author: SHEA, J.

text:
    STATE OF CONNECTICUT v. ANTHONY L. JOHNSON
    (14587)
    Foü, Schaller and Shea, Js.

      Argued October 2, 1996
    officially released January 21, 1997

      Dara K. Storch, certified legal intern, with whom were Richard Emanuel, assistant public defender, and, on the brief, Kyun Yi, certified legal intern, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Steven Weiss, assistant state’s attorney, for the appellee (state).
   SHEA, J.

After a jury trial, the defendant was convicted of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and larceny in the sixth degree in violation of General Statutes § 53a-125b. The jury found him not guilty of robbery in the first degree, as charged in the first count of the substitute information. In his appeal from the judgment, the defendant claims that his right to a fair trial was violated (1) by remarks of the prosecutor during closing argument, (2) by the trial court’s instructions on circumstantial evidence, and (3) by the selection of two of the six jurors while the original trial judge was absent and a different judge was presiding over the voir dire. We affirm the judgment.

From the evidence presented, the jury could reasonably have found that on September 13,1994, at approximately 7:15 a.m., the defendant entered a supermarket in Stamford using a cane because of a cast on his foot. He attracted the attention of Carl Anderson, a store security officer, who continued to observe the defendant as he picked up several packages of film. Anderson saw the defendant stop in one of the aisles and put film in several pockets of his clothing. The defendant then went to 1he delicatessen counter and ordered a sandwich. The clerk handed him the sandwich wrapped in paper. Anderson observed the defendant stuff the sandwich into his pants and go to the other end of the store, where he talked with some store employees. Anderson went to the front of the store and waited for the defendant.

When the defendant came to the front of the store, he walked past the cashiers and proceeded toward the exit door. At that point, Anderson and Peter Pearce, the store manager, who had seen the defendant walk past the cashiers, approached the defendant. Anderson told the defendant that he had been watched and asked whether he had forgotten to pay for something. The defendant responded affirmatively. He removed a package of film from one of his pockets and said that he wanted to pay for it. When Anderson said he believed that the defendant had additional rolls of film, the defendant produced several other film packages. After Anderson mentioned the sandwich, the defendant removed a wrapped sandwich from inside his pants.

Anderson and Pearce informed the defendant that they would have to call the police. The defendant asked them not to call the police and offered to pay for the merchandise. Pearce replied that it was too late and told the defendant to come with him and Anderson to the rear of the store. After the defendant had responded by pushing them aside in an attempt to move toward the exit, Anderson and Pearce each took hold of one of his arms and escorted him down a grocery aisle to the rear of the store. The defendant began to curse and, halfway down the aisle, he freed his right arm and swung his cane at Pearce, striking him three times between the eyes. Anderson and Pearce wrestled the defendant to the floor. After he seemed to calm down, they helped him to stand up and pulled him into a back room to await the police.

In the room, the defendant said he would not create any more trouble, but, when his arms were released, he turned and punched Anderson in the nose, causing it to bleed. Pearce and Anderson again forced the defendant to the floor and sat on him to await the arrival of the police, whom another store employee had called.

Pearce sustained a hairline fracture of his nose and two black eyes. When the police arrived, they handcuffed the defendant and took him to the police station.

I

PROSECUTOR’S ARGUMENT

The defendant claims that the prosecutor, during his summation to the jury, violated the defendant’s constitutional right to a fair trial by referring to facts on which evidence had been excluded by the trial court and also by making remarks that infringed upon his fifth amendment right not to testify at trial.

A

During the cross-examination of Anderson, defense counsel inquired whether his employer, in the course of training him as a security officer, had informed him of the ramifications of a false arrest and the responsibility the store would bear for injury to a person claimed to have been shoplifting. Anderson responded affirmatively. After similar testimony was elicited from Pearce during cross-examination, the state on redirect examination, referring to defense counsel’s questions concerning false arrest, inquired whether the defendant had ever made any claim of false arrest in connection with the incident at the Stamford store. Pearce responded, “None whatsoever.” Defense counsel objected that the question called for speculation. The court sustained the objection on the ground of irrelevance and ordered the answer stricken.

During his summation for the state, the prosecutor referred to the questions asked of Anderson and Pearce concerning false arrest: “Well, the defendant never claimed any false arrest when the police were at the scene and they never claimed any false [arrest] through any of the witnesses. You didn’t hear it.” Later, in support of the credibility of the state’s witnesses, he argued: “[Y]ou remember that they testified under oath and there is no evidence that they have any beef with the defendant. There is no evidence that there was any law suit.” (Emphasis added.) After the defendant had presented his argument and the state had concluded its rebuttal, the defendant, in the absence of the jury, objected to the state’s references to false arrest and to a civil suit therefor on the ground that the court had sustained an objection to the state’s inquiry about such an action. The court remarked that it was the defendant who had opened the door by his questions to Anderson and Pearce about the training they had received from their employer regarding false arrest and ruled that the prosecutor’s argument was proper.

On appeal, the defendant relies on the well established principle that it is improper for counsel to refer to facts that are not supported by the evidence. State v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987); States v. Ubaldi, 190 Conn. 559, 575, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). The remark of the prosecutor that “[tjhere is no evidence that there was any law suit,” however, does not violate that principle but, in the context of the preceding statement that “there is no evidence that [Anderson and Pearce] have any beef with the defendant,” simply pointed out one circumstance arguably reinforcing the credibility of his witnesses. There is no prohibition against relevant argument based on the absence of evidence in a case that an opposing party would ordinarily be expected to produce if it existed. Matza v. Matza, 226 Conn. 166, 186, 627 A.2d 414 (1993); Tragakiss v. Dowling, 183 Conn. 72, 74, 438 A.2d 818 (1981). Even if there had been no prior reference to a civil suit for false arrest, the remark that a witness had no reason, such as an interest in a lawsuit, to color his testimony would not have been improper.

The defendant also claims that the statement regarding the absence of evidence of a suit for false arrest was a deliberate defiance of the trial court’s ruling striking the defendant’s response to the prosecutor’s inquiry concerning such an action. In State v. Ubaldi, supra, 190 Conn. 569-70, our Supreme Court exercised its supervisory power to grant a new trial where the prosecutor’s summation referred to evidence that the trial court had excluded. “Where a prosecutor . . . interjects remarks deliberately intended to undermine the rulings of the trial court to the prejudice of the defendant, his conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” Id., 575. The ruling of the trial judge that the prosecutor’s comment was “proper argument” indicates that he did not regard it as offensive. We also do not view the challenged remark of the prosecutor in this case as a deliberate flaunting of the trial court’s ruling on evidence, but as an appropriate comment on the absence of a circumstance that, if it had been present, would have militated against the credibility of the state’s witnesses by indicating some interest on their part in the outcome of the trial.

B

The defendant claims that portions of the prosecutor’s summation also constituted an impermissible comment on the defendant’s failure to testify at trial in violation of his fifth amendment privilege against self-incrimination as decided in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). The defendant did not raise this claim either in the trial court or in his original brief in this court. At oral argument, however, we granted his motion for permission to raise the self-incrimination issue in a supplementary brief because, despite the failure to raise it previously, it qualifies for appellate review under the strictures of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The state does not dispute that “the claim is of constitutional magnitude alleging the violation of a fundamental [constitutional] right” and that “the record is adequate to review the alleged claim of error.” Id., 239. Appellate review of similar belated claims of prosecutorial comment on a criminal defendant’s failure to testify has frequently been granted. State v. Marra, 222 Conn. 506, 533, 610 A.2d 1113 (1992); State v. Walker, 206 Conn. 300, 306-307, 537 A.2d 1021 (1988); State v. Magnotti, 198 Conn. 209, 215, 502 A.2d 404 (1985); State v. Evans, 165 Conn. 61, 70-71, 327 A.2d 576 (1973).

The standard of review of a prosecutorial remark claimed to violate the prohibition against commenting on a defendant’s failure to testify is whether the language used was “manifestly intended to be” or “was ... of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” State v. Evans, supra, 165 Conn. 72. In support of his claim, the defendant cites three excerpts from the state’s argument: (1) “[T]he defendant never claimed any false arrest when the police were at the scene and they never claimed any false [arrest] through any of the witnesses. You didn’t hear it.” (2) “Now, the defendant did make comments to the police. And we heard that. He did not sit on his rights and refuse to answer questions and keep his mouth shut, and be silent. He had a lot to say. What is significant is he never said anything . . . you know, they set me up. I was beaten up. I’m the victim and they’re trying to cover up a beating that they gave me. He said a lot of things, but he never said any of those things.” (3) “There is no evidence that there was any law suit.”

There is no reasonable basis in the first statement for concluding that the jury “would naturally and necessarily” take it to refer to the defendant’s failure to testify at trial. The phrase, “when the police were at the scene, ” refers explicitly to the defendant’s conduct at the time of his arrest, not at the trial. The mention of the failure to claim false arrest “through any of the witnesses” plainly does not refer to the defendant at all but to the testimony of the witnesses produced by the state and cross-examined by the defendant.

The second statement of the prosecutor, which refers to what the defendant told and did not tell the police, is also clearly confined to the defendant’s conduct at the time of his arrest. We perceive nothing in that argument implicating the defendant’s failure to testify at trial.

The defendant claims that, in the third statement, concerning the absence of any evidence of a false arrest suit, the prosecutor indirectly commented on the defendant’s failure to testify because he was calling for information that only the defendant could have provided. See State v. Correia, 33 Conn. App. 457, 468, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994). The defendant would not have had to take the witness stand, however, in order to prove that he had commenced a lawsuit. Any number of people, such as the clerk of court or other court personnel, could have established that fact.

We conclude that the defendant’s claim of prosecutorial comment on his failure to testify is wholly lacking in merit.

II

JURY INSTRUCTIONS

The defendant claims next that the court’s instructions to the juiy relating to circumstantial evidence were inadequate because there was no specific instruction applying the reasonable doubt standard of proof to such evidence and the inferences to be drawn therefrom. He refers to the following portions of the charge on circumstantial evidence: “Circumstantial evidence is indirect evidence, that is, proof of a chain of facts from which you could find that another fact exists even though it has not been proved directly. . . . Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in light of reason, experience, and common sense. . . . What a person’s intention or knowledge has been is usually to be determined by inference. . . . The only way a jury can ordinarily determine what a person’s intention or knowledge was at any given time, aside from that person’s statements or testimony, is by determining what that person’s conduct was and what circumstances were surrounding that conduct and from that infer what his purpose, intention or knowledge was. ... To draw such an inference is not only the privilege but also the proper function of the jury, provided, of course, that the inference drawn complies with the standard for inferences as explained earlier by me.” The defendant contends that he is entitled to a new trial because of the absence from the charge on inferences and intent of any reference to the state’s burden of proving guilt beyond a reasonable doubt. He also maintains that the court should have instructed the jury that an inferred fact, such as intent, must be proved beyond a reasonable doubt.

A

The defendant took no exception to any part of the charge and, in order to prevail on this unpreserved claim, must demonstrate the existence of the four conditions set forth in State v. Golding, supra, 213 Conn. 239-40: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental [constitutional] right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

The state focuses on the third Golding condition, arguing that no constitutional violation clearly exists that deprived the defendant of a fair trial. We agree. In explaining the state’s burden of proof, the court charged that it “must prove beyond a reasonable doubt, each and every element of the crime charged.” With respect to the larceny count, the jurors were told that one of the elements of that crime that “must be proved beyond a reasonable doubt [was] . . . that, at the time the defendant obtained such property, he intended to deprive the owner of his property.” In concluding the discussion of this element, the court instructed that “the state must prove beyond a reasonable doubt the defendant took the property for the purpose of keeping or using it permanently.”

The charge on the count of assault in the second degree also included specific references to the necessity for proof beyond a reasonable doubt of the mental element of that crime, the intent to cause physical injury: “The intent needed to satisfy this particular subsection of the statute requires the intent to cause physical injury. Physical injury means any impairment of physical condition or any pain. If you find that the state has proved beyond a reasonable doubt the elements of this offense, you will find the defendant guilty of assault in the second degree.”

B

In claiming that “inferred facts” in a criminal case must be proved beyond a reasonable doubt and that the jurors should have been so instructed, the defendant has created an ambiguity by failing to define that term, which literally would include all the inferences of fact drawn during the course of a trial regardless of their significance. The term may also refer only to those inferences that constitute proof of the elements of the crime charged. “Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt.” State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Inferences of subordinate facts relied on cumulatively for proof of an element of a crime ordinarily need not be proved by any standard other than common sense. When a particular fact is essential to establish such an element, however, that fact must be proved in accordance with the reasonable doubt standard.

In the context in which the defendant has used the term “inferred facts” in his brief, we understand it to refer to those facts relating to the element of intent required for each of the crimes of which he was found guilty, larceny and assault in the second degree. We have previously recited the portions of the charge in which the trial court defined the essential mental element for each of those crimes and unequivocally instructed the jurors that their determination of those elements was to be guided by the standard of reasonable doubt. We conclude, therefore, that there is no substance to the defendant’s claim that the jury instructions failed to inform the jurors that the state bore the burden of proving the facts essential to establish each element of the crimes beyond a reasonable doubt. Thus, the defendant has not demonstrated that the “alleged constitutional violation clearly exists and clearly deprived [him] of a fair trial,” as required by Golding for an appellant to prevail on an unpreserved claim. State v. Golding, supra, 213 Conn. 239-40.

III

SELECTION OF JURORS

The defendant’s final ground for seeking a new trial is that, during the process of jury selection, the trial judge was absent from the voir dire and another judge was substituted for him during the morning of the second day of voir dire examination. The defendant claims that (1) this deviation from the usual procedure, with the same judge presiding throughout the voir dire as well as the remainder of the trial, violated the strictures for jury selection established by our Supreme Court in State v. Patterson, 230 Conn. 385, 645 A.2d 535 (1994), on appeal after remand, 236 Conn. 561, 674 A.2d 1290 (1996), and (2) the substitution was contrary to approved practice and violated his right to a fair trial.

A

In Patterson, our Supreme Court condemned the practice, which had become widespread, of allowing counsel to conduct the voir dire for jury selection, in criminal as well as civil cases, without judicial supervision. Although no party had objected to that procedure, the court overruled it prospectively and established a requirement for the continued presence of a judge during jury selection: “The presence of the trial judge from the beginning of voir dire impresses upon the jury the gravity of the proceedings. The uninterrupted supervision of the proceedings by the judicial authority, mindful of everything that transpires in the courtroom, is an important part of the appearance that justice is being done in a criminal case. . . . [W]e now decide under our supervisory power that henceforth the trial judge must continuously be present to oversee voir dire in a criminal case. Because this requirement is imposed by this court pursuant to its supervisory powers, the requirement cannot be waived by either party in future criminal cases.” (Citations omitted; emphasis added.) Id., 398-400.

The Patterson decision was released on July 26,1994, and, therefore, applies to this case in which jury selection began on December 20, 1994, with Judge Karazin presiding. After several jurors had been chosen, the judge informed counsel that he had to attend a meeting in Hartford the next morning, but would return for the afternoon session of the court. Later, the judge advised that arrangements had been made for Judge Dean to preside over the voir dire session on the following morning. Both the state and the defendant consented to the substitution. By the end of the first day of jury selection, six jurors had been chosen. Judge Karazin stated that Judge Dean would preside the next morning over the selection of two alternate jurors.

The next day, two alternates were selected during the morning session over which Judge Dean presided. Judge Karazin returned for the afternoon session and gave some preliminary instructions about trial procedure and properjuror conduct during a trial. All of the testimony was presented during the afternoon session before the six jurors and the two alternates.

The next morning, counsel for the defendant moved for a mistrial on the ground that two jurors had seen the defendant being brought into the courthouse wearing handcuffs. After questioning the jurors involved, the court excused them and substituted the two alternate jurors chosen while Judge Dean was conducting the voir dire. The verdict was rendered by a jury composed of four jurors selected while Judge Karazin presided and two others selected during Judge Dean’s substitution.

The defendant contends that Patterson requires the continuous presence of the same judge throughout the jury selection process. He finds some support for that position in the predominant use of the definite article “the” rather than the indefinite “a” as the modifier of “trial judge” throughout the Patterson opinion. In addition, the opinion refers to “[t]he uninterrupted supervision of the proceedings by the judicial authority”; id., 398; “the judge who is continuously present at a criminal voir dire”; id., 399; and “the greater likelihood of accuracy in fact-finding resulting from a judge’s continuous presence . . . .” Id., 400. There are also, however, several indefinite references: “right to judicial supervision”; id., 393; “presence of a judge”; id.; “continuous judicial supervision”; id., 397; “judicial authority”; id., 398; and “a judge’s continuous presence . . . .” Id., 400.

The Patterson opinion cites several considerations involving jury trials of criminal cases as the reasons for abolishing the practice of permitting counsel to conduct the voir dire examination of prospective jurors in the absence of a judge: (1) “The presence of the trial judge from the beginning of voir dire impresses upon the jury the gravity of the proceedings. The uninterrupted supervision of the proceedings by the judicial authority, mindful of everything that transpires in the courtroom, is an important part of the appearance that justice is being done in a criminal case.” Id., 398. (2) “Further, the judge ought to protect the legitimate privacy interests of prospective jurors.” Id., 399. (3) “The judge is charged with ruling on challenges based on the purposefully discriminatory use of peremptory challenges. Batson v. Kentucky, [476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)] .... [Firsthand observations ordinarily are a more reliable way to make the factual determinations required of the trial judge during criminal voir dire, particularly those sensitive determinations implicated in a Raison-type challenge.” State v. Patterson, supra, 230 Conn. 398-99. Of these considerations, we do not perceive how the first, impressing the jurors with the seriousness of a criminal trial, and the second, protecting their privacy from improper probing by unfettered counsel, would be thwarted in any significant measure by a substitution of one judge for another during the voir dire. The third consideration, the advantage of firsthand observations in deciding factual issues during voir dire, as when a Batson challenge arises, however, cannot be gainsaid.

In this case, however, no Batson challenge arose at any time and, during the selection of the two alternate jurors, neither counsel for the state nor for the defendant objected to any of the questions to prospective jurors. Judge Dean had no occasion to make any rulings while he presided over that portion of the voir dire. The defendant, therefore, cannot show that he was adversely affected in any manner by the substitution to which he had consented. We conclude, therefore, that this case is distinguishable from Patterson, which dealt solely with the conduct of jury voir dire examination without any judicial authority in the courtroom.

B

The propriety of substituting a different judge for the judge who presided at the start of a legal proceeding depends greatly on the nature of the proceeding and the likely impact on a criminal defendant’s right to a fair trial. In the early case of Freeman v. United States, 227 F. 732, 759-60 (2d Cir. 1915), in which such a substitution, to which the defendant consented, occurred after the prosecution had presented all of its evidence, the court declared that “[t]he continuous presence of the same judge and jury is equally essential throughout the whole of the trial.” The holding in Patton v. United States, 281 U.S. 276, 293-98, 50 S. Ct. 253, 74 L. Ed. 854 (1930), that a defendant may waive his right to have the same jurors present throughout his trial by consenting to a verdict rendered by fewer than twelve jurors, however, has undermined the rationale of the Freeman decision. United States v. LaSorsa, 480 F.2d 522, 531 (2d Cir. 1973). In the absence of a procedural rule or statute permitting such midtrial substitutions, the general rule remains “that a judge may not be substituted to preside over the remainder of a trial after evidence has been adduced before the original judge.” 46 Am. Jur. 2d, Judges § 249 (1994). “[T]he rule against substitution is designed to insure that the judge who hears the testimony as to the facts also applies the law thereto.” Annot., 83 A.L.R.2d 1032, 1034 (1962). The current rule, however, recognizes that the defendant may waive any objection to such a substitution by consenting or by failing to obj ect thereto .Id. When a seasonable objection is raised, some courts hold that a substitution, even after evidence has been presented, is subject to harmless error analysis. McIntyre v. State, 266 Ga. 7, 463 S.E.2d 476 (1995); Hood v. State, 334 Md. 52, 62, 637 A.2d 1208 (1994).

The rale against substitution of judges after testimony has commenced is not applicable to jury selection proceedings unless there is a showing of prejudice. “[T]he great weight of authority favors the rale that substitution of a judge before opening argument or the admission of evidence is not an automatic ground for reversal.” 46 Am. Jur. 2d, Judges § 249 (1994). “The examination of jurors under voir dire does not elicit any information that can be used in the trial of the case; [rather] such examination is merely for the purpose of securing a competent, fair, and unprejudiced jury. That function can properly be performed by any judge.” Commonwealth v. Thompson, 328 Pa. 27, 29, 195 A. 115 (1937). Most of the cases take the view that, after voir dire, the substitution of a different judge for the remainder of the trial, absent a showing of prejudice, is not a basis for reversal of a criminal conviction. Jones v. State, 57 Ala. App. 275, 327 So. 2d 913, cert. denied, 295 Ala. 409, 327 So. 2d 915 (1975); State v. Wallen, 114 Ariz. 355, 360, 560 P.2d 1262 (App. 1977); People v. Rodriguez, 786 P.2d 472 (Colo. App. 1989); People v. McCline, 442 Mich. 127, 499 N.W.2d 341 (1993). Some courts have frowned on the practice of substitution at any stage of a trial, but, nevertheless, have affirmed the convictions when the new judge entered the case before the evidentiary phase of the trial began. State v. Amarillas, 141 Ariz. 620, 622, 688 P.2d 628 (1984) (“not the best practice”); State v. Wallen, supra, 360 (“[not] a good practice”).

The defendant focuses on substitutions occurring during jury selection, as in the present case, thus distinguishing some of the precedent. None of the cases we have found involving that situation has attributed any special significance to it and they support the general rale that substitutions prior to the introduction of evidence are not a basis for reversal. State v. Amarillas, supra, 141 Ariz. 620; People v. Rodriguez, supra, 786 P.2d 472; Commonwealth v. Thompson, supra, 328 Pa. 27. We agree with the defendant that the advent of Batson challenges raises new concerns about the need for the same judge during the jury selection proceeding. In this case, however, no such problem arose. The defendant consented to the substitution, and there has been no showing of prejudice resulting therefrom. We conclude that the substitution of judges that occurred in this case is no basis for reversal of the defendant’s conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or 1 o a third person by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm . . .

         General Statutes § 53a-125b provides: “(a) A person is guilty of larceny in the sixth degree when he commits larceny as defined in section 53a-119 and the value of the property or service' is two hundred fifty dollars or less. “(b) Larceny in the sixth degree is a class C misdemeanor.”

       The state claims that any infirmity in the voir dire proceedings is unreviewable because the defendant consented to the substitution of judges that occurred and the issues raised on appeal do not qualify for review pursuant to State v. Golding, supra, 213 Conn. 233. We disagree. In State v. Patterson, supra, 230 Conn. 400, our Supreme Court stated explicitly that the requirement for the presence of a judicial authority during voir dire could not be waived by the parties.

       In Patterson, the court did not decide whether the practice of selecting the jury without judicial supervision in civil cases would be discontinued. State v. Patterson, supra, 230 Conn. 397 n.12.

       Rule 25 of the Federal Rules of Criminal Procedure, adopted in 1966, permits the substitution of a judge after commencement of a jury trial if the original judge becomes unable to proceed with the trial “by reason of death, sickness, or other disability.” The substitute judge is required to familiarize himself with the prior proceedings. The rule was upheld against constitutional attack in United States v. LaSorsa, supra, 480 F.2d 530-31.

       General Statutes § 51-183 provides: “Any judge of the Superior Court, may hold any term or session or part of any term or session of court to which another judge has been assigned, when the latter is unable to hold or complete it: and any judge may try any action when the judge holding court is disqualified or declines to try it.” The state argues that the first sentence of the statute would authorize the substitution that occurred in this case. Such an expansive interpretation of the first sentence, however, would render the second sentence superfluous. We agree with the defendant that the second sentence, which relates expressly to the trial of “any action” rather than to holding “any term or session or part of any term or session of court,” is a far more precise reference to the substitution of a judge in a particular case, bul it does not authorize a substitution once a trial has begun.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STEPHANIE TOISE v. AUDREY ROWE, COMMISSIONER OF SOCIAL SERVICES, ET AL. DAVID DRESSLER v. AUDREY ROWE, COMMISSIONER OF SOCIAL SERVICES, ET AL.
    (15090)
    (15362)
    Foli, Landau and Stoughton, Js.
    Argued November 5, 1996
    officially released January 21, 1997

      Maria A. Kahn, for the appellants (plaintiffs).

      Nyle K. Davey, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   FOTI, J.

The plaintiffs, Stephanie Toise and David Dressier, appeal from the judgments of the trial court dismissing their appeals from the decisions of the bureau of rehabilitation services (bureau). On appeal, the plaintiffs claim that the trial court improperly dismissed the administrative appeals for lack of subject matter jurisdiction. We affirm the judgments of the trial court.

The following facts are relevant for this appeal. The plaintiffs have severe learning disabilities. They both qualified for assistance from the bureau. Although their individual requests to the bureau were not related or similar initially, the plaintiffs both appealed to the Superior Court from bureau decisions and their appeals were dismissed for lack of subject matter jurisdiction. The plaintiffs’ appeals to this court, therefore, raise the same issue. On the parties’ motion, we consolidated the two appeals on January 25, 1996.

The plaintiff Toise completed two semesters of graduate study in public health at Yale University. She applied for services with the bureau, requesting specific vocational rehabilitation services: a computer, job placement services and tutoring. She later requested that the bureau pay the tuition and the maintenance cost of the Yale University graduate program. The bureau denied her request. Toise requested a hearing to appeal the denial of her request for financial support for her final year of graduate school. The bureau held a hearing and a hearing officer issued a decision on October 4, 1993. The hearing officer reversed the bureau’s decision as to tuition assistance and ordered the bureau to pay for one semester of a comparable program at the University of Connecticut. The bureau’s director reviewed the hearing officer’s decision. On February 4, 1994, the director reversed the hearing officer’s decision. The plaintiff sought review by the Superior Court. On August 2, 1995, the trial court, Norko, J., rendered judgment dismissing the appeal on the ground that it lacked subject matter jurisdiction to entertain the appeal.

The plaintiff Dressier applied for services from the bureau in June, 1992. Dressier and his mother had explored various postsecondaiy academic vocational training opt ions. They were particularly interested in a vocational program on a college campus such as those offered by Lesley College and the University of Alabama. The bureau, however, recommended programs from Chapel Haven, Vista, Futures and an unspecified program in the Norwalk area. The bureau informed Dressier of its policy not to fund out-of-state on campus vocational training programs. Dressier requested a hearing to appeal the denial of his request for support to attend the out-of-state program. On May 14, 1994, the hearing officer issued the decision that the bureau had met its obligations to Dressier. The director of the bureau reviewed the hearing officer’s decision. On June 25, 1994, the director adopted, with modifications, the decision of the hearing officer. Dressier sought review by the Superior Court. On October 16, 1995, the trial court, Maloney, J., rendered judgment dismissing the appeal on the ground that it did not have subject matter jurisdiction to entertain the appeal.

“Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). If the legislature has not created statutory authority for an appeal from an administrative agency, the Superior Court does not have jurisdiction to hear the appeal. Killingly v. Connecticut Siting Council, 220 Conn. 516, 522, 600 A.2d 752 (1991).

The trial court dismissed the two administrative appeals on the ground that it lacked subject matter jurisdiction because it determined that the plaintiffs did not have a right to appeal the decisions of the bureau and its director. The plaintiffs argue that they had the right to appeal the decisions of the bureau pursuant to state statute, federal statute and public policy.

“There is no absolute right of appeal to the courts from a decision of an administrative agency.” Lewis v. Gaming Policy Board, 224 Conn. 693, 699, 620 A.2d 780 (1993). “Judicial review of an administrative decision is governed by General Statutes § 4-183 (a) of the [Uniform Administrative Procedure Act], which provides that [a] person who has exhausted all administrative remedies . . . and who is aggrieved by a final decision may appeal to the superior court .... A final decision is defined in [General Statutes] § 4-166 (3) (A) as the agency determination in a contested case .... A contested case is defined in [General Statutes] § 4-166 (2) as a proceeding ... in which the legal rights, duties or privileges of a party are required by statute to be determined by an agency after an opportunity for hearing or in which a hearing is in fact held . . . (Emphasis in original; internal quotation marks omitted.) Id., 700.

Disposition of the issue on appeal, therefore, hinges on the language “required by statute” in the definition of a contested case found in § 4-166 (2). A party “does not have a right to appeal unless the [agency] was statutorily required to determine the [party’s] legal right or privilege . . . in a hearing or after an opportunity for a hearing.” (Emphasis in original.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 802, 629 A.2d 367 (1993).

We first examine whether state statutes provide the plaintiffs with a right to appeal. The bureau acts pursuant to General Statutes (Rev. to 1993) § 17-660 et seq. and state agency regulations. The regulations specifically set out bureau procedure. An agency regulation, however, is not sufficient to qualify a proceeding for contested case status pursuant to § 4-166 (2). Lewis v. Gaming Policy Board, supra, 224 Conn. 703 n.8.

Pursuant to General Statutes (Rev. to 1993) § 17-664 (now § 17b-654), “[a]ny applicant for or recipient of vocational rehabilitation services who is aggrieved by a decision regarding eligibility for services, pursuant to section 17b-653, shall be entitled to an administrative review by making written request to the department of social services.” Section § 10-102-2 (b) (2) of the Regulations of Connecticut State Agencies provides: “ ‘Administrative Review’ means an informal procedure through which the [bureau] affords an opportunity to a client or applicant for rehabilitation service ... to express and seek remedy for dissatisfaction with [bureau] action or inaction in the provision or denial of such services. Administrative Review is not a ‘contested case’ within the meaning of Section 4-166 (2) of the Connecticut General Statutes.” The plaintiffs, therefore, are not entitled to appeal pursuant to statutes governing the bureau.

The plaintiffs further contend that it is standard bureau procedure to offer a hearing to an aggrieved party. “If a hearing is not statutorily mandated, however, even if one is gratuitously held, a ‘contested case’ is not created.” Dadiskos v. Connecticut Real Estate Commission, 37 Conn. App. 777, 782, 657 A.2d 717 (1995).

The plaintiffs argue that the statutory right of appeal from a decision by the commissioner of social services also applies to the decisions by the bureau and its director. The department of social services is statutorily required to hold a fair hearing upon proper request by a person who is aggrieved by a decision of the commissioner of social services. The plaintiffs contend that the director of the bureau is a designee of the commissioner of social services, that the bureau represents itself as an unit of the department of social services, and that, therefore, the statutes providing a right to appeal from a decision of the commissioner of social services should also provide them with a right to appeal from a decision by the bureau.

The plaintiffs cite General Statutes (Rev. to 1993) §§ 17-2a and 17-2b and the statutes that govern its predecessor agency, the department of human resources, General Statutes §§ 17-603 and 17-604, as providing the right for a party aggrieved by a decision of the commissioner to request a hearing. Pursuant to these statutory requirements, the commissioner must hold a hearing upon request and, therefore, a decision constitutes a final decision pursuant to § 4-166 (3) (A).

The trial court found that decision-making power is vested in the director of the bureau. The bureau director is the head of the designated state unit. See General Statutes (Rev. to 1993) § 17-661. The commissioner of social services is not involved in decisions of the bureau. The statutory provisions permit an appeal specifically from a decision by the commissioner of social services. See General Statutes (Rev. to 1993) §§ 17-2a and 17-2b. Furthermore, the legislature has provided a right to appeal the actions of specific units of the department of social services. See General Statutes (Rev. to 1993) § 17-82f (now § 17b-66) (providing right to appeal from public assistance) and General Statutes (Rev. to 1993) § 17-134e (now § 17b-264) (providing right to appeal from medical assistance). It did not, however, until amending General Statutes § 17b-654 in 1995, provide for a right to appeal from the actions of the bureau. We, therefore, determine that the statutes that provide a right to appeal from the decisions of the department of social services do not grant a right of appeal from the decisions of the bureau or its director.

The plaintiffs also claim that Public Acts 1995, No. 95-355, which provides a right to appeal a bureau decision to the Superior Court, clarified the existing law at the time of its enactment. They cite State v. Magnano, 204 Conn. 259, 528 A.2d 760 (1987), and Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 489 A.2d 363 (1985), to support their argument that a statute that clarifies the law should be applied retroactively.

While we agree that a clarifying act would be retroactively applied, “[i]t is well established that the right to appeal an administrative action is created only by statute and a party must exercise that right in accordance with the statute in order for the court to have jurisdiction.” New England Rehabilitation Hospital of Hartford, Inc. v. Commission on Hospitals & Health Care, 226 Conn. 105, 120, 627 A.2d 1257 (1993). Prior to Public Acts 1995, No. 95-355, there was not a statute authorizing an appeal to the Superior Court from a decision by the bureau. A right to appeal constitutes a substantive change in the law. In re Daniel, 237 Conn. 364, 373-74, 678 A.2d 462 (1996). Public Acts 1995, No. 95-355, therefore, creates a substantive right and will not be retroactively applied.

We next address authority under federal statutes. Our Supreme Court has not addressed the issue of whether a federal statute could confer the right to appeal from an administrative agency. The plaintiffs argue that judicial review exists under federal law. Citing 29 U.S.C. § 722 (d) (1) and 34 C.F.R. § 361.48, they contend that the bureau, as the designated state unit responsible for rehabilitation services under the federal act, is required to provide a hearing for an applicant as a condition of funding. Section 722 (d) (1) 29 U.S.C. provides that “[t]he director of any designated state unit shall establish procedures for the review of determinations made by the rehabilitation counselor or coordinator under this section, upon the request of an individual with a disability.” Subsection (c) of 34 C.F.R. § 361.48 provides in part that “the state plan must assure that procedures are established by the director of the designated state unit so that any applicant for or client of vocational rehabilitation services who is dissatisfied with any determinations made by a rehabilitation counselor or coordinator concerning the furnishing or denial of services may request a timely review of those determinations.” The plaintiffs claim that this review qualifies as a hearing requirement that constitutes a contested case pursuant to § 4-166 (2).

The federal provisions do not create a right of appeal from a decision of the bureau. They create a requirement that the director set out a procedure for administrative review, but do not explicitly provide for judicial review of decisions made by the bureau or its director. Moreover, the threat of revoking funding does not mandate that the state legislature provide a right of review.

The right to appeal administrative agency decisions is created by the legislature. The legislature did not provide a right to appeal a decision by the bureau or its director until it enacted Public Acts 1995, No. 95-355. Prior to the amendment of § 17b-650, there was no hearing required by statute and, therefore, pursuant to § 4-183, no right to appeal the decisions of the bureau or its director. The trial court properly determined that it was without subject matter jurisdiction to hear the plaintiffs’ appeals.

The judgments are affirmed.

In this opinion the other judges concurred.

       The bureau of rehabilitation services is a unit of the state department of social services. The department administers and provides a variety of welfare, employment, housing and human service programs. It is the designated state agency for administration of the state plan for vocational rehabilitation services. See General Statutes § 17b-2; 29 U.S.C. § 721 (a) (1); 34 C.F.R. § 361.5. The bureau operates a statewide vocational rehabilitation program in accordance with General Statutes § 17b-650 et seq. It is the designated state unit for rehabilitation services under both state and federal aulhority. See General Statutes § 17b-651; 29 U.S.C. § 721 (a) (2); 34 C.F.R. § 361.6.

       We do not specifically address the plaintiffs’ public policy argument because we conclude that the right to an appeal from an administrative agency is created only through legislative action. This conclusion makes it unnecessary to delve into public policy.

       General Statutes (Rev. to 1993) § 17-660 et seq. are now codified as § 17b-650 et seq.

       If a client and the bureau cannot agree on a particular service, the parties can seek administrative review. Regs., Conn. State Agencies § 10-102-20. After this review, a client may request that the director of the bureau authorize an administrative hearing. Section § 10-102-21 of the Regulations of Connecticut State Agencies provides that “[a] fair hearing shall be granted after an administrative review which has resulted in a decision adverse to the client or applicant, and upon timely request for a fair hearing by the client or application of the duly authorized representative.” After the hearing officer submits a decision to the director, the director may review the proposed decision pursuant to § 10-102-21 (j) (1) of the regulations. The parties can present additional evidence to the director. Regs., Conn. State Agencies § 10-102-21 (j) (4). The director will then decide the matter. Regs., Conn. State Agencies § 10-102-21 (k). Section 10-102-21 (o) of the regulations provides for a right to appeal pursuant to General Statutes § 4-183.

         The plaintiffs cite portions of the state plan for this proposition. The state plan must be submitted to the federal government by the commissioner and the department of social services in order for the state to participate in the program. See 29 U.S.C. § 721.

       General Statutes §§ 17-2a and 17-2b are now codified as §§ 17b-60 and 17b-61.

       Public Acts 1995, No. 95-355, effective October 1,1995, amended General Statutes § 17b-654 to provide for an appeal therefrom in accordance with § 4-183. General Statutes (Rev. to 1997) § 17b-654 now requires the bureau to hold a hearing. It provides: “(a) Any applicant for or recipient of vocational rehabilitation services may request an informal review of any decision made by the bureau pursuant to section 17b-653. (b) Regardless of whether a person requests an informal review under subsection (a) of this section, any applicant for or recipient of vocational services who is aggrieved by a decision made by the bureau pursuant to section 17b-653 may request an administrative hearing, by making written request to the director of the bureau of rehabilitation services, (c) An individual who is aggrieved by a final agency decision made pursuant to subsection (b) of this section may appeal therefrom in accordance with section 4-183.” (Emphasis added.)

       In Summit Hydropower Partnership v. Commissioner of Environmental Protection, supra, 226 Conn. 803 n.14, our Supreme Court stated: “Although not addressed by the parties to this case, it is far from clear whether the ‘required by statute’ language in General Statutes (Rev. to 1987) § 4-166 (2) does in fact refer to federal statutory law. Because the parties assume that reference should be made to both state and federal law in order to assess whether the commissioner was required by statute to determine the plaintiffs request for § 401 certification, we assume, strictly for the purposes of this appeal, that the ‘required by statute’ language incorporates federal statutory law.” The court, therefore, did not resolve the issue before this court.


author: PER CURIAM.

text:
    DIANNE L. SINNOTT v. GERALD D. SINNOTT
    (15642)
    O’Connell, Spear and Hennessy, Js.
    Submitted on briefs December 18, 1996
    officially released January 21, 1997

      David M. Somers filed a brief for the appellant (defendant).

      Laura A. Goldstein filed a brief for the appellee (plaintiff).
   PER CURIAM.

The defendant appealed from the judgment of the trial court finding him in contempt of court for failure to comply with certain of the terms of the judgment dissolving his marriage to the plaintiff. The defendant claims that the trial court improperly (1) found the defendant in contempt of court, (2) exercised jurisdiction over the defendant’s 401k plan, (3) excluded documentary evidence and refused to allow the defendant to call plaintiff’s counsel as a witness, and (4) awarded counsel fees to the plaintiff. We affirm the judgment of the trial court.

The defendant has failed to present either a written memorandum of decision or a transcribed copy of an oral decision, signed by the court, stating its decision on the issues in the case and, if there were factual findings, the factual basis for its decision. See Practice Book § 4059. The defendant, as appellant, has the responsibility to provide this court with an adequate record for review. Practice Book § 4061; DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983), Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Connecticut Bank & Trust Co., N.A. v. Linsky, 32 Conn. App. 13, 15, 627 A.2d 954 (1993); Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 178, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1383 (1991). “ ‘This court recently noted that we cannot render a decision without first having “specific findings of fact to determine the basis of the court’s ruling.” State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993).’ ” Gorneault v. Gorneault, 34 Conn. App. 923, 924, 642 A.2d 734, cert. denied, 231 Conn. 911, 648 A.2d 152 (1994). We have consistently stated that it is the responsibility of the appellant to provide an adequate record for review and we see no reason to depart from that rule. We, therefore, decline to review this matter.

The judgment is affirmed.


author: LAVERY, J.

text:
    RONALD M. TURECK ET AL. v. DAVID P. GEORGE ET AL.
    (14927)
    Foti, Lavery and Heiman, Js.

      Argued October 1, 1996
    officially released January 28, 1997

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellant (named plaintiff).

      Michael P. Del Sole, for the appellees (defendants).
   LAVERY, J.

The named plaintiff appeals from the judgment of the trial court denying him prejudgment interest from the date of the plaintiffs offer of judgment, filed subsequent to the granting of his motion for summary judgment on the issue of liability, until the time of the plaintiffs acceptance of the defendants’ offer of judgment.

The controlling issue in this appeal is whether the words “after trial,” as used in General Statutes § 52-192a (b), should be inteipreted to mean after a motion for summary judgment has been granted only as to the issue of liability. The plaintiff argues that the word “trial,” as used in § 52-192a (b), encompasses the rendering of summary judgment as to the issue of liability only. We disagree and affirm the judgment of the trial court.

The relevant facts are as follows. On October 18, 1986, the plaintiff was operating a motor vehicle westbound on Route 80 in North Branford. The plaintiff had come to a stop when he was hit from behind by the named defendant, who was operating a motor vehicle owned by the defendant Catherine George. As a result of the collision, the plaintiff suffered a variety of injuries.

The plaintiff brought suit and on August 5,1991, filed a motion for summary judgment as to liability only. The trial court, Flanagan, J., granted the plaintiffs motion on August 26, 1991. On October 15, 1991, the plaintiff filed an offer of judgment in the amount of $100,000, to which the defendants did not respond. On April 13, 1995, the defendants filed an offer of judgment, offering to allow the plaintiff to take judgment for the sum of $100,000. On April 21, 1995, the plaintiff accepted the defendants’ $100,000 offer of judgment.

The plaintiff thereafter filed a motion for prejudgment interest in which he claimed $42,000 in interest from the defendants. The plaintiff contended that he was entitled to that amount because he recovered from the defendants an amount equal to his prior offer of judgment. The trial court, Hartmere, J., determined that there had been no trial and, therefore, concluded that the plaintiff was not entitled to an award of interest. The plaintiff now appeals the judgment of the trial court.

The term “trial” is defined as “a judicial investigation and determination of the issues between the parties to an action.” 75 Am. Jur. 2d, Trial § 2. In a general sense, the term “trial” means “the investigation and decision of a matter in issue between parties before a competent tribunal, including all the steps taken in the case from its submission to the court or jury to the rendition of judgment.” 88 C.J.S., Trial § 1. In Connecticut, the term trial is defined in a criminal case as a “judicial proceeding at which the guilt or innocence of the defendant to the offense or offenses charged is to be determined.” Practice Book § 1021 (11). No parallel definition exists with respect to civil cases. We, therefore, look to the General Statutes and the rules of practice to deduce what the term encompasses in the context of a civil case. Lafayette Bank & Trust Co. v. Szentkuti, 27 Conn. App. 15, 20, 603 A.2d 1215, cert. denied, 222 Conn. 901, 606 A.2d 1327 (1992).

In his motion for summary judgment, the plaintiff sought summary judgment as to liability and an order for an immediate hearing in damages. Practice Book § 385 provides in relevant part: “A summary judgment, interlocrrtory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages. In such case, the court shall order an immediate hearing before a referee, before the court, or before a jury . . . It is clear from the record that on August 26,1991, the trial court granted the interlocutory motion. No hearing in damages ever took place. A summary judgment on liability only is not a final judgment from which an appeal may be taken, since the judgment is not completed until damages have been assessed. Pinnix v. LaMorte, 182 Conn. 342, 343, 438 A.2d 102 (1980). The plaintiff filed his offer of judgment in the amount of $100,000 on October 15, 1991. No further action took place until April 13, 1995, when the defendants made their offer of judgment to the plaintiff. It was only after the stipulated judgment was entered that the plaintiff moved for prejudgment interest on its offer of judgment.

Practice Book §§ 345 through 351 were adopted originally in 1978 in response to the passage of § 52-192a in 1976. W. Moller & W. Horton, 1 Connecticut Practice Series: Practice Book Annotated (1992) § 350, p. 545. We, therefore, look to the legislative intent and case law interpretation of § 52-192a to determine the meaning of “after trial” in the context of the offer of judgment by the plaintiff.

We conclude that the intent of the legislature is clear that § 52-192a interest should be imposed only after a judgment or award has been granted by the trial court. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996); State v. Spears, 234 Conn. 78, 86-87, 662 A.2d 80 (1995).” (Internal quotation marks omitted.) State v. Harrell, 238 Conn. 828, 832, 681 A.2d 944 (1996). At the time the plaintiff made his offer of judgment in 1991, General Statutes (Rev. to 1991) § 52-192a (a) provided in pertinent part that “[w]ithin thirty days after being notified of the filing of the ‘offer of judgment’, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. ...”

In 1994, the legislature passed Public Acts 1994, No. 94-20, which amended § 52-192a (a) to provide that the acceptance of an offer of judgment must be done prior to a jury verdict or court award. The reason for this amendment was set forth by Representative Dale W. Radcliffe on the house floor in debate on that act. In explaining the judiciary committee’s recommendation of the bill, he said: “Under existing law, as the chairman indicated, there are times when a verdict might be rendered by a jury. The verdict is accepted by the court and, because an offer of judgment may be filed fewer than 30 days prior to the entry of a verdict, the defendant then has an option of either accepting the jury verdict, which may in fact be higher than the offer of judgment or accepting the offer of judgment after the verdict has in fact been rendered because it would still be within that 30-day period, and basically what this bill says is that one must make an election. . . .

“Basically, it says that a defendant should not be able to have it both ways, should not be able to take a chance on a verdict by a jury and then if that verdict is unfavorable, then be able to accept an offer of judgment, which was previously entered in good faith and I think it does accomplish that. . . .”37 H.R. Proc., Pt. 3, 1994 Sess., pp. 787-88.

“In principle, a statutory amendment that construes and clarifies a prior statute operates as the legislature’s declaration of the meaning of the original act. State v. Blasko, 202 Conn. 541, 558, 522 A.2d 753 (1987); Neyland v. Board of Education, 195 Conn. 174, 180, 487 A.2d 181 (1985). [I]f the amendment was enacted soon after controversies arose as to the inteipretation of the original act, it is logical to regard the amendment as a legislative inteipretation of the original act .... State v. Blasko, supra, 558, quoting 1A J. Sutherland, [Statutory Construction (4th Ed. Sands 1986)] § 22.31, p. 276; see also Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 640, 513 A.2d 52 (1986). To determine whether an act should be characterized as clarifying legislation, we look to the legislative history to determine the legislative intent. State v. Blasko, supra, 558.” (Internal quotation marks omitted.) Darak v. Darak, 210 Conn. 462, 471, 556 A.2d 145 (1989). It is clear from Representative Radcliffe’s remarks that the purpose of the amendment was to clarify the statute’s application where a verdict is being returned before the thirty day period for acceptance had expired, but it is also clear that § 52-192a does not become operative until there is a final judgment.

In Civiello v. Owens-Coming Fiberglass Corp., 208 Conn. 82, 91, 544 A.2d 158 (1988), the Supreme Court held that absent a final judgment, a plaintiff could not prevail on his claim seeking § 52-192a (b) interest. The court held that the amount of the final judgment determines whether interest is to be awarded. Id., 91.

In Paine Webber Jackson & Curtis, Inc. v. Winters, 22 Conn. App. 640, 653, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990), this court held: “An award of interest pursuant to § 52-192 (a) is independent of the judgment, can be calculated only after judgment has been rendered and is awarded upon a posttrial motion.”

Since the plaintiffs motion for summary judgment was interlocutory, there was not a final judgment at the time the plaintiff accepted the defendants’ offer of judgment. When the plaintiff accepted the defendants’ offer of judgment, the acceptance was an agreement to enter into a stipulation for judgment. Gionfriddo v. Avis Rent-A-Car Systems, Inc., 192 Conn. 301, 305, 472 A.2d 316 (1984). “A stipulated judgment is not a judicial determination of any litigated right. ... It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. ... [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.” (Citations omitted; internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990). When the plaintiff accepted the defendants’ offer, the parties simply entered into a contract to resolve their differences for $100,000.

In a stipulated judgment, it is presumed that the parties intended to settle all aspects of the controversy, including all issues raised by the papers comprising the record. Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 49, 526 A.2d 1329 (1987).

We conclude that the term “after trial” in § 52-192a (b) means a “final judgment” and, since the plaintiffs motion for summary judgment was for liability only, its granting by the trial court was not a final judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       One of the two original plaintiffs withdrew from the case on April 21,1995.

       General Statutes § 52-192a (b) provides: "After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1,1981. In those actions commenced on or after October 1,1981, the interest shall be computed from the date the complaint in the civil action was filed with the court if the ‘offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       General Statutes § 52-192a (a) provides: “After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such 'offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.”


author: O’CONNELL, J.

text:
    STATE OF CONNECTICUT v. BRYANT K. ROLLINS
    (14300)
    O’Connell, Spear and Hennessy, Js.
    Argued September 25, 1996
    officially released January 28, 1997

      James B. Streeto, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Kevin Kane, state’s attorney, and Steven Carney, deputy assistant state’s attorney, for the appellee (state).
   O’CONNELL, J.

The defendant appeals from the judgment of conviction, following a plea of nolo contendere, of burglary in the third degree in violation of General Statutes § 53a-103. He claims that the trial court improperly (1) denied his motion to suppress his statement, (2) denied his motion to dismiss other cases in which nolles had been entered as part of a plea bargain, and (3) denied his motion to dismiss based on his attorney’s conflict of interest. We reverse the judgment of the trial court.

The record discloses the following facts. While incarcerated on an unrelated offense, the defendant was arrested and charged with multiple counts of burglary and larceny. After the defendant was given Miranda warnings, he invoked his right to counsel. No attempt was made to interrogate the defendant at the time he was charged, and Attorney Nancy Radoff, a public defender, was appointed to represent him. The defendant and Radoff met on April 15,1992. Radoff instructed the defendant to remain silent until she had an opportunity to discuss the matter with the state’s attorney. Despite her efforts over the next several weeks, Radoff was unable to obtain anything more definite from the state than a statement that a confession by the defendant would be taken into consideration.

Following another conversation between Radoff and the defendant, Radoff gave the state’s attorney’s office her permission to question the defendant. Consequently, on May 12, 1992, the police went to the jail to interrogate the defendant. After signing a waiver of rights, the defendant gave the statement that is the subject of the motion to suppress. Radoff was not present when the defendant waived his right to counsel or at the time he gave his statement.

The defendant thereafter filed a motion to suppress the statement given to the police on May 12, 1992, and a motion to dismiss alleging a conflict of interest within the public defender’s office, both of which were denied. The defendant then entered into a plea bargain with the state. Under the terms of the plea bargain, the defendant agreed to enter a conditional plea of nolo contendere to one charge of burglary in the third degree, and, in exchange, the state agreed to enter a nolle prosequi on each of the remaining counts. The nolo plea was accepted, but at the state’s request the nolles were not recorded by the trial court until the sentencing hearing. At the sentencing hearing, the defendant moved to dismiss the balance of the charges instead of allowing the state to nolle them. The court denied this motion.

I

BASIS OF APPELLATE REVIEW

As a threshold matter, the state contends that a nolo contendere plea under General Statutes § 54-94a does not entitle a defendant to appellate review of the denial of a motion to suppress based on a Miranda violation. Section 54-94a expressly authorizes an appeal from, inter alia, the denial of a motion to suppress evidence based on a claim of involuntariness of a statement. State v. Sebastian, 41 Conn. App. 530, 534, 677 A.2d 437, cert. denied, 238 Conn. 906, 679 A.2d 365 (1996). The state argues, however, that the “involuntariness” referred to in § 54-94a is not the same kind of “involuntariness” relied on by the defendant.

The state bases its argument on the portion of General Statutes § 1-1 (a) that provides that “technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” The defendant’s claim of involuntariness arises from his allegation that the police improperly reinstituted interrogation after he exercised his constitutional right to counsel following an advisement of rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The state’s position is that because “involuntariness’’ is a word of art, and a statement may be taken in violation of Miranda, but still be perfectly voluntary. In support of this position, the state argues that the legislature intended “involuntariness” in § 54-94a to mean a statement that is the product of coercive police action that overcomes the will of the person who confesses. This definition would not include statements that were “involuntary” solely because they were not made in compliance with Miranda requirements.

Subsequent to the filing of the briefs in this case, our Supreme Court held in State v. Piorkowski, 236 Conn. 388, 406, 672 A.2d 921 (1996), that “the legislature intended the term ‘involuntariness’ in § 54-94a to encompass the two types of voluntariness issues . . . namely, whether (1) the police had complied with the prophylactic requirements of Miranda, and (2) the police had elicited the statement from the defendant by overcoming his will . . . .” It is clear that the law of this state now permits a defendant to seek review of a Miranda violation under the voluntariness clause of § 54-94a.

II

MOTION TO SUPPRESS

The defendant claims that the trial court should have granted his motion to suppress his statement of May 12, 1992, because it was taken in violation of the fifth and fourteenth amendments of the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, the defendant claims that the incriminating statements were taken at a police initiated interrogation in the absence of counsel following an assertion of his right to counsel.

The United States Supreme Court held in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), that an “accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” (Emphasis added.) Because the defendant in this case exercised his fifth amendment right to counsel, we must determine (1) whether counsel was made available to him within the meaning of Edwards and its progeny, and (2) whether the defendant actually initiated the further communication with the police.

A

We first ascertain the meaning of the phrase, “counsel have been made available.” The state argues that an Edwards violation did not occur in this case because the defendant did not assert a “full” right to counsel but rather asserted only a “limited” right to talk with his attorney prior to speaking to the police. The United States Supreme Court does not recognize such a distinction in this context. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990).

“The merit of the Edwards decision lies in the clarity of its command and the certainty of its application. [The United States Supreme Court has] confirmed that the Edwards rule provides clear and unequivocal guidelines to the law enforcement profession .... Even before Edwards [the United States Supreme Court] noted that Miranda’s relatively rigid requirements that interrogation must cease upon the accused’s request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis.” (Citations omitted; internal quotation marks omitted.) Minnick v. Mississippi, supra, 498 U.S. 151.

Furthermore, “ [c] onsultation is not a precise concept, for it may encompass variations from a telephone call to say that the attorney is en route, to a hurried interchange between the attorney and client in a detention facility corridor, to a lengthy in-person conference in which the attorney gives full and adequate advice respecting all matters that might be covered in further interrogations. And even with the necessary scope of consultation settled, the officials in charge of the case would have to confirm the occurrence and, possibly, the extent of consultation to determine whether further interrogation is permissible. The necessary inquiries could interfere with the attorney-client privilege.” Id., 155. In an effort to make its position crystal clear, the United States Supreme Court articulated that “[whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.” (Emphasis added.) Id., 153.

In short, Minnick “establishes an irrebuttable presumption that a criminal suspect, after invoking his Miranda right to counsel, can never validly waive that right during any police-initiated encounter, even after the suspect has been provided multiple Miranda warnings and has actually consulted his attorney.” (Emphasis in original.) Id., 156 (Scalia, J., dissenting); see McNeil v. Wisconsin, 501 U.S. 171, 176-77, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991).

Because in the present case the defendant’s counsel was not actually present, if the May 12, 1992 interrogation was initiated by the police, any statement made at that time should have been suppressed according to Minnick.

B

We next determine whether the post-Miranda interrogation in this case was police initiated or initiated by the defendant. The record discloses that the trial court specifically determined that the defendant’s “attorney was aware of the fact that the police were going to speak to [him], that the attorney gave them permission to speak to [the defendant] without her being there, and that the attorney advised [the defendant] that the police were going to be [at the jail] to speak to [him] and that [the attorney] told [him] to make whatever deal [he] could with the police.” (Emphasis added.) The trial court’s findings concerning Radoff s knowledge of the situation and her instructions to the defendant do not support the conclusion that the defendant initiated the interrogation.

After the defendant refused to discuss any deals without consulting his public defender, the police initiated the communication with Radoff, and she attempted to waive the defendant’s rights for him by persuading him to talk with the police and “work out the best deal he could.” The defendant merely responded to the actions of the police, and remained at all times entitled to the presence of his counsel during the interrogation.

The state may not prove that the defendant validly waived his Miranda rights “by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards v. Arizona, supra, 451 U.S 484. Edwards requires that “the accused himself initiat[e] further communication, exchanges, or conversations with the police.” Id., 485.

We conclude that the May 12, 1992 interview was initiated by the police and, because the defendant’s counsel was not actually present, the trial court improperly denied the defendant’s motion to suppress.

Ill

NOLLE PROSEQUI

Although our decision on the first issue will require a new trial, we must consider the defendant’s second claim because it implicates the charges on which the defendant may be tried following our remand.

Following the denial of the defendant’s motion to suppress, the state and the defendant entered into a plea agreement whereby the defendant would plead nolo contendere, pursuant to § 54-94a, to one count of burglary in the third degree and the state would nolle the remaining counts. At the time of plea, the state’s attorney stated that he was entering nolles on all of the other cases but asked that the nolles not be recorded until sentencing.

The defendant relies on General Statutes § 54-561), the gravamen of which is that a defendant has a right to a dismissal instead of a nolle if he objects to the nolle and declares that if the charge is not dismissed he prefers to go forward with a trial.* ***** The pertinent part of § 54-56b provides that “[a] nolle prosequi may not be entered as to any count ... if the accused objects . . . and demands either a trial or dismissal . . . .” (Emphasis added.) Here, the defendant does not argue that he was denied his right to a trial on the nolled charges following the denial of his request for dismissals. At sentencing, the state declared that it “intend[ed] to enter a ‘nolle’ per its agreement on all remaining files . . . .” When the defendant asked for dismissals instead of nolles, the state responded that it was ready to try all of the nolled cases. The trial court denied the motion to dismiss the nolled charges on the ground that they were part of a plea agreement.

In any event, under the circumstances of this case, the defendant has not been harmed. If he still wants trials on the twenty-four nolled cases, he may ask for them when this case returns to the trial court pursuant to our remand of the first issue.

IV

CONFLICT OF INTEREST

Because our disposition requires a new trial, we do not reach the defendant’s third claim.

The judgment is reversed only as to the conviction of burglary in the third degree and the cases are remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based, on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” (Emphasis added.)

       The defendant does not raise his claim under Practice Book § 4003 (a) because the rules of practice were not amended to include “involuntariness” as a ground for appeal until after this appeal was taken.

       General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.”

        State v. Piorkowski, supra, 236 Conn. 399, held that failure to arraign the defendant promptly in accordance with General Statutes §§ 54-lc and 54-lg did not implicate the prophylactic Miranda rights and, therefore, did not give rise to a claim under § 54-94a.

       Despite this allegation, the defendant did not pursue asíate constitutional claim in his brief or in oral argument.

       “The Court: Okay. Now on all the other cases, nolles have been noted. “[State’s Attorney]: Yes, Your Honor, perhaps they shouldn’t be recorded until that October date ....
      “The Court: Yes.
      “[State’s Attorney]: That is the intent.
      “The Court: All right. Nolles are noted, but not officially entered until the day of sentencing, which will be when?
      “Court Clerk: October 19th.”

       General Statutes § 54-56b provides: “Right to dismissal or trial on nolle. A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects 1 o 1he nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary.”

       “The Court: . . . . Incidentally, for the record, are you ready to try any of these cases if you had to . . . ?
      “[State’s Attorney]: Yes, Your Honor, the state would be ready on all matters.
      “The Court: Okay. All right. Then the motion to dismiss is denied.”

       We note that because the defendant’s nolo contendere plea to one count of burglary in the third degree was entered as part of a single plea bargain that encompasses both a sentencing agreement and an agreement that the state enter nolles with respect to other counts, our conclusion and remand for a new trial necessarily unravels the entire plea bargain. State v. Carter, 43 Conn. App. 555, 563 n.5, 685 A.2d 1129 (1996); State v. Alicea, 41 Conn. App. 47, 60 n.14, 674 A.2d 468 (1996).


author: STOUGHTON, J.

text:
    JUNE P. DEMARINIS ET AL. v. UNITED SERVICES AUTOMOBILE ASSOCIATION CASUALTY INSURANCE COMPANY, INC.
    (15818)
    O’Connell, Heiman and Stoughton, Js.

      Argued October 30, 1996
    officially released January 28, 1997

      Thomas G. Moukawsher, for the appellants (plaintiffs).

      Ralph G. Eddy, for the appellee (defendant).
   STOUGHTON, J.

This is an appeal from a summary judgment rendered in favor of the defendant. At issue in this appeal is whether, in light of General Statutes §§ 52-555a through 52-555d, a recovery for loss of consortium remains dependent upon and derivative of bodily injury to the spouse. We affirm the judgment of the trial court.

The essential facts giving rise to this lawsuit are not in dispute. On May 26, 1992, Anthony R. DeMarinis, Jr., was operating his motorcycle when it collided with a motor vehicle owned by Donald F. Scarfo and operated by Natalie Scarfo. DeMarinis suffered injuries in the collision that resulted in his death on May 28,1992. Prior to that date, the defendant United Services Automobile Association Casualty Insurance Company, Inc. (USAA), had issued an automobile liability policy to DeMarinis, which was in effect at the time of the collision, covering three vehicles including the motorcycle. The Scarfo vehicle was covered by an automobile liability insurance policy issued by the Royal Insurance Company under which the sum of the limits of bodily injury liability coverage was $300,000.

The plaintiff, June P. DeMarinis, is the surviving spouse of DeMarinis and was appointed administratrix of his estate. The plaintiff claimed damages from the Scarfos as administratrix for the wrongful death of DeMarinis and on her own behalf for loss of consortium. On or about December 10,1992, the plaintiff settled the claims against the Scarfos with the Royal Insurance Company, having requested and received permission from the defendant to do so, for the entire proceeds of the policy. Two hundred thousand dollars was paid on account of the wrongful death claim, and $100,000 was paid on the loss of consortium claim. These payments exhausted the limits of liability under all bodily injury liability insurance policies applicable at the time of the accident.

The plaintiffs insurance policy with the defendant USAA provides uninsured motorist coverage. Under the terms of that coverage, the defendant agreed to “pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. Sustained by a covered person; and 2. Caused by an accident.” That coverage is provided “only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.”

The policy defines an uninsured motor vehicle as one “[fjor which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is less than the sum of the limits of liability for Uninsured Motorists Coverage applicable to each vehicle for this coverage under this policy.” The limit of liability for uninsured motorist coverage under the terms of the policy “for all damages, including . . . direct, derivative or consequential damages arising out of [bodily injury] sustained by any one person in any one accident” is “[t]he limit of liability for [uninsured motorist] Coverage shown in the Declarations for ‘each person’ multiplied by the number of premiums shown . . . .” The “limit of liability for all damages for [bodily injury] resulting from any one accident” is “the limit of liability for [uninsured motorist] Coverage shown in the Declarations for ‘each accident’ multiplied by the number of premiums shown . . . .”

The policy declarations show limits of liability for uninsured motorist coverage for bodily injury to be $100,000 for each person and $300,000 for each accident. Because there were three premiums, the defendant’s limit of liability for uninsured motorist coverage was $300,000 for all damages arising out of bodily injury sustained by one person and $900,000 for bodily injury resulting from any one accident.

The plaintiffs claim on appeal that the trial court improperly (1) held that a postmortem loss of consortium claim under § 52-555a is dependent and derivative of the claim of the deceased spouse and (2) failed to hold that the defendant’s policy would provide coverage “even under the standard set forth in Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 524 A.2d 641 (1987).” Because those issues are overlapping, we address them together.

The cause of action for loss of consortium has evolved over time in Connecticut. Because of the legal status of married women in earlier times, the common law cause of action for loss of consortium generally was available only to husbands. Hopson v. St. Mary’s Hospital, 176 Conn. 485, 487-88, 408 A.2d 260 (1979). After the legislature had altered the status of married women, so that a married woman could recover damages for personal injury in her own right, our Supreme Court denied a right of recovery for loss of consortium to either spouse. Marri v. Stamford Street R. Co., 84 Conn. 9, 78 A. 582 (1911). Marri was overruled in Hopson v. St. Mary’s Hospital, supra, 487. Our Supreme Court in Hopson held that either spouse has a claim for loss of consortium shown to arise from a personal injury to the other spouse caused by negligence of a third person.

Subsequently, our Supreme Court in Ladd v. Douglas Trucking Co., 203 Conn. 187, 191, 523 A.2d 1301 (1987), determined that “a spouse may recover for antemortem loss of consortium in her individual capacity where her common law claim has been joined with the wrongful death action brought by the decedent’s estate pursuant to § 52-555.” The court further found, however, that a spouse may not recover for postmortem loss of consortium under Connecticut statutory or common law. Id., 191.

Shortly thereafter, in Izzo v. Colonial Penn Ins. Co., supra, 203 Conn. 305, the Supreme Court considered whether the spouse of a person injured in an automobile accident was entitled to a separate “per person” recovery for the injury of loss of consortium within the “per occurrence” limit of an automobile liability insurance policy. The policy at issue in Izzo provided liability limits applicable to bodily injury coverage in the amount of $100,000 per person and $300,000 per occurrence. Id., 308. The claim of the injured person in Izzo was settled for $100,000, and the spouse, who was not involved in the accident, sought to recover damages for her claim of loss of consortium under the higher per occurrence limit. Id. The Supreme Court held that the per person limit applied to all damages sustained by all persons as a result of bodily injury to one person, rejecting an interpretation of the claim for loss of consortium as a claim for bodily injury to a second person. Id., 313. The court in Izzo noted that decisions in which other jurisdictions have treated loss of consortium as separate from the claim for direct physical injury for purposes of determining the limit of liability had been based on language of the relevant policies referring to the number of personal injuries arising out of one accident as opposed to the number of bodily injuries. Id.

On October 1, 1989, § 52-555a was enacted. That statute provides: “Any claim or cause of action for loss of consortium by one spouse with respect to the death of the other spouse shall be separate from and independent of all claims or causes of action for the determination of damages with respect to such death.” The plaintiff argues that the enactment of § 52-555a eliminated the rule set forth in Izzo, making a postmortem loss of consortium claim “separate and independent for all purposes under the law,” including the calculation of limits of liability under a liability insurance policy. She concedes only that a bodily injury must occur before a cause of action for loss of consortium can arise. She, therefore, claims that there were two injuries suffered in the present case for purposes of calculating the liability limitation, the bodily injuries to her husband and her own loss of consortium, and that the limit of liability in this case is $600,000 rather than the $300,000 found by the trial court. We disagree.

Section 52-555a did change the rule set forth in Ladd by making a claim for loss of consortium with respect to the death of a spouse “separate from and independent of all claims or causes of action for the determination of damages. ” It did not alter the holding in Izzo and does not pertain to whether a claim for loss of consortium constitutes a separate injury for purposes of calculating the limits of liability under a liability insurance policy. The language of this statute is clear and unambiguous, carving out of the total damages that might be recovered, those damages associated with the loss of consortium. The postmortem loss of consortium cause of action, although separate and independent as a basis for claiming damages, remains derivative of the claim arising out of injury to the spouse, and it could not come into existence without that injury. See Izzo v. Colonial Penn Ins. Co., supra, 203 Conn. 305.

To determine the limits of liability under a liability insurance policy, we look to the policy language rather than to the language of § 52-555a. See id. The relevant language in the policy at issue provides: “The limit of liability for [uninsured motorist] Coverage shown in the Declaration for ‘each person’ multiplied by the number of premiums shown, is our maximum limit of liability for all damages, including ... all ... derivative . . . damages arising out of [bodily injury] sustained by any one person in any one accident.” Thus, the limit of liability under the policy for damages arising out of a single accident is subject to the limitation calculated on the basis of the number of persons suffering “bodily injury.” Only one person sustained bodily injury in this case. See id. The limit of liability is, therefore, $300,000 for all damages suffered as a result of the decedent’s injuries, including any loss of consortium suffered by the plaintiff. Because that limit is not greater than the total amount of the tortfeasor’s liability insurance coverage available to the plaintiff, the tortfeasor’s motor vehicle does not qualify as an “underinsured” motor vehicle, and no coverage is available to the plaintiff under the uninsured-underinsured coverage provided by the terms of her policy with the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The text of § 52-555a is set forth hereafter in the text of this opinion. The succeeding three sections require that any claim or cause of action for loss of consortium be brought with or joined with the claims and causes of action with respect to the death of the spouse, that such an action must be commenced within the time in which an action with respect to the death of the spouse may be commenced, and that the claim or cause of action is contingent on proof of facts sufficient to establish recovery for wrongful death of the spouse and is subject to any defenses available against the claim for wrongful death.