeder) and affirmed the decision on other grounds. The court concluded that, in such cases, the denial of subrogation was “sound as a matter of subrogation law and policy . . . outweighing] the criticisms and the usual rules of insurance and contract law.” DiLullo v. Joseph, supra, 259 Conn. 853. Similarly, we are convinced by the fairness of the result in Reeder.

We find it fair — and fairly within the contemplation of the insured — that one of the benefits of purchasing homeowners insurance is that the insureds need not sue their guests who negligently cause damage, even though they would be within their rights to do so. As DiLullo shows, an insurer is not entitled, in every case, to step into the shoes of the insured. Subrogation “is a fluid concept depending upon the particular facts and circumstances of a given case for its applicability. To some facts subrogation will adhere — to others it will not.” Sutton v. Jondahl, 532 P.2d 478, 482 (Okla. App. 1975).

Insurance carriers are in the better position to assess the risks associated with insuring property and are more capable of doing so than houseguests or their liability carriers who cannot reasonably be expected to anticipate the costs of damage that the guests may cause to unknown properties. They know, or should know, that a rental property will have tenants and that a person’s home will have houseguests. The argument that insurers need to be able to choose whom exactly will be covered by the policies they issue is not persuasive because insurers know the value of the property they insure and may reasonably anticipate the likelihood of a loss occurrence with substantially more certainty than a guest can anticipate the loci of his or her visits to come. That insurers do not know exactly who may pass through a homeowner’s door does not make their risks unmanageable, whereas the requirement that houseguests either enter a series of risk allocating negotiations with their hosts or financially brace themselves for the potential replacement cost of every structure they visit could be prohibitive, even if it could be calculated in advance. We conclude that a policy on subrogation that would encourage economic waste and lawsuits against the invited guests of insureds, while drawing distinctions that would create classes of houseguests based on heredity, marital status and length of stay, does not comport with sound social policy, consumer expectations or with the principles of fairness that the principles of equity espouse.

Accordingly, we hold that in keeping with DiLullo, subrogation should not be allowed against a houseguest whose negligence causes damage to the property of an insured homeowner.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion MIHALAKOS, J., concurred.

PETERS, J.,

dissenting. This is a very hard case. As the old adage goes, hard cases make bad law.

The legal issue in this case is the proper allocation of a risk of loss. A building has suffered fire damage as the result of the negligence of an invited guest. Should the risk of loss be assigned to the negligent guest or to the insurance company that provided homeowners insurance coverage against the risk of loss with respect to the property that was severely damaged?

The answer to this question would be obvious if the homeowners insurance policy provided coverage for the insured property for the benefit of all comers. The undisputed fact is that it does not. The policy lists those who are covered insureds, and a guest is not one of them.

Perhaps, despite the unambiguous language of the insurance policy, it might be possible to shoehorn persons in the position of the negligent guest into the list of covered insureds. It is established law that, despite a subrogation clause in the insurance policy, the principle of equitable subrogation precludes an insurer from recovering for a loss arising out of the negligence of one of its own insureds. The insureds have paid for all property losses, including those arising out of their own negligence. 6A J. Appleman & J. Appleman, Insurance Law and Practice (Cum. Sup. 2002) § 4055. Courts in other jurisdictions have treated unlisted members of an extended family as if they were insureds by calling them coinsureds. See, e.g., Continental Ins. Co. v. Bottomly, 250 Mont. 66, 70, 817 P.2d 1162 (1991); Reeder v. Reeder, 217 Neb. 120, 126-27, 348 N.W.2d 832 (1984). In Sutton v. Jondahl, 532 P.2d 478, 482 (Okla. App. 1975), the court extended the category of coinsureds to include a tenant.

The problem with going down that road is that our Supreme Court, in DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819 (2002), has held that a person in the position of a tenant, or inferentially a guest, is not a coinsured person. Id., 853. I am bound by that holding.

If a negligent guest is not a coinsured person, what is the basis for assigning the risk of loss to the insurer? Like other contracting parties, insurers have the right to determine whom they will insure.

In my view, it is anomalous to hold that, as a matter of equitable principles, an insurer may not exercise its contractual right of subrogation against a negligent guest who is not a coinsured. The underlying assumption seems to be that the negligent guest should never be responsible as long as his host has homeowners insurance. Why?

In at least two sets of circumstances, a negligent guest would be liable for the loss that he caused. If the homeowner had no insurance coverage, or inadequate insurance coverage, or had decided, perhaps to avoid premium increases, not to access his insurance coverage, a negligent guest would be liable to the homeowner. The same result would ensue if a negligent guest had some applicable insurance of his own that could be tapped either by the homeowner or the homeowner’s insurer by way of its subrogation rights. The issue of economic waste would simply not arise in either of these sets of circumstances.

The assignment of the risk of loss to the insurer in this case seems to turn, therefore, on matters beyond the insurer’s control. Why is it proper to assume that the homeowners’ insurer was responsible for a risk of unknowable proportions to which the homeowners policy does not allude? If such a risk was not assumed, I am puzzled why it is unjust to permit the homeowners’ insurer to enforce a subrogation clause against someone who is not a coinsured.

Despite my personal reservations, I recognize that our Supreme Court has held that an assignment of risk to an insurer rather than to a tortfeasor is appropriate in the landlord-tenant context. Id., 853-55. That holding may be explained by the ability of an insurer of a landlord to foresee the possibility of negligence by the relevant legal actors. Landlords will have tenants and some tenants will be negligent. Who carries what insurance can be traded out, and the insurer of the landlord properly may be held to have assumed the risk of loss as a default position. With whom could the homeowners’ insurer have traded it out in this case? Certainly not with the guest.

The problem with a straightforward answer in favor of the insurer is that it strikes us as unjust. Economically speaking, we presume that an insurer, having provided coverage for the damaged premises by means of a homeowners insurance policy, is better able to spread the risk of loss caused by negligent guests than is a single guest by himself.

I think one reason why the result seems unjust is that, in our mind’s eye, we are led to look at this case in the way that we are accustomed to look at automobile insurance policies. For such policies, it has become standard practice to extend insurance coverage to a permissive user of a covered automobile. See, e.g., Middlesex Ins. Co. v. Quinn, 225 Conn. 257, 264 n.8, 622 A.2d 572 (1993). Indeed, the Oklahoma Court of Appeals, in Sutton v. Jondahl, supra, 532 P.2d 482, relied on this analogy as one of its reasons for providing coverage for a landlord’s tenant.

It is fanciful to think that, if the homeowners had thought about it, they could have bargained for an additional clause in their property insurance policy to provide protection for negligent guests. People don’t haggle with insurance agents about the standard provisions of insurance policies because insurance agents cannot change them.

It is because, in this sense, insurance contracts are different from ordinary contracts that the insurance business has become a regulated industry. See Serrano v. Aetna Ins. Co., 233 Conn. 437, 453, 664 A.2d 279 (1995). As a regulated industry, insurers who sell insurance policies in this state must conform their policies to include certain designated essential terms. These terms differentiate between different types of insurance.

For automobile insurance, § 38a-334-5 (d) of the Regulations of Connecticut State Agencies requires automobile liability insurance to extend protection not only to the named insured but also to other persons using the automobile with the permission of the named insured. See also General Statutes § 38a-335. Although there are some exceptions, they are irrelevant for present purposes.

As best I can tell, there is no similar requirement with respect to homeowners insurance policies. The essential terms for such insurance are described in General Statutes §§ 38a-307 and 38a-308. See also General Statutes § 38a-689.1 have been unable to find any regulation that mandates protection for guests who have permission to use the insured property. In sum, protection for negligent guests is not an essential term in a homeowners policy.

It is tempting for us to fill the gap to provide parallel coverage for both kinds of insurance. Prima facie, the need to protect permissive users is equally compelling for both kinds of insurance. Gap-filling is, after all, an accepted judicial practice in the construction of statutes; Ahern v. Thomas, 248 Conn. 708, 718, 733 A.2d 756 (1999); New England Cable Television Assn., Inc. v. Dept. of Public Utility Control, 247 Conn. 95, 114, 717 A.2d 1276 (1998); Renz v. Allstate Ins. Co., 61 Conn. App. 336, 345, 763 A.2d 1072, cert. denied, 255 Conn. 945, 769 A.2d 59 (2001); and of negotiated contracts. Willow Funding Co., L.P. v. Grencom Associates, 63 Conn. App. 832, 844, 779 A.2d 174 (2001); 1 E. Farnsworth, Contracts (2d Ed. 1998) § 3.28, p. 398.

I am not persuaded, however, that this rule of construction applies to a standard contract in a regulated industry. At least in the first instance, an insurer should be able to enforce the terms of an insurance contract that our insurance commissioner and our legislature have approved. The place for trading out the terms to be included in a homeowners insurance policy is in the commissioner’s office.

I recognize that I am not on the side of the angels in this case. Nonetheless, I would not extend the holding of DiLullo beyond its facts. Accordingly, I respectfully dissent.

       Middlesex is the substitute plaintiff subrogee for the subrogors, Brian Wasko and Phyllis Wasko, the insured homeowners who no longer are parties in interest to this action.

       The court ruled that res ipsa loquitur is not a cause of action in itself, but merely a method of proving negligence. The recklessness count was dismissed because it would have allowed Middlesex to recover punitive damages, i.e., more than it had disbursed to the Waskos, which would contravene statutory limits on subrogation. See General Statutes § 38a-307. The court’s decision on the recklessness and res ipsa loquitur counts has not been challenged.

       See also R. Keeton & A. Widiss, Insurance Law (1988) § 3.10 (a) (l)-(2), pp. 219-23; see Restatement (First), Restitution, Subrogation § 162, comment (a), p. 653 (1937).

       Middlesex’s homeowner’s insurance policy states: “An insured may waive in writing before a loss all rights of recovery against any person. If not waived, we may require an assignment of rights of recovery for a loss to the extent that payment is made by us. If an assignment is sought, an insured must sign and deliver all related papers and cooperate with us.”

       We leave undecided as unnecessary to our consideration whether that clause is an assignment or a subrogation clause. See M. Quinn, “Subrogation, Restitution, and Indemnity: The Law of Subrogation,” 74 Tex. L. Rev. 1361, 1388 (1996) (book review). “The unnecessary and ill-considered nature of subrogation agreements has been understood for a number of years.” Id., 1390. Professor Quinn suggests that these stock clauses in insurance contracts are best characterized as assignments of subrogation rights, or subrogation agreements, that confer no new rights. Id., 1389. “Although subrogation clauses are very common in insurance policies, on the whole they merely confirm rights that would exist without them, and at most they alter the incidents of legal subrogation in some particulars.” Id., 1390. Traditionally, those particulars are limitations on the right, i.e., waivers and modifications, but they cannot be used to enlarge or to defeat liability. 83 C.J.S., supra, § 3 (b).

       In other words, the right arises when payment is made to the insured. Westchester Fire Ins. Co. v. Allstate Ins. Co., supra, 236 Conn. 372. “Upon such payment, the insurer became subrogated to any rights that its insured might have had against the party who had caused the loss.” Id.

       Most recently, the Supreme Judicial Court of Maine, citing and largely following the reasoning of DiLullo, disallowed a landlord’s insurer from proceeding against a residential tenant in a subrogation action. North River Ins. Co. v. Snyder, 804 A.2d 399, 403-404 (Me. 2002). “To suggest the fire insurance does not extend to the insurable interest of an occupying tenant is to ignore the realities of urban apartment and single-family dwelling renting. . . . Certainly it would not likely occur to a reasonably prudent tenant that the premises were without fire insurance protection or if there was such protection it did not inure to his benefit and he would need to take out another fire policy .... Perhaps this comes about because the companies themselves have accepted coverage of a tenant as a natural thing.” (Internal quotation marks omitted.) Id., 402-403; see Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 776-77 n.4-5, 761 N.E.2d 946 (2002), for a survey of states that have decided the question.

       Middlesex’s homeowner’s insurance policy states: “ ‘[I]nsured’ means you and the residents of your household who are: a. your relatives; or b. other persons under the age of 21 and in the care of any person named above.”

       “This appears to be a case of first impression in this jurisdiction and presents the question of whether one who occupies the home of another with the owner’s permission, and who negligently causes damage to the home, may be sued by the owner’s insurance carrier under a right of subrogation after the insurance carrier has paid the owner for damages.” Reeder v. Reeder, supra, 217 Neb. 121.

       “The word [guest] is descriptive of a relationship known to the common understanding. Besides its somewhat narrow technical significance in statutes, it has a broad, general meaning, implying both a social relationship and the existence of a host; and has been defined in general, as meaning a. person entertained in one’s house or at one’s table, a visitor entertained without pay; a person received and entertained at the house of another, a visitor . . . hence a person to whom the hospitality of a home, club, etc., is extended.” 39 C.J.S. 447, Guest (1976).

       This is known, in the alternative, as the Sutton rule, from Sutton v. Jondahl, 532 P.2d 478 (Okla. App. 1975). The court in Sutton reasoned that a tenant is an implied coinsured of a landlord because they both have an insurable interest in the property, and the landlord charges rent that presumably distributes part of the cost of the insurance premium to the tenant. Id., 482.

       “It may be presumed that the insured bought this policy so that he would not have to look to his guest for payment in the event of damage caused by the negligent act of the guest.” Reeder v. Reeder, supra, 120 Neb. 129.

       In the context of subrogation suits, courts have analogized tenants to permissive drivers in automobile insurance. Sutton v. Jondahl, supra, 532 P.2d 482. The characterization of guests as “permissive users” is even more fitting as the use is similarly gratuitous.

       “[The plaintiff] argues that [denying subrogation] jeopardizes most of the insurance industry by exposing insurers to unknown risks. We do not agree. Insurance companies expect to pay their insureds for negligently caused fire, and they adjust their rates accordingly.” (Internal quotation marks omitted.) Agra-By-Products, Inc. v. Agway, Inc., 347 N.W.2d 142, 150 (N.D. 1984). “If subrogation were permitted .... [i]t would also be a windfall for [the insurer] to have collected these premiums over the years for its assumption of this risk and then when the risk actually occurred, by means of this litigation, to transfer the risk wholly . ... ” (Internal quotation marks omitted.) Id., 148.

        Sutton expressly noted that the tenant was in privity with the landlord. Sutton v. Jondahl, supra, 532 P.2d 482. The court’s reasoning is not as persuasive with respect to a guest.

       For this reason, it is my view that the trial court properly excluded evidence about the homeowners’ personal understanding of the terms of the insurance policy. The property owners have not made even a prima facie showing that their homeowners insurance policy was ambiguous or unconscionable in any way. They have not argued that the insurance agent misled them in any way about the terms of the policy or, indeed, that they discussed their interpretation of the policy with the agent. Private reservations, without more, do not trump the language of a contract. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 399, 757 A.2d 1074 (2000); Bonito v. Cambridge Mutual Fire Ins. Co., 64 Conn. App. 487, 490, 780 A.2d 984, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).


author: FOTI, J.

text:
    ALLSTATE INSURANCE COMPANY v. JOHN CALTABIANO
    (AC 22648)
    Poti, Schaller and Peters, Js.
    Argued September 19
    officially released December 10, 2002

      Terence A. Zemetis, with whom was Jane G. Beddall, for the appellant (plaintiff).

      Laurence V. Pamoff for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Allstate Insurance Company, appeals from the judgment of the trial court in favor of the defendant, John Caltabiano. The court denied the plaintiffs application to vacate, correct or modify an arbitration award in favor of the defendant and granted the defendant’s motion to confirm the arbitration award. On appeal, the plaintiff claims, as a matter of law, that the court improperly denied its application because the arbitrators awarded uninsured motorist damages to the defendant insured in excess of the coverage limit stated in the policy that was issued by the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history underlie the plaintiffs appeal. The defendant purchased from the plaintiff an automobile insurance policy effective from February 5, 1989, to February 5, 1990. The policy included, inter alia, an uninsured motorist provision with a stated policy limit of $40,0004 The policy also included a provision binding the parties to submit uninsured motorist claim disputes to a panel of three arbitrators.

The record reflects that the defendant submitted a claim for uninsured motorist benefits after he was involved in a motor vehicle collision on January 20, 1990. He claimed that he sustained injuries as a result of the negligence of a driver of an uninsured motor vehicle and sought to collect, to the extent permitted under the uninsured motorist provision of his policy, the sums that he was legally entitled to recover as damages from the operator of the uninsured motor vehicle. The defendant and the plaintiff disagreed over the uninsured motorist coverage under the policy. The defendant claimed that the $40,000 policy limit stated on the policy’s declaration page was inaccurate. The defendant claimed that he believed that he had, instead, purchased $300,000 in uninsured motorist coverage. The parties thereafter submitted their dispute to a panel of three arbitrators.

On June 7, 2000, the arbitration panel, with one arbitrator dissenting, awarded the defendant $225,000 in damages. As a preliminary matter, the arbitrators found that (1) the defendant had sustained injuries as a result of the negligence of the driver of an uninsured motor vehicle and (2) the defendant sustained $225,000 in damages. The parties do not take issue with either of those findings. The arbitrators also found that the defendant believed that he had purchased $300,000 in coverage but did not check his policy to verify the amount stated therein. Likewise, the arbitrators found that the plaintiffs agent failed to comply with the defendant’s request to purchase $300,000 in coverage. On the basis of those subordinate findings, the arbitrators concluded that an issue of “mutual mistake” as to the policy limit existed between the parties. The arbitrators observed that “the argument could be made that the question of coverage is inherent in the question of damages.” (Emphasis added.) The arbitrators relied on General Statutes § 38a-336 (c), in addition to the foregoing observation, in concluding that the submission before them reached the underlying coverage dispute rather than just the issue of the amount of damages to which the defendant was entitled under the policy. The arbitrators then determined the amount of coverage to be $300,000 and awarded the defendant $225,000.

The plaintiff thereafter filed in the Superior Court an application to vacate, correct or modify the arbitration award. The plaintiff claimed, inter alia, that the arbitrators improperly (1) failed to limit their award to the policy limit, (2) reformed the terms and conditions of the policy when such actions surpassed the scope of the submission before them, (3) reformed the limits of coverage under the policy in the absence of competent evidence and (4) considered issues of reformation of the policy when such a consideration exceeded their authority under the law. The defendant thereafter filed a motion to confirm the arbitration award and to assess interest on the award. The court held that the “dollar amount of the limit of liability for uninsured motorist coverage is a matter of coverage subject to compulsory arbitration by General Statutes (Rev. to 1989) § 38-175c.” The court further held that § 38-175c, as well as precedent from our Supreme Court, strongly expressed the principle that “when ‘coverage’ is at issue in an uninsured motorist dispute, every presumption should be made in favor of having a final determination of coverage issues decided by the arbitrators.” The court denied the plaintiffs application and granted the defendant’s motion to confirm the award.

Before setting forth our standard of review, we first note that General Statutes (Rev. to 1989) § 38-175c, which applies to the contractual agreement between the parties, provides that “[ejvery [automobile insurance] policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of [uninsured motorist] insurance coverage in such arbitration proceeding. . . .” As our Supreme Court has noted, “[c]learly, § 38-175c mandates not only the inclusion of a provision for uninsured motorist coverage in automobile liability insurance policies, but that coverage under such provisions be determined through arbitration when the policy provides that the parties will arbitrate.” Oliva v. Aetna Casualty & Surety Co., 181 Conn. 37, 41, 434 A.2d 304 (1980); see also Wilson v. Security Ins. Group, 199 Conn. 618, 626, 509 A.2d 467 (1986) (characterizing § 38-175c as compulsory arbitration provision in that case).

The dispute between the parties in the present case, and the question resolved by the arbitrators, concerned the amount of coverage to which the defendant was entitled under the policy. The law governing the dispute concerns not the amount of damages that the defendant could recover from the tortfeasor, the operator of the uninsured vehicle, but the limitation on the defendant’s ability to recover damages from the insurer, the plaintiff. Certainly, the issue of the amount of coverage to which a party is entitled under a contract of insurance requires us to determine the respective rights and obligations of the parties to a contract of insurance. As such, under the analysis set forth by our Supreme Court in Quigley-Dodd v. General Accident Ins. Co. of America, 256 Conn. 225, 239, 772 A.2d 577 (2001), the issue before us is not one of damages, but coverage.

Because the issue in this case is one of coverage and coverage issues are subject to compulsory arbitration under § 38-175c, we review the arbitrators’ resolution of the issue de novo. “When an arbitration panel’s interpretation and application of the law is at issue, an appellate court must conduct a de novo review. . . . Conversely, the appropriate standard of review of the factual findings of an arbitration panel is the substantial evidence test. . . . Pursuant to this test, the reviewing court must determine whether there is substantial evidence in the record to support the arbitrators’ findings of basic fact and whether the conclusions drawn from those facts are reasonable.” (Citations omitted; internal quotation marks omitted.) Connecticut Ins. Guaranty Assn. v. Zasun, 52 Conn. App. 212, 223, 725 A.2d 406 (1999). “[R]eview of questions of law includes . . . inquiry into whether the arbitrators have exceeded their powers or imperfectly executed them.” Chmielewski v. Aetna Casually & Surety Co., 218 Conn. 646, 664, 591 A.2d 101 (1991).

The issue in this case is narrow. We are called on to determine only whether the arbitrators were legally correct in concluding that the submission permitted them to award the defendant an amount of damages that exceeded the stated coverage limit on his policy. “An application to vacate or correct an award should be granted where an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission. ... A challenge of the arbitrator’s authority is limited to a comparison of the award to the submission. . . . Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous.” (Citations omitted; internal quotation marks omitted.) State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 85-86, 777 A.2d 169 (2001).

“[T]he charter of an arbitrator is the submission and no matter outside the submission may be included in the award. ... It follows that an award must conform to the submission and is void to the extent to which it is outside the submission. . . . This is particularly so in the case of insurance coverage where risks are actuarily analyzed and premium charges reflect those risks. To layer on additional coverage outside of the contemplation of the parties at the time they entered into the contract would expose the insurer to liability for payments beyond the scope of the agreement.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. Lighty, 3 Conn. App. 697, 700, 491 A.2d 1118 (1985). This case does not present a situation in which coverage has been added to a policy; the arbitrators premised their award on a finding that the written insurance policy did not accurately reflect the amount of uninsured motorist coverage purchased by the defendant.

The submission in this case consisted of the arbitration clause from the plaintiffs policy. That policy language, read together with § 38-175c, clearly granted the arbitrators the power to resolve the issue of the “amount of damages” the defendant was legally entitled to under the policy. The arbitrators determined that amount to be $225,000.

The plaintiff has not demonstrated that the parties, by means of their submission, limited in any way the arbitrators’ ability to award damages in excess of $40,000. We find no such limitation in the policy. Section 38-175c does not impose such a limitation on an arbitrator’s ability to award damages. Given the lack of any such limitation, the arbitrators were essentially'free to resolve the issue of the “amount of damages” as long as their findings in that regard were supported by substantial evidence and their legal conclusions were accurate. The parties do not challenge those issues.

Our holding is bolstered by our Supreme Court’s interpretation of § 38-175c. Our Supreme Court has stated that the legislative intent and effect of the statute “is to remove from the court and to transfer to the arbitration panel the function of determining, in the first instance, all issues as to coverage under automobile liability insurance policies containing uninsured motorist clauses providing for arbitration.” Oliva v. Aetna Casualty & Surety Co., supra, 181 Conn. 42. In light of the legislative intent to have “all coverage issues” resolved by arbitration when a policy contains a provision for binding arbitration, and on the basis of the submission in this case, which contained no limit as to the damages amount the arbitrators were empowered to award the defendant, we have no basis on which to conclude that the arbitrators exceeded their powers when they awarded damages in excess of the stated policy limit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Included in the defendant’s policy was a provision entitled “LIMIT OF INSURANCE,” which states: “Regardless of the number of covered ‘autos,’ ‘insureds, ’ premiums paid, claims made or vehicles involved in the ‘accident, ’ the most we will pay for all damages resulting from any one ‘accident’ is the LIMIT OF INSURANCE for UNINSURED MOTORISTS COVERAGE shown in the Declarations.”

       The relevant portion of the provision entitled “ARBITRATION” states: “If we and an ‘insured’ disagree whether the ‘insured’ is legally entitled to recover damages from the owner or driver of an ‘uninsured motor vehicle’ or do not agree as to the amount of damages, either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either party may request that selection be made by a judge of a court having jurisdiction. Each party will pay expenses it [incurs] and bear the expenses of the third arbitrator equally.”

       The third arbitrator from the panel that considered the submission filed a dissenting opinion in which he considered the issue of the amount of uninsured motorist coverage to which the defendant was entitled under the policy, but disagreed with the majority’s finding that the defendant had demonstrated the existence of a “mutual mistake” between the parties. As a result, the dissenting arbitrator stated that he would have awarded the defendant 1he full amount permitted under the terms of the policy, $40,000.

       The arbitrators found in relevant part as follows in that regard: “The [defendant] testified that at all times he thought he had $300,000 uninsured motorist coverage. The [plaintiff] introduced the application for coverage form, showing the uninsured motorist coverage stated thereon is $40,000. The [defendant] testified that the first time he learned about the $40,000 coverage was after the accident, when his lawyer ... so advised him. The [defendant] had spoken to an Allstate agent, Joseph Pietrosante, who confirmed to him that the correct policy limits for uninsured motorist coverage was $300,000, that the stated amount on the policy declaration sheet was a mistake and that he would correct the same to reflect the $300,000 figure. The [plaintiff] introduced an affidavit from Mr. Pietrosante, not denying the conversation but stating that he does not recall having a conversation with [the defendant] regarding his uninsured motorist coverage from $40,000 to $300,000. The arbitrators accept the testimony of the [defendant] in this regard.”

       General Statutes § 38a-336 (c) provides in relevant part: “Each automobile liability insurance policy issued on or after October 1, 1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding.
      . . .” We note that this statute essentially is similar to General Statutes (Rev. to 1989) § 38-175e, which governs this dispute.

       See General Statutes §§ 52-418 and 52-419.

       In addition to seeking other relief, the plaintiff asked the court to order that the arbitrators’ decision be vacated insofar as it found that it provided $300,000 in uninsured motorist coverage or that the decision also be corrected so as to limit the award to the policy limit of $40,000.

       See General Statutes § 52-417.

       In its application to vacate, the plaintiff challenged the evidentiary basis of the arbitrators’ finding that the defendant had purchased $300,000 in coverage. The court properly declined to review that factual issue because the parties failed to preserve a record of the proceedings that transpired before the arbitration panel. See Chmielewski v. Aetna Casualty & Surety Co., supra, 218 Conn. 663. The plaintiff concedes in its principal brief that the lack of an evidentiary record of the proceedings before the arbitrators precludes review of such determinations.

       See footnote 2. The plaintiff argued, in its posttrial brief submitted to the trial court, that “[t]he scope of the arbitration was defined by the written contract between the parties.” Further, the plaintiff submitted to the court the affidavit of Robert R. Petracelli, an attorney and the neutral arbitrator on the arbitration panel in this case. Petrucelli averred that “[n] either party made any restriction: (1) on the powers or authority of the arbiters to decide ail issues of law and fact; or (2) limiting the issues to be decided by the arbiters; or (3) limiting the basis on which issues were to be decided by the arbiters.” The defendant also represented to the court that “[t]here were no written restrictions limiting: (a) the powers of the arbitrators, (b) the scope of the arbitration, (c) the scope of the submission to the arbitrators, nor (d) the issues submitted to the arbitrators for their determination.”


text:
    STATE OF CONNECTICUT v. DAVID OBERDICK
    (AC 21885)
    Foti, Mihalakos and Healey, Js.

      Argued October 17
    officially released December 10, 2002

      Ronald F. DeMatteo, special public defender, for the appellant (defendant).

      Thomas M. DeLillo, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and Elizabeth Bodine, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, David Oberdick, appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to commit burglary in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-102 (a) and one count of burglary in the third degree in violation of General Statutes § 53a-103 (a). On appeal, the defendant claims that the evidence did not support the conviction for those counts. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At all relevant times, Hector Pouliet rented two separate rooms on the second floor of an apartment building in New Haven. Pouliet used one of the rooms as his living quarters and used the other to store some of his possessions. Those possessions included several bottles of liquor, some of which contained vodka. The defendant and Rose Daniels were acquaintances of Pouliet and occasionally visited with him at his residence. At trial, the manager of the apartment building testified that Daniels, whom he described as often being intoxicated, had become a “nuisance.” For that reason, the building manager informed the defendant that Daniels was not permitted in the building.

The defendant and Daniels had consumed alcoholic beverages in each other’s company and did so on September 18, 2000. The defendant and Daniels began drinking, along with another acquaintance, that afternoon. At or around 10:30 that evening, the defendant and Daniels arrived at the front of Pouliet’s apartment building. Several weeks before, Pouliet had informed Daniels that he was going to be vacationing in New Hampshire and that he would not be in Ms apartment until approximately September 19, 2000. Pouliet did not give either the defendant or Darnels permission to enter Ms premises while he was away. By 10:30 p.m. on September 18, 2000, the defendant and Darnels had consumed all of the liquor that they possessed, but they both knew that Pouliet kept a stash of liquor in one of Ms rented rooms.

Once at the apartment building, Darnels stood behind a pole near the sidewalk and kept a lookout while the defendant kicked the front door open. After domg so, the defendant entered the building tMough the broken door. Darnels followed the defendant into the buildmg, and the two made their way to Pouliet’s storage room. Either the defendant or Darnels also damaged an interior doorway, thereby gaining access to the second floor. The defendant took a bottle of Pouliet’s vodka from the storage room before the police arrived and apprehended him and Daniels. Additional facts will be set forth as they become relevant in the context of the defendant’s claims.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 282, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). We now will apply that standard of review to each of the defendant’s claims.

I

The defendant first claims that the evidence did not support his conviction for conspiracy to commit burglary in the second degree in violation of §§ 53a-48 (a) and 53a-102 (a). We disagree.

As an initial matter, we set forth the essential elements of the crime of which the defendant stands convicted. To convict the defendant for the crime of conspiracy to commit burglary in the second degree, the state must prove that a conspiracy existed. Under § 53a-48 (a), the state must prove (1) that the defendant intended that conduct constituting a crime be performed, (2) that the defendant agreed with one or more persons to engage in or to cause the performance of such conduct and (3) that any one of them committed an overt act in furtherance of such conspiracy. The state must further prove that the object of the conspiracy was to commit the crime of burglary in the second degree. Under § 53a-102 (a), the state must prove (1) that the defendant entered or remained unlawfully in a dwelling, (2) that this occurred at night and (3) that the defendant intended to commit a crime therein. The state alleged that the defendant intended to commit the crime of larceny as defined in General Statutes § 53a-119.

The defendant argues that the state failed to prove beyond a reasonable doubt either (1) that he intended that conduct constituting a crime be performed or (2) that he agreed with one or more persons to engage in or cause the performance of such conduct. The defendant argues that “no direct evidence was produced to demonstrate that [he] ever intended to commit a crime when he kicked in the door” leading to Pouliet’s building. The defendant also relies on Daniels’ testimony at trial. Daniels testified that she was going to Pouliet’s apartment that evening to retrieve her keys and that she had Pouliet’s permission to do so. Daniels also testified that she so informed the defendant. Daniels further testified that she gave the defendant a bottle of vodka that belonged to her on the night of the incident because the defendant had a pocket in which to carry the bottle. Daniels testified that Pouliet had been keeping that bottle of vodka for her and that he had told her to come by and get it whenever she so desired. The defendant posits that this explanation of events precluded a finding by the jury that he intended to commit any crime on September 18,2000. Essentially, the defendant urges us to accept as true his representation that “his intentions were innocent.”

To demonstrate the existence of a conspiracy between one or more parties, “[t]he existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence. . . . The state need not prove that the defendant and a coconspirator shook hands, whispered in each other’s ear, signed papers, or used any magic words such as we have an agreement.” (Internal quotation marks omitted.) State v. Gonzalez, 69 Conn. App. 649, 653, 796 A.2d 1225, cert. denied, 260 Conn. 937, 802 A.2d 91 (2002).

With regard to the essential element of intent, we recognize that conspiracy is a specific intent crime. Intent is divided into two parts: “(1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy.” (Internal quotation marks omitted.) State v. Kenney, 53 Conn. App. 305, 312, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999). “Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. ... In a conspiracy prosecution, when determining both a defendant’s specific intent to agree and his specific intent that the criminal acts be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop a chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain.” (Internal quotation marks omitted.) Id.

Having reviewed the evidence, we conclude that ample evidence existed from which the jury could have found beyond a reasonable doubt (1) that the defendant intended to commit the crime of burglary in the second degree, which was the object of the conspiracy, and (2) that the defendant and Daniels had agreed to conspire to achieve that illegal end.

The evidence demonstrated that the defendant and Daniels knew Pouliet and knew that he stored bottles of liquor in one of his rented rooms. The evidence demonstrated that the defendant and Daniels were drinking during the day on September 18, 2000, and, by nightfall, had consumed all of their own liquor. Daniels testified that Pouliet had informed her that he would be away from his apartment and on vacation until, possibly, September 19, 2000. By around 10:30 p.m. on September 18, 2000, the defendant and Daniels had traveled from the Long Wharf area of New Haven, where they had been drinking during the day, to the area of the New Haven Green, to Pouliet’s apartment.

At that time, Joshua Picard and an acquaintance were walking on the opposite side of the street from Pouliet’s apartment building. Picard testified that he observed the defendant repeatedly kick at the front door, then look up and down the street before resuming the attempt to gain entry forcibly to the dwelling. As the defendant did so, Daniels stood behind a pole, near the front entrance of the building and kept a lookout, as well. Picard also testified that he observed the defendant and Daniels enter the dwelling after the defendant had kicked the door off of its hinges.

The evidence further demonstrated that Picard immediately reported the incident to New Haven police Officers Brian Pizsak and Paul Bicki, who were patrolling the area. Pizsak and Bicki found evidence of forced entry to the dwelling consistent with Picard’s observations. Officers Danielle Rodriguez and Jon Haddad arrived shortly thereafter. At trial, Bicki testified that he and other officers entered the building and that one of the officers shouted for any intruders to “come out.” Bicki testified that shortly thereafter, he discovered the defendant, in an intoxicated state, walking from the area of Pouliet’s storage room in the hallway on the second floor, where officers apprehended him. Haddad found a full bottle of vodka in the defendant’s pocket, and other officers found Daniels nearby in the storage room where Pouliet kept his liquor.

We conclude that the evidence provided ample support for the jury’s finding that the defendant intended to enter or to remain in Pouliet’s apartment building to commit the crime of larceny therein. Further, the state produced ample circumstantial evidence that the defendant had agreed with Daniels to engage in or to cause conduct in furtherance of that crime. The evidence demonstrated that the defendant had kicked the door open while Daniels kept a lookout. Upon gaining illegal entry into the building, the two conspirators proceeded to either deprive Pouliet of all or some of his liquor or to appropriate the use of such property to themselves. The cumulative effect of the actions of the defendant and Daniels, actions that certainly reflect a common scheme, provided circumstantial evidence from which the jury reasonably could infer that a conspiracy existed and that the defendant possessed the requisite mental state for the commission of larceny.

The defendant’s portrayal of the events on the night of the incident contradicts the findings made by the jury. We reiterate that our task in reviewing the jury’s findings is to “construe the evidence in the light most favorable to sustaining the verdict.” (Internal quotation marks omitted.) State v. Morgan, supra, 70 Conn. App. 282. In the present case, the evidence adduced at trial and the reasonable inferences to be drawn therefrom supported the jury’s findings and verdict.

II

The defendant next claims that the evidence did not support his conviction for burglary in the third degree in violation of § 53a-103 (a). We disagree.

To convict the defendant for the crime of burglary in the third degree, the state must prove (1) that the defendant entered or remained unlawfully in a building and (2) that he did so with the intent to commit a crime therein. In the present case, the state charged that the defendant had entered Pouliet’s apartment building with the intent to commit larceny.

The defendant argues on appeal that the evidence did not support the jury’s finding that he possessed the specific intent necessary for that crime, namely, the intent to commit a crime in the building. In support of his claim, the defendant again draws our attention to Daniels’ testimony that she had a lawful reason to be in Pouliet’s building on the evening of September 18, 2000. The defendant asserts that the evidence showed him to have been “merely accompanying” Daniels to the building while she obtained her keys therein. He further argues that he had no intention of committing any crime on that night and that the evidence could not support a finding to the contrary.

We review the evidence adduced at trial, in the light most favorable to sustaining the jury’s verdict, to determine whether, on the facts so construed and the inferences reasonably drawn therefrom, the jury could have concluded that the state proved the necessary element of intent beyond a reasonable doubt. As stated in part I, the jury had before it testimony concerning the defendant’s conduct prior to and during the incident. That evidence demonstrated that as Daniels stood by and kept a lookout, the defendant kicked open the front door of Pouliet’s apartment building. While he did so, he intermittently looked around to check if any passersby were observing him. The defendant did not have permission either to enter the building or to avail himself of Pouliet’s belongings therein. Once he kicked the door open, the defendant and Daniels entered the building, forcibly gained entry through an interior door to the second floor and proceeded to Pouliet’s storage room, wherein a stash of vodka was stored. When police officers arrived, they found the defendant with a full bottle of vodka in his pocket.

The jury was free to draw from that evidence of the defendant’s conduct reasonable inferences concerning his intent. Construing that evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found beyond a reasonable doubt that the defendant had the requisite intent to commit burglary in the third degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state originally charged the defendant with two counts of burglary in the third degree. The jury convicted the defendant on one of those counts, which is a subject of this appeal. As to the other count, the jury found the defendant guilty of the lesser included offense of criminal trespass in the second degree in violation of General Statutes § 53a-108. On appeal, the defendant does not challenge his conviction as to that lesser included offense.
      The record further reflects that the jury convicted the defendant of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-103 (a), as the state charged in its substitute information. At the defendant’s sentencing, the court rendered a judgment of acquittal as to that count.

       In their briefs, the parties refer to Daniels interchangeably as Rose Wilson or Rose Daniels-Wilson. Daniels testified at trial that she wanted to be addressed as Daniels, and we will do so throughout this opinion.

       During direct examination, Pouliet testified that he did not give either the defendant or Daniels permission to enter his apartment while he was away. During cross-examination, however, Pouliet testified that he had asked Daniels to look after his apartment while he was away, but that he had forgotten to give her the keys with which to gain entry to the apartment. Because we are bound to evaluate that conflicting testimony in the light most favorable to sustaining the verdict, we assume that the jury discredited Pouliet’s latter version of events. The jury “is entitled to credit some portions of the testimony of a witness and to discredit other portions.” State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989), cert. denied, 213 Conn. 812, 568 A.2d 796 (1990).

       We note that the defendant sought a judgment of acquittal at the close of the state’s case-in-chief; see Practice Book § 42-40; (hereby preserving the issues he raises on appeal for our review. The defendant argues on appeal that the court improperly denied his motion. Because we conclude that the evidence was sufficient to sustain the conviction, we likewise conclude that the court properly denied the defendant’s motion.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”