author: Dupont, C. J.

text:
    Betty H. Grey et al. v. Coastal States Holding Company et al.
    (7963)
    Dupont, C. J., O’Connell and Lavery, Js.

      Argued December 8, 1989
    decision released June 22, 1990

      Louis Ciccarello, for the appellants (plaintiffs).

      Michael W. Lyons, with whom was John J. Bove, and, on the brief, Anthony E. Schwartz and Salvatore J. Coppola, for the appellees (named defendant et al.).
   Dupont, C. J.

This appeal arises out of an action for compensatory and punitive damages, injunctive relief and attorney’s fees against the owners of three residential condominium units and against Hawkins Landing Association, Inc. (the association), brought by the owners of the two remaining condominium units. The plaintiffs alleged that the defendants’ units were expanded, in violation of article XIII, § 13.4, of the association’s declaration and of General Statutes § 47-236 (d), when they built an additional story onto each of their units and increased the ground footage of those units. The plaintiffs further alleged that the defendants thereby appropriated to their sole use certain common elements in which all unit owners had an interest. The trial court awarded attorney’s fees to the plaintiffs in the amount of $27,000 and ordered the defendants to revise the condominium documents at their own expense to reflect the expansion of the defendants’ units and to take the necessary action to reallocate the common expenses in accordance with the current square footage of the living area of each unit. The court refused to grant other damages or to require the restoration of the defendants’ units to their original square footage or to order the association to take all steps necessary to prevent future violations of the condominium documents. The plaintiffs appeal from that judgment. We affirm.

On appeal, the plaintiffs claim that the court improperly (1) failed to determine that the upward expansion of the defendants’ units was an appropriation of air space that was common to all unit owners, (2) failed to award compensatory damages in proportion to the plaintiffs’ percentage interests in the wrongfully appropriated common elements, and (3) failed to conclude that the defendants were unjustly enriched by the wrongful appropriation of the plaintiffs’ interests in the common elements as measured by the value of the improvements to the defendants’ units.

The plaintiffs Betty H. Grey and Louis D. Grey own one unit (4E) in a five unit residential condominium, composed of four separate buildings, and known as Hawkins Landing. The plaintiff Peter Kingsbury owns one unit (4D) in the same building as the unit belonging to the other two plaintiffs. The defendants Coastal States Holding Company (Coastal States) and Alvin Farans, a partner in Coastal States, own unit 1A, and the defendant Ronald Kellogg owns units 2B and 3C. Each of the three units owned by the defendants is a separate structure. The defendant association is a non-stock corporation that manages and controls the condominium through its executive board. At the time of this litigation, Betty Grey, Kingsbury, Farans and Kellogg comprised the executive board.

The trial court found that at the time of the condominium declaration in August, 1985, units 1A and 2B were one story cottages. Prior to the declaration, Farans, acting for Coastal States, had been issued a building permit to build an addition and add a second story to unit 1A. The permit was issued on December 12,1984, and required that construction commence within six months. On May 28,1985, however, Coastal States filed with the town planning and zoning commission a revised set of plans that showed a one story dwelling, and it marked the original plans for two stories void. The trial court found, therefore, that, at the time of the declaration, the only construction plan in effect for unit 1A was for a single story dwelling.

The court further found that, at an executive board meeting held on May 21, 1986, Betty Grey expressed concern about Kellogg’s plans to renovate unit 2B to add second and third levels. At the meeting, Farans described his plan for a second floor addition to unit 1A. The plaintiffs were unaware that Coastal States, on February 6, 1986, had been issued a building permit to construct a second story.

On May 27, 1986, Betty Grey and Kingsbury wrote a letter to Kellogg stating that they had no objection to the addition of second stories to units 1A and 2B if the condominium documents were revised to avoid title problems. The court concluded, therefore, that Kellogg and Coastal States could reasonably have assumed that there would be eventual consent to the addition of two stories when the legal technicalities were resolved.

The court concluded that at another meeting on June 18,1986, the parties had reached a consensus on a means of determining compensation for the air expansion into common elements and that the agreement could be reduced to writing. An agreement was drafted by the plaintiffs’ attorney and signed by them. Kellogg and Coastal States refused to sign it, however, because, in addition to the agreed upon items, it provided for the payment by the defendants of the plaintiffs’ attorney’s fees.

The court found that on June 26,1986, the date the agreement was delivered to Kellogg, Coastal States began construction, “acting under the belief that an agreement had been reached.” The court further found that Farans believed he had the right, pursuant to article Yin, § 8.1, of the declaration, to add a second story. The plaintiffs began their action against Coastal States in July, 1986.

Kellogg obtained a building permit for a small addition and a second floor to be added to unit 2B on July 8, 1986, and began construction in September, 1987. The court found that he believed that a September, 1987 dismissal of the plaintiffs’ action against him was based on its merits, and therefore left him free to begin construction of a second story.

The court made a number of other relevant factual findings and drew conclusions from those findings. As a result of the additions, unit 1A was increased by 986 square feet of living space, representing an increase in appraised value of $182,410, and unit 2B was increased by 751 square feet of living space, for an increase in value of $138,935. The expanded footprint of unit 1A took fifty square feet of common area, an overall increase of thirty square feet and that of 2B took twenty eight square feet of common area, an overall increase of fifteen square feet.

The defendants’ expansions resulted in a benefit to them and a loss to the plaintiffs of their property interests. The expansion of the units took square footage of common areas and represented changes in the boundaries of those units requiring unanimous consent of the unit owners pursuant to the declaration. Because the expansions were not done with unanimous consent of the unit owners, the condominium agreement was violated. The expansions, however, were accomplished in the belief that an agreement among the unit owners had been reached, and the court, therefore, concluded that the defendants had not wilfully failed to comply with the Common Interest Ownership Act or the declaration and that the requested remedy of restoration was too harsh. On the basis of these findings and conclusions, the court denied the relief of restoring 1A and 2B to their original condition, and declined to award punitive damages under General Statutes § 47-278.

The plaintiffs had requested compensatory damages. They sought 40 percent of the increase in the value of units 1A and 2B. Evidence had been presented from which the court could assess the increase in the value of those units because of the additions to them. The court refused to grant damages on that basis because it found such an award was not supported by statute or case law and because § 47-212 (a) barred the award of consequential, special or punitive damages unless specifically provided for by law. The court further refused to grant compensatory damages on any other basis because the plaintiffs had not produced evidence of their actual monetary loss, of the value of any reduction in their unit ownership interest in Hawkins Landing or of the value of the common elements of which they were deprived as a result of the expansion.

The trial court was correct in finding that the defendants had violated the condominium declaration by expanding their units. It did not, however, determine whether air space was a common element. The court’s memorandum of decision can be construed to imply that air space is a common element, but, in response to a motion for articulation, the court specifically refused to find that the air space above and surrounding the physical structures of units 1A and 2B constituted a common element.

Because the plaintiffs, by the terms of the condominium documents, have an interest in any common elements, we must determine whether the land and air space taken were common elements. Common elements are defined as “all portions of the common interest community other than the units.” General Statutes § 47-202 (4) (A); Declaration of Hawkins Landing, art. I, § 1.5. It is elementary to say that what is not a unit is a common element, if it is within the real estate owned by the condominium association. General Statutes § 47-202 (4) (A). “Real property” under the act includes spaces that may be filled with air. General Statutes § 47-202 (26). In addition to land itself, the right to use the air above that land is a property interest, capable of ownership, that may be conveyed or taken in condemnation. Transportation Plaza Associates v. Powers, 203 Conn. 364, 366-67, 525 A.2d 68 (1987). Air rights have value and may be assessed or taxed by a municipality. Id., 374 n.6. Implicitly, therefore, they have a fair market value. We, therefore, hold that the air space above the condominium units in this case is a common element, as are portions of the land owned by the association on which no unit was to have been built.

Under article IX of the declaration, the plaintiffs are entitled to a 20 percent interest in common elements for each unit of the condominium they own. The plaintiffs together, therefore, held a 40 percent interest in the air space above the original condominiums as well as in the land on which no unit was to be built. Pursuant to article XI, § 11.1, and article XIII, § 13.4, of the declaration and General Statutes § 47-236 (d), the unanimous consent of the unit owners was required to change the boundaries of a unit and permission of the executive board was required to change the outward appearance of a unit.

If the defendants had abided by the declaration, they would not have been able to build the second stories or to change the ground boundaries of their units. The defendants essentially appropriated air space as well as square footage of land that did not belong to them individually, but belonged to them in common with the other unit owners. The plaintiffs are, therefore, entitled to damages for the property taken from them.

General Statutes § 47-212 (a) provides that the remedies permitted under the act should be liberally administered so that the aggrieved party will be put in as good a position as if the other party had fully performed, provided that consequential, special or punitive damages may not be awarded except as specifically provided by the act or by other rule of law. The principles of law and equity, including the law of real property, apply to the provisions of the act to the extent that they are not inconsistent. General Statutes § 47-207.

General Statutes § 47-278 provides that if a provision of the declaration is violated, “any person . . . adversely affected by the failure to comply has a claim for appropriate relief. Punitive damages may be awarded for a wilful failure to comply with this chapter.” The trial court found that punitive damages were not due because the defendants had not wilfully failed to abide by the declaration. The plaintiffs do not challenge this finding, and we, therefore, do not address the issue of punitive damages. The plaintiffs do, however, argue that the expansion by the defendants of the boundaries of their units without obtaining consent of all the unit owners entitled them to compensatory damages or damages for the unjust enrichment of the defendants. We agree that damages are due. The difficulty arises in the measurement of those damages.

Two possible theories of damages are unjust enrichment and compensatory damages. The plaintiffs claim that they are entitled to a proportionate share of the value of the additions to the defendants’ units, on the theory that the defendants have been unjustly enriched. General Statutes § 47-212 (a), however, provides that any remedy should be aimed at putting the plaintiffs in as good a position as they would have been in had the agreement not been breached. Where there is a statutory scheme for recovery of a benefit that may also be recovered at common law, the statutory procedure must be relied upon unless it is inadequate. National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). Thus, the appropriate remedy here would be to place the plaintiffs in the position they would have been in but for the breach. The appropriate amount of damages, therefore, relates to the value of the elements taken by the defendants. It does not relate to the value of those elements plus the value of any enhancement to them where the value of the enhancement was supplied by the defendants themselves.

There are several possible ways of measuring the plaintiffs’ damages in order to put them in the position they would have been in but for the breach. The plaintiffs would have been entitled to compensation for the additional square footage of land constituting common area that the defendants converted to their exclusive use by expanding their units outward, had the plaintiffs sought such damages and introduced sufficient evidence of valuation. They would also have been entitled to compensation for the air space directly above the defendants’ original units as a part of the wrongfully appropriated common elements. The plaintiffs, however, failed to introduce evidence of the value of either the air space or the square footage of land appropriated by the defendants. They would have been able, therefore, to collect only nominal damages for the appropriation of those elements in this case. Rubin v. Rios, 186 Conn. 754, 756, 443 A.2d 1273 (1982).

Another means of placing the plaintiffs in the position they would have been in had the defendants not appropriated common elements would be to award them an amount equal to any decline in the value of their own units as a result of the unwarranted changes to their neighbors’ units. As the trial court properly found, however, they introduced no such evidence, and, they therefore, cannot recover anything other than nominal damages for such a decline in value.

In summary, we hold that, because the trial court found that the condominium agreement was not wilfully violated and because that finding has not been attacked on appeal, the plaintiffs here were not entitled to punitive damages. They were, however, entitled to either nominal or actual damages. Their actual damages could have been based upon the value of their proportionate shares of the air space and land taken by the defendants or upon any diminution in the value of the plaintiffs’ own units as a result of the defendants’ expansions. They proved neither. Even though no actual damages were proved, the plaintiffs were entitled to nominal damages because of the defendants’ violation of the condominium agreement by appropriating to their private use, elements of land and air in which all unit owners had an interest. Because, however, only nominal damages were due, we decline to reverse. See Rubin v. Rios, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       Hawkins Landing was created by declaration pursuant to the Common Interest Ownership Act. General Statutes § 47-200 et seq. As used in this opinion, the word “defendants” means the defendant owners.

       The plaintiffs do not argue on appeal that the injunctive relief of restoration of the defendants’ units to one story units should have been ordered by the trial court.

       The defendant owners counterclaimed, seeking specific performance of the terms of a resolution allegedly adopted by all of the unit owners, except Louis Grey, and damages, punitive damages and attorney’s fees. The trial court rendered judgment for the plaintiffs on the defendants’ counterclaims. The defendants have not appealed from that judgment.

       The unsigned agreement provided that the defendants would compensate HLAI, based upon a formula, for any common elements taken.

       The footprint of unit 1A was modified so that fifty square feet of common element was taken, but twenty square feet were “given back.” The expansion to 2B took twenty-eight square feet of common element but “gave back” thirteen square feet.

       The four architecturally differing structures in Hawkins Landing were not originally constructed as part of a condominium. For this reason, the original square footage of each unit differed from that of the other units. Nevertheless, article IX of the declaration allocates to each unit owner an undivided 20 percent interest in the common elements of the condominium.

       The defendants do not dispute that air space may be a common element but argue that, even if such is the case, no compensatory damages or damages for unjust enrichment were due for the appropriation of it.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Joseph Burroughs
    (8112)
    Dupont, C. J., Daly and Landau, Js.
    Argued May 8
    decision released July 31, 1990

      Michael A. Fitzpatrick, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (2), and carrying a pistol or revolver without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). The defendant challenges (1) the trial court’s admission of a rebuttal witness’s testimony, (2) its denial of the defendant’s motion for a mistrial, and (3) its denial of the defendant’s motion for a new trial. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On the morning of November 26, 1987, the defendant was talking with a friend in front of J & J Variety Store located at 634 Newfield Avenue in Bridgeport. The victim, Wayne Edwards, shouted at the defendant from across the street demanding a cigarette and exposing a gun he was carrying. The defendant tried to ignore him, but the victim crossed the street and demanded a cigarette from the defendant. In order to avoid the victim, the defendant entered J & J Variety Store.

Erls Allen, the store clerk, observed the defendant enter the store first, followed closely by the victim. The victim then gestured to the defendant and the two began to wrestle. The clerk next heard a shot, saw the victim fall to the floor and then saw the defendant fire a second shot into the victim’s head, causing his death. The clerk saw the defendant put the gun into his jacket pocket and calmly leave the store. The clerk described the gun used by the defendant as a small black .22 caliber revolver. The gun was never recovered and the bullets removed from the victim were .38 caliber.

The defendant testified that he ran an “after hours” club known as the Green Door on Newfield Avenue near J & J Variety. His income was earned from the sale of alcoholic beverages and from running various games of chance. The defendant stated that, because he operated the club, he carried large sums of cash on his person but that he did not carry a weapon. The defendant also testified that the victim had robbed him on three prior occasions.

The defendant introduced evidence that he was peaceful and nonviolent, but that the victim was known to be armed and to prey on those who earned money illegally. The defendant stated that he was, therefore, apprehensive about the victim’s presence that morning and tried to avoid him by entering the store. Once in the store together, the defendant said that the victim spoke to him and pulled his gun. The defendant testified that he grabbed the victim’s gun during the struggle and that it fired twice, striking the victim in the abdomen and head. The defendant said he then slid the gun along the floor and left.

After the close of the defendant’s case, the state called Kmarr Semedo as a rebuttal witness over the defendant’s objections and motion for a mistrial. Semedo testified that he was outside the store that morning and was the first to enter it after the shooting. In the store, Semedo lifted the victim to check for vital signs, saw that he was dead and noticed a gun handle protruding from inside the victim’s coat pocket. Semedo removed the victim’s gun and placed it under the wheel of a car located behind the store. Semedo described this unrecovered gun as a .357 magnum or a big .38 caliber.

Semedo also testified that on a prior occasion he had observed the victim fleeing from gunfire that was coming from the front of the Green Door club. Upon entering the club, Semedo was told by the defendant that someone had robbed him. Semedo testified that he did not know who had fired the shots at the victim that day and had not seen the defendant with a gun. He later testified that the defendant was known to be a peaceful man.

After the verdict was rendered, the defendant moved for, inter alia, a new trial, which was denied.

I

The defendant first challenges the trial court’s admission of Semedo’s rebuttal testimony claiming (1) that the court should not have permitted the state to use the defendant’s prior misconduct to rebut his good character evidence, (2) that this misconduct evidence was irrelevant, and (3) that it was highly prejudicial.

When the state offered the testimony of Semedo as rebuttal evidence, it indicated in its offer of proof that Semedo would testify concerning prior misconduct of the defendant. The state represented that Semedo had witnessed an incident in which the defendant was armed and had shot at the victim after a robbery at the Green Door club. Prior to Semedo’s testimony, the defendant made three objections to its admission: (1) the state failed to make a timely disclosure of the witness’ testimony concerning the defendant’s prior misconduct in accordance with State v. Acquin, 34 Conn. Sup. 152, 381 A.2d 239 (1977); (2) the state failed to disclose any consideration offered to Semedo in exchange for his testimony since Semedo was then incarcerated in the Connecticut Correctional Center at Cheshire and had charges pending against him that related to a murder; and (3) Semedo was an improper rebuttal witness whom the state should have offered in its case-in-chief. The objections were later overruled and exceptions taken.

None of the defendant’s objections may be fairly understood as addressing the inadmissibility of misconduct evidence as improper rebuttal to the defendant’s evidence of good character. To review evidentiary claims, a defendant must strictly comply with the rule of Practice Book § 288 requiring the statement of grounds for each objection. Skinner v. Skinner, 154 Conn. 107, 110, 221 A.2d 848 (1966). Because the basis of the defendant’s claim differs from the ground of his objection at trial, it cannot be the basis for concluding reversible error. Birgel v. Heintz, 163 Conn. 23, 35-36, 301 A.2d 249 (1972). On appeal, “review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection. . . . The reason for this rule is clear: it is to alert the trial court to an error while there is time to correct it . . . and to give the opposing party an opportunity to argue against the objection at trial. To permit a party to raise a different ground on appeal than was raised during trial would amount to ‘trial by ambuscade,’ unfair to both the trial court and to the opposing party.” (Citations omitted.) State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985). Finally, the objection that the evidence was improper rebuttal is too general to warrant consideration on appeal. Andreozzi v. Rubano, 145 Conn. 280, 284, 141 A.2d 639 (1958).

Only the defendant’s third objection approaches stating the defendant’s claim on appeal. The objection was that Semedo was an improper rebuttal witness whom the state should have offered in its case-in-chief. Even if this third objection could be understood to address the defendant’s claim of improper misconduct evidence, this claim is without basis in fact. The rebuttal witness never testified before the jury regarding any misconduct by the defendant. The defendant has conceded this fact. Because no improper misconduct evidence ever came before the jury, this claim is without merit.

The defendant also claims that the misconduct evidence was irrelevant and prejudicial. None of his objections adequately raised these claims. This court will not review unpreserved claims unless the claim is of constitutional magnitude alleging the violation of a fundamental right. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant has not demonstrated any cognizable constitutional claim. “[UJnpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” Id., 241. Rulings on the relevancy of evidence are matters within the discretion of the trial court and are not issues of constitutional dimension. State v. Kim, 17 Conn. 156, 158, 550 A.2d 896 (1988).

II

The defendant next claims that his motion for mistrial should have been granted. Specifically, he argues that the trial court abused its discretion because the admission of Semedo’s testimony affected the fundamental fairness of the trial and that this evidence should have been in the state’s case-in-chief. We disagree.

“The denial of a mistrial is largely discretionary with the trial court and will not be disturbed on appeal unless the appellant can affirmatively demonstrate that his rights were substantially prejudiced so as to deny him a fair trial.” State v. Miles, 195 Conn. 552, 557, 489 A.2d 373 (1985). “A motion for mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial.” State v. Hill, 201 Conn. 505, 510, 523 A.2d 1252 (1986).

The defendant made his motion for a mistrial prior to Semedo’s testimony, based upon the anticipated misconduct evidence that would be proffered. This never occurred. First, the state’s offer of this misconduct evidence was made outside the presence of the jury. Second, the jury did not hear any evidence of misconduct. Therefore, when the motion was before the trial court, no event had occurred that would have prejudiced the defendant and deprived him of a fair trial.

The admission of evidence in rebuttal is within the wide discretion of the trial court. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986). The state generally is not permitted to present a rebuttal witness who merely bolsters its case, but should confine its evidence to the refutation of the defendant’s case-in-chief. Id. As previously noted, the state proffered the rebuttal testimony of Semedo to offer evidence of the defendant’s prior misconduct. In fact, Semedo did not testify about the defendant’s prior misconduct and did rebut certain points of the defendant’s case. We hold in the present case that the defendant has not established that any prejudice resulted. “ ‘It is a “fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” Casalo v. Claro, 147 Conn. 625, 630, [165 A.2d 153 (1960)] and cases cited.’ ” State v. Kwaak, 21 Conn. App. 138, 150-51, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).

Semedo’s testimony actually supported the defendant’s case. The witness never testified to any prior misconduct and affirmed that the defendant was known to be a peaceful man. Only by speculating about Semedo’s testimony could the jury have concluded that the defendant may have shot at the victim on a prior occasion. The jury was instructed not to speculate and is presumed to have followed that instruction. See State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980). Moreover, the defendant argued in his closing remarks that Semedo’s testimony supported his case. Therefore, the admission of Semedo’s rebuttal testimony was not harmful to the defendant.

Ill

The defendant’s final claim is that the trial court should have granted his motion for a new trial on the basis of “errors of constitutional dimension or, in the alternative, errors that deprived the defendant of a fair trial.” As a preliminary matter, we must determine whether the defendant has properly preserved his claim. We conclude that he has not.

The defendant has abandoned any claim of constitutional dimension by failing to brief this issue. Assignments of error, including constitutional errors, that are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982).

The defendant also argued as grounds for this motion for a new trial that the state failed to disclose any consideration offered to Semedo in exchange for his testimony. The defendant now claims that the trial court failed to apply the standards set forth in State v. Acquin, supra. Because the defendant’s claim of error differs from the ground of his objection at trial, it cannot be the basis for concluding reversible error. Birgel v. Heintz, supra.

Finally, the defendant claims that prejudice resulted from Semedo’s testimony because the jury might have inferred that the defendant had shot at the victim on a prior occasion. This was not the basis of the defendant’s motion for a new trial and, as previously noted, was an inference the jury could not have made.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with murder in violation of General Statutes § 53a-54a (a), and was found not guilty on that charge but guilty of the lesser included offense of manslaughter in the first degree.

       A defendant’s evidence of good character may not be attacked by showing particular acts of misconduct. State v. Zdanis, 173 Conn. 189, 194, 377 A.2d 275 (1977).

       The defendant’s claim that the state did not properly disclose the testimony of alleged misconduct as requested in the defendant’s motion for discovery dated July 18, 1988, was not raised at trial when the motion for mistrial was made. Though the issue was raised in the defendant’s first objection to Semedo’s testimony, this objection was not made grounds of the motion for mistrial and cannot be a basis for reversible error.

        State v. Acquin, 34 Conn. Sup. 152, 381 A.2d 239 (1977), is distinguishable from the present case because it explicitly excludes misconduct evidence offered to rebut the defendant’s evidence of good character from the requirement that the state give the defendant ten days prior notice before presenting such evidence.


author: Per Curiam.

text:
    Mary Ellen Guinan v. Direct Marketing Association, Inc., et al.
    (8518)
    Dupont, C. J., Daly, Norcott, Foti and Lavery, Js.
    Remanded on June 7
    decision released July 3, 1990

      Bruce L. Levin, with whom, on the brief, was Serge G. Mihaly, for the appellants (defendants).

      Robert P. Wenten, for the appellee (plaintiff).
   Per Curiam.

This appeal was previously dismissed by this court for lack of a final judgment. Guinan v. Directing Marketing Assn., Inc., 21 Conn. App. 63, 571 A.2d 143, cert. granted, 215 Conn. 812, 576 A.2d 541 (1990). Upon the granting, by the Supreme Court, of the defendants’ unopposed petition for certification, the case was remanded to this court for reconsideration in light of Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990), a Supreme Court case that was published after our decision.

Both Szudora and Guinan involve appeals from the workers’ compensation review division and the finality of a decision of it. The test for determining whether a decision of the review division is a final judgment “turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” Szudora v. Fairfield, supra, 556.

We concluded in Guinan that the amount of compensation due the claimant for her partial disability was not yet capable of a precise mathematical determination because that amount was dependent upon the presentation of evidence by both parties at a hearing yet to be held by a workers’ compensation commissioner and factfinding by the commissioner. The situation, however, as now stated in the defendants’ unopposed petition for certification leads us to a different conclusion. The defendants, in their petition to the Supreme Court, present a narrow question for review as follows: “Whether a decision of the Compensation Review Division affirming the granting of a motion to preclude an employer and its insurance carrier pursuant to General Statutes § 31-297 (b) is a final judgment from which to appeal where the amount of the claimant’s temporary total disability benefits requires only a noncontroversial computation involving only the claimant’s weekly salary and the period of time during which, according to her doctor she was unable to work.”

A decision of the compensation review division is a final judgment if the claimant involved is entitled to temporary total disability benefits and the salary and period of time during which there was an inability to work are known.

The appeal should not have been dismissed, and is, therefore, reinstated.


text:
    City of Bridgeport v. Allan C. Debek, Administrator (Estate of Anthony Debek), et al.
    (8189)
    Dupont, C. J., Daly and O’Connell, Js.

      Argued June 12
    decision released August 7, 1990

      Alan Bleiman, for the appellant (defendant Barbara J. B. Zanesky).

      Matthew Forstadt, with whom were Samuel D. Chester and, on the brief, Robert A. Randich, for the appellee (plaintiff).
   Dupont, C. J.

This appeal is the last remnant of a municipal tax lien foreclosure action instituted in 1981. After a trial on the merits, judgment was rendered for the plaintiff in excess of one million dollars. Several defendants appealed from that judgment, which was affirmed by the Supreme Court. Bridgeport v. Debek, 210 Conn. 175, 554 A.2d 728 (1989). The claim in that appeal was that the court lacked subject matter jurisdiction because there was a failure of service of process. After the affirmance, the plaintiff successfully moved to open the judgment in the trial court for the limited purpose of setting new law days. The defendant, Barbara J. B. Zanesky, trustee, moved to dismiss the action for lack of subject matter jurisdiction and now challenges the denial of that motion. She is the sole defendant in this appeal.

The defendant claims that the trial court lacked subject matter jurisdiction because the plaintiff filed notice of a lis pendens eighteen months after the commencement of the original action, in contravention of General Statutes § 12-175. She also claims that she was entitled to a hearing on her motion to dismiss.

The defendant seeks now to do what she chose not to do in the first appeal, namely, complain of a lack of subject matter jurisdiction. She was a party to the original action and was represented by counsel during a full trial on the merits. A judgment was rendered against her but she took no appeal. The failure to file a notice of lis pendens in accordance with the statute had already occurred by the time judgment was rendered against her. Any lack of jurisdiction, therefore, existed at the time of the trial and the first appeal. The defendant, thus, had the opportunity to contest the alleged lack of subject matter jurisdiction during the trial or by appeal, but did not.

“When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation . . . .” Restatement (Second), Judgments § 12. Subject matter jurisdiction may, however, be raised at any time, where “the subject matter of the action [is] so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority . . . .” Id. A situation where the court lacks the power to hear a particular class of case would fall within this exception. In the present case, it is clear that the original trial court that rendered the judgment for the plaintiff and the trial court that opened the judgment to set new law days had the authority to decide the general class of case, namely, foreclosure actions. See Henry F. Raab Construction, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981).

The defendant does not challenge either court’s jurisdiction over foreclosure actions in this appeal, but challenges instead, nine years after the original judgment, a claimed statutory jurisdictional defect. Moreover, she had a full and fair opportunity to litigate that issue previously. For these reasons, the defendant is precluded in this case from now relitigating the subject matter jurisdiction of the trial court or the validity of the tax liens. See Vogel v. Vogel, 178 Conn. 358, 422 A.2d 271 (1979); Monroe v. Monroe, 177 Conn. 173, 413 A.2d 819 (1979).

The defendant was not entitled to a hearing on the purported invalidity of the tax liens for a variety of reasons. The alleged invalidity should not have been relitigated, there was no dispute over any material fact, and all relevant facts were the subject of a stipulation of the parties.

The court properly denied the motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.


author: O’Connell, J.

text:
    State of Connecticut v. Willie Brown
    (7023)
    Borden, O’Connell and Foti, Js.
    Argued April 11
    decision released August 7, 1990

      Louis S. Avitabile, special public defender, with whom, on the brief, was Denise Dishongh, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Patrick J. Clifford, senior assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant was charged in a substitute information with the crime of murder, in violation of General Statutes § 53a-54a (a). Following a jury trial, he was convicted of the lesser included offense of manslaughter in the first degree, in violation of General Statutes § 53a-55 (a) (1). On appeal he claims the trial court made improper evidentiary rulings and gave an incorrect instruction on self-defense. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. At about 3:15 a.m. on December 21, 1986, the defendant, who was highly intoxicated, arrived at the New Haven apartment of Carol Zimmerman, his former girl friend. He began to pound and kick at the door and the victim, Zimmerman’s new boyfriend, went to investigate. The victim unlocked the door and opened it slightly. As he did so, the defendant reached through the doorway, grabbed the victim by the throat, and pulled his head into the hallway. A moment later, the victim, with his throat slashed, pulled back into the apartment and staggered into the kitchen. He then came out of the kitchen with a knife in his hand, and staggered toward the apartment door, where he collapsed and died.

I

The defendant first claims that the trial court improperly excluded certain statements that he made to third parties after the incident and prior to his arrest. In an offer of proof made in the absence of the jury, the defendant presented the testimony of his wife, his sister-in-law, and a friend. The defendant either visited or telephoned these individuals in the hours after the stabbing. He sought to have the witnesses testify as to what he had said to them. The proffered testimony of each witness was virtually identical. Each testified that the defendant told them that he had “cut” someone but had not meant to do it. The trial court sustained the state’s objection that the testimony was inadmissible hearsay and self-serving. The defendant then' attempted to introduce his poststabbing statements during his own direct examination. The state again successfully objected.

In addressing the defendant’s claims, we begin with the observation that evidentiary rulings of the trial court will be overturned only where the defendant can demonstrate an abuse of discretion and substantial prejudice or injustice. State v. Hernandez, 204 Conn. 377, 390, 528 A.2d 794 (1987). We find no such abuse of discretion here.

Hearsay is defined as any “ ‘out-of-court statement that is offered to establish the truth of the matters contained therein . . . . ” In re Jason S., 9 Conn. App. 98, 103, 516 A.2d 1352 (1986). On appeal, the defendant claims that the statements were admissible under either the party admission or prior consistent statement exceptions to the hearsay rule. Their exclusion, he argues, deprived him of the ability to present a defense.

The short answer to the defendant’s first claim is that a party admission can only be used against the party who makes it. In re Jason S., supra, 104; C. Tait & J. LaPlante, Handbook of Connecticut Evidence (1988) § 11.5.2. The statements in question do not fall within the party admission exception to the hearsay rule because they were being offered by the defendant, the one who made them. In re Jason S., supra; B. Holden & J. Daly, Connecticut Evidence (1988) § 93a, p. 906.

The defendant’s alternative argument, namely that the proffered evidence was admissible under the prior consistent statement exception to the hearsay rule; see State v. Brown, 187 Conn. 602, 608, 447 A.2d 734 (1982); also fails. He did not present this theory to the trial court. Instead, he offered the statements solely for the purpose of showing he lacked the intent to kill the victim. Consequently, we will not review this claim. State v. Kim, 17 Conn. App. 156, 158, 550 A.2d 896 (1988).

Finally, we note that the defendant made these statements in the hours after the stabbing, and he offered them to show that he had not intended to kill the victim. Therefore, all evidence regarding the statements was properly excluded as self-serving. State v. McDowell, 179 Conn. 121, 125, 425 A.2d 935 (1979); State v. Cato, 21 Conn. App. 403, 408-409, 574 A.2d 240 (1990). “[T]o allow [the defendant] to make declarations in support of his cause and then to give those declarations in evidence would, in effect . . . allow him to make evidence in his favor at his pleasure.” B. Holden & J. Daly, supra, § 100; see State v. Swift, 57 Conn. 496, 506, 18 A. 664 (1889). A party would never want for testimony if he could so easily manufacture it. Watson v. Osborne, 8 Conn. 363, 368 (1831).

II

The defendant next claims that the trial court should not have allowed three other defense witnesses to invoke their fifth amendment privileges against self-incrimination in order to avoid answering some of his questions. The defendant sought to have the witnesses testify about the defendant’s use of illegal drugs in the hours preceding the stabbing. Prior to his offer of proof, defense counsel advised the court that he did not intend to ask the witnesses about their own use,’purchase or possession of narcotics. The state’s attorney responded that if any of the witnesses testified to being present when the defendant used drugs, he intended to cross-examine them concerning their own possible purchase, possession and use of drugs and would initiate prosecution if the testimony warranted.

The court advised the witnesses of their fifth amendment rights and allowed each to consult with an attorney. All three subsequently invoked their privileges when asked questions related to the defendant’s drug use on the date in question. In each instance, the court ruled that the use of the privilege was proper because answers to the defendant’s questions would have provided “a link in the chain of evidence” and ultimately would have put the witnesses at risk for a possible narcotics prosecution. We agree.

A criminal defendant has a clear right to compel witnesses to testify on his behalf. U.S. Const., amend. VI; Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). When, however, a defendant’s sixth amendment right conflicts with a witness’ fifth amendment privilege against self-incrimination, the witness’ privilege must prevail. State v. Simms, 170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976). The defendant argues that the witnesses could not invoke the privilege because they were not in danger of prosecution. In the alternative, he asserts that the court could have allowed them to claim it only when cross-examined about their own possibly criminal activities.

The fifth amendment extends to disclosures that merely “furnish a link in the chain of evidence needed to 'prosecute the claimant for a . . . crime.” (Emphasis added.) Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 2d 118 (1951); United States v. Rodriquez, 706 F.2d 31, 36 (2d Cir. 1983). “To sustain the privilege against self-incrimination, it need only be evident from the implications of the question, in the context in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” State v. Erhardt, 17 Conn. App. 359, 364, 553 A.2d 188 (1988).

Thus, the trial court need only decide whether the testimony sought would open the door to the reasonable possibility of prosecution, not whether the testimony would be enough, in and of itself, to support a conviction. Since the defendant here proposed to have the witnesses admit to being present during the commission of a crime, the trial court properly concluded that the answers could have furnished “a link in the chain of evidence” necessary to prosecute the witnesses. Hoffman v. United States, supra.

More importantly, a witness may properly refuse to respond to a question posed on direct examination where an answer could expose him to the risk of self-incrimination on cross-examination. United States v. Rodriquez, supra, 37. If the witnesses testified, the state would have been permitted to cross-examine them on matters related to their credibility. Reese v. United States, 467 A.2d 152, 157 n.7 (D.C. App. 1983). Such questions could properly have included inquiries into the witnesses’ own contemporaneous drug usage. Jaggers v. United States, 482 A.2d 786, 794 (D.C. App. 1984). In light of the state’s expressed intent to cross-examine the witnesses about their own drug-related activities and to initiate prosecution if warranted, we are satisfied that the defendant’s questioning would have exposed the witnesses to the risk of incrimination on cross-examination. The court could not have removed that risk by allowing the privilege to be invoked only on cross-examination. See United States v. Rodriquez, supra; Jaggers v. United States, supra.

Ill

After the witnesses had invoked their fifth amendment privileges, the defendant attempted to admit oral statements made by them to the defendant’s investigator. The statements described the consumption by the witnesses and the defendant of a large amount of alcohol and crack cocaine in the hours before the defendant stabbed the victim. At trial, the defendant argued that the statements were third party statements against penal interest exculpatory to the defendant and, therefore, were admissible under the hearsay exception set forth in State v. Gold, 180 Conn. 619, 630, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980), and State v. DeFreitas, 179 Conn. 431, 450, 426 A.2d 799 (1980). The trial court concluded that the statements did not meet the Gold and DeFreitas tests and were therefore inadmissible.

The defendant now contends that the trial court should not have applied the Gold test, which requires that corroborating circumstances support the trustworthiness of the statement; State v. Gold, supra, 630-31; because the statements here were not exculpatory to the defendant. He claims, rather, that the statements were inculpatory both to the witnesses and to the defendant on the possible collateral narcotics violations. Therefore, the statements were inherently reliable, and their trustworthiness did not have to be established by corroborating circumstances.

The defendant asks that we review this claim even though it was not argued to the trial court. We refuse to do so because we review evidentiary claims “ ‘solely on the ground on which the party’s objection is based.’ State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971). . . . [OJnce the authority and the ground for an objection are stated, our review of the trial court’s ruling is limited to the ground asserted.” State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983). The defendant also argues that the statements could come in under the residual exception to the hearsay rule. State v. Erhardt, supra, 367. This claim also was not raised at trial and likewise will not be reviewed. State v. Kim, supra.

IV

In his final claim, the defendant argues that the trial court should have included references to his intoxication when instructing the jury on self-defense. General Statutes § 53a-19 (a) provides that “a person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.” The jury must view the situation from the defendant’s perspective, and the defendant’s perception ultimately must be found to be reasonable before he can be acquitted on the basis of the defense. State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984).

The defendant argues that the jury should have been allowed to consider his intoxication in determining both what the defendant subjectively perceived at the time of the stabbing and whether that belief was reasonable from the point of view of the reasonably prudent intoxicated person. We disagree. The position taken by the defendant finds no support in Connecticut law and goes against the weight of other authorities, which hold that intoxication has no role in assessing a self-defense claim. See United States v. Yazzie, 660 F.2d 422, 431 (10th Cir. 1987), cert. denied, 455 U.S. 923, 102 S. Ct. 1282, 71 L. Ed. 2d 464 (1982); W. LaFave & A. Scott, Substantive Criminal Law (1986) § 4.10 (d); 1F. Wharton, Criminal Law and Procedure § 215.

Under Connecticut law, voluntary intoxication is not a defense to a criminal charge. General Statutes § 53a-7; State v. Stevenson, 198 Conn. 560, 568, 504 A.2d 1029 (1986). “The logic of the rule that intoxication is not a defense to a crime . . . dictates that it should not be available as a partial defense, effective in conjunction with [self-defense] . . . .” United States v. Yazzie, supra. The defendant would have us abandon the requirement that his conduct be judged ultimately against that of a reasonably prudent person and replace it with what might be euphemistically called the “reasonably prudent drunk” rule. This we decline to do.

Finally, the defendant claims that the jury should have been allowed to consider his intoxication in determining whether he provoked the victim. See General Statutes § 53a-19 (c). A person can be foreclosed from claiming self-defense if he is found to have “acted with the specific intent to elicit the use of physical force by another person in order to cause physical injury or death to that person by . . . retaliating with force against that person.” State v. Hawkins, 19 Conn. App. 609, 616, 563 A.2d 745, cert. denied, 212 Conn. 820, 565 A.2d 540 (1989).

Even if we assume, arguendo, that the defendant’s claimed intoxication could have negated the specific intent requirement of § 53a-19 (c), any omission by the trial court on this point was harmless. See State v. DeMartin, 20 Conn. App. 430, 436, 568 A.2d 1034 (1990). In order to convict the defendant of manslaughter in the first degree, the jury had to find that, regardless of the defendant’s intoxication, he had the specific intent to inflict serious physical injury on the victim. The court properly instructed the jury on the effect of intoxication on the element of intent. Therefore, because the jury found that the defendant’s intent to cause serious physical injury to the victim was not affected by intoxication, the defendant was barred from claiming self-defense; State v. Hawkins, supra; and thus any omission in the instruction was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       Two witnesses refused to answer any questions regarding their contact with the defendant on the day of the stabbing. The third witness admitted to drinking with the defendant but refused to answer any questions about the defendant’s drug use.

       Under State v. Gold, 180 Conn. 619, 633, 431 A.2d 501 (1980), trustworthiness is determined by considering “(1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; [and] (4) the availability of the declarant as a witness.”

       We note in passing that even if we did review the defendant’s claim, it would have no merit. The statements in question are clearly exculpatory to the defendant because they could possibly exonerate him or reduce the degree of punishment to which he might be exposed. State v. Gold, 180 Conn. 619, 630 n.5, 431 A.2d 501 (1980).

       General Statutes § 53a-19 (c) provides: “Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”


author: Lavery, J.

text:
    State of Connecticut v. John Safford
    (8281)
    Spallone, O’Connell and Lavery, Js.
    Argued April 18
    decision released August 7, 1990

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Paul J. Ferencek, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert Carlson, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, pursuant to a plea agreement, of sexual assault in the first degree in violation of General Statutes § 53a-70. He claims that the trial court should be reversed because (1) it failed to conduct an evidentiary hearing on the defendant’s oral motion to withdraw his guilty plea, and (2) it sentenced the defendant after actively participating in pretrial plea negotiations.

The defendant was charged with first degree sexual assault and unlawful restraint. He initially pleaded not guilty, but as a result of plea negotiations during jury selection, he changed his plea on the sexual assault charge to guilty. In return, the state agreed not to press the unlawful restraint charge. The trial court, Schaller, J., conducted an extensive canvass of the defendant, inquiring into the details of the sentencing arrangements and ascertaining that the defendant had not been coerced or threatened into pleading guilty. The trial court then accepted the defendant’s guilty plea.

When the defendant appeared before the trial court, Arena, J., for sentencing, he declared that he wished to withdraw his guilty plea and to elect a jury trial. The defendant claimed to have been confused at the time of his guilty plea, and to have been told that because the victim’s grandfather was a judge and her father a lawyer, he would automatically lose if he stood trial. The trial court, noting that it had “before it no evidence that his plea was anything but voluntar[y],” denied the defendant’s motion. The defendant appealed, and we affirm the trial court’s judgment.

The defendant first claims that the trial court’s failure to hold, sua sponte, an evidentiary hearing on his motion to withdraw his guilty plea violated his due process rights. U. S. Const., amend. XIV; Conn. Const., art. I, § 8. Specifically, the defendant, relying on State v. Crenshaw, 210 Conn. 304, 312, 554 A.2d 1074 (1989), claims that the specific allegations he made when he moved to withdraw his guilty plea, taken as true, furnished a sufficient basis for the withdrawal of the plea and thus necessitated an evidentiary hearing on the motion. We disagree.

The state, citing State v. Watson, 198 Conn. 598, 504 A.2d 497 (1986), argues that, because the defendant did not request an evidentiary hearing on his motion to withdraw the plea, the court’s failure to hold such a hearing is now unreviewable. This argument is merit-less. Watson can be read to suggest no more than that the defendant’s failure to request an evidentiary hearing is a consideration to be weighed by the reviewing court. Id., 612. The defendant preserved this claim by moving to withdraw the plea, and adequately briefed the issue in this court. We are, therefore, obliged to review it.

After a guilty plea is accepted but before the imposition of sentence, the court is obligated to permit withdrawal upon proof of one of the grounds in Practice Book § 721. Where the record of the plea proceeding and other information in the court file conclusively establish that the motion is without merit, the trial court may dispose of the motion without holding an evidentiary hearing. State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980), citing Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461, 36 L. Ed. 2d 169 (1973); see also State v. Morant, 20 Conn. App. 630, 633, 569 A.2d 1140 (1990). If, however, any specific allegations of fact, taken as true, furnish a basis for withdrawal of the plea under § 721 and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, an evidentiary hearing is required. State v. Torres, supra, 185-86. Finally, the trial court may disregard any allegations of fact, whether contained in the motion or in an offer of proof, that are either conclusory, vague, or oblique. Id.; State v. Morant, supra.

In the present case, the defendant, in making his motion to withdraw, alleged that he “didn’t quite understand” what his attorney was telling him, and that he “had everything confused.” He also alleged that his plea was the product of coercion, in that he “was told that [because] the [victim’s] grandfather was a judge and [her] father was a lawyer,” he would “automatically lose” if he went to trial. Judge Arena, who was familiar with the pretrial history of the defendant’s case, denied the motion to withdraw the plea, noting that the defendant was “familiar with the criminal justice system,” and that he was “no novice to this court system.”

Implicit in the defendant’s claim that he believed he could not get a fair trial because of the victim’s familial connections to the legal community was the assumption that he was unsophisticated enough to believe that his right to a fair trial was automatically jeopardized by the “fact” that the victim’s father and grandfather were legal professionals. The comments of Judge Arena indicate that, based on his familiarity with the defendant and the procedural history of his prosecution, he did not ascribe such naivete to the defendant, but rather viewed him as one experienced at exploiting the judicial system’s potential for delay.

We note further that in making these allegations the defendant did not name the supposed relatives or even specify whether they practiced in Connecticut. The allegation thus is weakened by its lack of specificity. Further, the defendant did not attempt to show how these relatives of the victim would be able to influence the outcome of his trial. Lastly, the defendant did not disclose the source of his information. The weight given to such information, in the mind of a lay person, would vary according to the source. It is significant that the defendant did not allege that the source of the information was his own or any other lawyer. The trial court, accordingly, found that the defendant failed to present any ground that, “in [the] court’s opinion, states that the plea . . . entered by [the defendant] was not entered voluntarily and with a full understanding of the plea agreement.”

The record of the plea canvass supports the denial of the motion to withdraw. The agreed upon sentence, which Judge Arena ultimately imposed, was discussed and the defendant’s understanding of it ascertained. The canvass was thorough and presented the defendant with numerous opportunities to clarify anything he did not understand, or to vent any concerns he may have had regarding the victim’s family’s legal connections. The court plainly told the defendant that he would not be able to change his plea again as of right once it was accepted by the court. The defendant’s silence at the canvass regarding his claimed confusion and concern over the legal connections of the victim’s family supports the sentencing court’s conclusion that these grounds were meritless, in that they did not bear on the defendant’s decision to plead guilty. We affirm the sentencing court’s denial of the motion to withdraw the plea.

The defendant next claims that his sentence was tainted by Judge Arena’s extensive and allegedly improper participation in the plea negotiations. The sentencing court’s participation in these negotiations, he claims, violated his federal and state constitutional rights to due process.

The defendant’s protestations on appeal are belied by his failure to preserve this issue for review by moving for disqualification pursuant to Practice Book § 997. The claim therefore appears before us swaddled in the hopeful, if threadbare, mantle of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). See State v. Cosby, 6 Conn. App. 164, 172, 504 A.2d 1071 (1986). Except in the most extraordinary circumstances, however; see State v. Evans, supra; appellate claims must be the product of trial counsel’s efforts, not those of appellate counsel sifting through the record after the fact, trawling for issues undreamt of at trial.

The prohibition against trial judges’ participating in plea negotiations is not, in itself, a matter of constitutional law; Flores v. Estelle, 578 F.2d 80, 85 (5th Cir. 1978), cert. denied, 440 U.S. 923, 99 S. Ct. 1253, 59 L. Ed. 2d 477 (1979); provided that the plea is not judicially coerced and remains voluntary. Id. The available record does not show that the participation of Judge Arena, who was not the trial judge in this case but the presiding judge who supervised plea bargains, in the plea bargain resulted in a judicially coerced or otherwise involuntary plea. Accordingly, this unpreserved claim is not of constitutional proportion and will not be reviewed further. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Our refusal to review this claim is buttressed by the possibility that the defendant’s failure to make his objections known at the sentencing was not mere inadvertence but a trial tactic. Permitting appellate review of completely unpreserved yet minimally supported claims of judicial bias resulting from participation in plea negotiations would clear the way for the most pernicious sort of sandbagging, whereby trial counsel, secure in the knowledge that he can appeal tomorrow what he does not preserve today, purposely neglects to move for disqualification of a judge and thus avoids annoying the judge who is preparing to sentence his client. Defense counsel was silent in the face of Judge Arena’s references to the court’s active participation in the plea negotiations. “ ‘When the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial . . . is seriously undercut.’ [State v. Huff, 10 Conn. App. 330,] 338, [523 A.2d 906, cert. denied 203 Conn. 809, 525 A.2d 523 (1987)].” State v. Chapman, 16 Conn. App. 38, 48, 546 A.2d 929 (1988).

The judgment is affirmed.

In this opinion the other judges concurred.

       At the defendant’s sentencing hearing the following colloquy took place:
      “The Defendant: Good afternoon. The day that I pled guilty, I didn’t quite understand what my attorney was telling me. That day I had like kind of had everything confused in my head and everything, but what I would gather in my own mind, right, I was told that on the condition that the plaintiff’s grandfather was a judge and the plaintiff’s father was a lawyer, if I went to a jury trial automatically I would lose, so I took that in my mind saying well, what’s the sense of going to a jury trial if I’m going to lose automatically, so I might take what they give me. I’m not guilty. I’d like to change my plead back to not guilty because I’m not guilty. I’d like my chance to go to trial.
      “The Court: Your plea was canvassed, was it not?
      “The Defendant: Excuse me, sir?
      “The Court: Your plea was canvassed by the judge that you pled?
      “The Defendant: I don’t know, sir. That day I was having migraine headaches because I was having trouble with the judge.
      “[Defense Counsel]: Hold on. Let me answer the question. Jury selection was before Judge Schaller. I think there was a plan that he was going to be tried before Judge Higgins, but Judge Schaller I believe took the guilty plea. What he is claiming is no part of the canvass was a discussion that we had with this court and that was fully canvassed. And if he wants to withdraw his plea, I suppose the court will give him a short continuance to get a transcript.
      “The Defendant: I’d like to have my opportunity in a jury trial to get a fair trial.
      “The Court: Why should I do anything? This matter was called for jury selection before Judge Schaller. This court was involved in extensive discussions concerning this matter over a long period of time. That started when I was first assigned here in March of 1988. This defendant is familiar with the criminal justice system. He pleads to the charge on the eve of trial. Now, two months later or how much later, he indicates that he wishes to withdraw his plea. This court has before it no evidence that his plea was anything but voluntarily entered. . . . The court also can take knowledge of the fact he’s represented by an experienced criminal defense lawyer. This court is not going to allow this defendant to play around with the criminal justice system. Motion for withdrawal of the plea of guilty is denied.
      “The Defendant: Could I speak now, sir?
      “The Court: No. Yes, you may. I’ll set it—yes, you may speak, Mr. Safford. I’m going to continue to proceed with your sentence today.
      “The Defendant: Okay. Can I speak now, sir?
      “The Court: Yes.
      “The Defendant: Okay. Sir. When I was in picking a jury, I had specific years in the case then. I’m told information that, you know, like this is what changed my mind. I am innocent. And inside, you know, I’m innocent, and I’d like to have my right to a jury trial. All right. The reason I changed my mind I was told, sir, that because of the plaintiff’s grandfather is a judge and plaintiff’s father is a lawyer, if I go on trial I am going to automatically lose. So what’s the sense on going to jury trial if I’m going to automatically lose. So I just took what the prosecutor offered, which is, what, five years from what I’m told, and I didn’t know it was ten years suspended after five until I got papers from my attorney. I didn’t know about probation.
      “Mr. Klein: I think that’s enough.
      “The Defendant: And I’m innocent. I’d like my opportunity to go to jury trial.”

       Practice Book § 997 provides: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”

       Before sentencing the defendant, the court made the following remarks: “The Court: Record may reflect that this court’s taking a very active part in all the discussions leading up to the entry of the plea. This court was involved in pretrial discussions I believe commencing last March or April of 1988. Mr. Safford was shown substantial consideration by the state in the nolling of other cases while this particular case was pending. The matter was continued on a number of occasions if the court recollects correctly. The victim in this particular case was not available to the state for a period of time because she was in the state of California, but also indicated an ability to return to this state in the event that a trial became necessary. Subsequently, this matter was reached for trial and, at that point, this defendant entered a plea. This court has heard nothing today that in any way in this court’s opinion states that the plea that was entered by Mr. Safford was not entered voluntarily with a full understanding of the plea agreement. The plea was entered on the eve of trial. Mr. Safford now feels, in this court’s opinion, that he can take advantage and be allowed to withdraw—be allowed permission to withdraw his plea of guilty. Mr. Safford is no novice to this court system.”


author:
Lavery, J.
      O’Connell, J.

text:
    Joseph Pokorny v. Getta’s Garage et al.
    (8157)
    O’Connell, Foti and Lavery, Js.

      Argued January 11
    decision released August 7, 1990

      Lawrence J. Merly, with whom, on the brief, was Nicholas E. Wocl, for the appellant (plaintiff).

      Thomas A. Mulligan, with whom, on the brief, was Linda C. Christiani, for the appellees (defendants).
   Lavery, J.

The plaintiff, an employee-claimant, appeals from a decision of the compensation review division upholding the compensation commissioner’s denial of interest on the commissioner’s March 18,1988 finding and award and upholding the commissioner’s decision denying him $175,521.43 in hospital and medical expenses. We reverse the review division’s decision.

The facts pertinent to this appeal are as follows. On June 7, 1979, the plaintiff, while employed as a tow truck operator, was dispatched to assist in the removal of an overturned truck on Interstate 95. The overturned truck had spilled diesel fuel, and the plaintiff inhaled fumes from the fuel. As a result, he became dizzy and was transported to Stamford Hospital. While in the hospital emergency room, he sustained a brain stem stroke secondary to basilar artery occlusion. The stroke rendered him facially paralyzed and a quadriplegic. He also permanently lost his voice. The defendant employer, Getta’s Garage, and the defendant worker’s compensation insurance carrier, the American Home Insurance Company, denied coverage.

The plaintiff incurred extensive medical and hospital expenses, which were paid by the plaintiff’s health insurance carrier under a group policy he had through his employer. His group health policy was cancelled on March 1,1984; thereafter, the plaintiff had to procure his own medical insurance policy. The compensation commissioner did not hear the plaintiffs compensability claim until 1986; on September 11,1986, the commissioner found that the plaintiffs claim was work related and compensable. The defendants were ordered to pay disability benefits at the rate of $160 per week, plus dependency and cost of living allowances retroactive to June 7,1979, such payments to continue as long as the plaintiff remained totally disabled. The commissioner ordered the defendants to pay all of the plaintiff’s medical, surgical, and hospital expenses incurred in connection with the 1979 injury. The commissioner ordered that if the parties were unable to agree on the payment for the health services, either party could request further hearings on the subject.

The commissioner also found that the defendants had not unreasonably contested liability in the claim and that there was no undue delay in either the adjustment or compensation of the claim, but rather that any delay was primarily due to the nature of the claim and the significant issues of medical causation. Accordingly, the commissioner denied the plaintiff’s claims for interest and attorney’s fees.

The defendants appealed the commissioner’s finding of compensability to the compensation review division but never prosecuted the appeal and withdrew it prior to argument before the compensation review division. The plaintiff and the defendants were unable to agree on payment for medical services and a formal hearing was held on February 1,1988. On March 18,1988, the commissioner issued his decision, in which he again denied the plaintiffs claim for interest and attorney’s fees on the same grounds as in the first decision. The commissioner also found that the private medical carrier that had paid medical and hospital expenses on behalf of the plaintiff totalling $175,521.43 had not filed a lien or claim for repayment of all or any part of that sum. The commissioner, therefore, denied the plaintiff’s claim for payment of that sum. The plaintiff appealed to the compensation review division from the decision of the commissioner failing to award him interest and failing to award him the $175,521.43 in medical and hospital expenses already paid by the medical insurance carrier. The compensation review division upheld the commissioner on both issues. We reverse the decision on both issues.

I

Interest

The commissioner based his denial of interest on his finding that the delay was due not to the fault or neglect of the defendants, but to the complexity of the medical issues. The injury took place on June 7, 1979. The hearing on compensability was in 1986 and on the remaining issues in 1988, seven and nine years after the injury.

There is no question that there was a long delay between the injury and the award. In Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 181, 355 A.2d 227 (1974), the Supreme Court expressed its opinion that three years is a disturbingly long duration between injury and award. There is no question that the delay suffered by the plaintiff called into play General Statutes § 31-300, which governs the commissioner’s awarding of interest.

The commissioner did in fact consider the applicability of the statute, and we do not disturb his conclusion that the delay was not the fault of the defendants, or his denial of an interest award based upon that part of the statute. See Balkus v. Terry Steam Turbine, supra. Section 31-300 provides, however, a second basis for the award of interest to the claimant. The commissioner improperly failed to make findings or a decision under this second, relevant passage in the statute, which provides: “In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed six per cent per annum, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than six per cent per annum to be upon the employer or insurer.”

Clearly, even without fault or negligence on the part of the defendants, there has been significant delay in adjusting and paying this claim. Although the injury had occurred on June 7,1979, the first award was dated September 11,1986, and the second award was dated March 18, 1988. The case is now over ten years old. When deciding a claim for interest, the commissioner cannot ignore relevant sections of the statute. In this case, the commissioner did not take into account the advantages the defendants have enjoyed from the use of the money over a nine year period. Nor did the defendants show that they earned less than 6 percent on the money they did not pay out.

The defendants’ claim that the plaintiff’s interest claim is res judicata is without merit because the record does not reveal that the defendants timely asserted the doctrine. Res judicata is an affirmative defense that must be pleaded. Nikitiuk v. Pishey, 153 Conn. 545, 553, 219 A.2d 225 (1966); Goer Bros., Inc. v. Mott, 144 Conn. 303, 310, 130 A.2d 804 (1957). It appears from the record that the defendants raise it for the first time in this court, when it should have been raised in the trial court. On remand, if the plaintiff is awarded interest it would be on the findings and awards made as a result of the February 1,1988 hearing and not the September 18,1986 hearing. The commissioner must exercise his discretion relative to the second provision of the statute.

II

Medical Payments

If the defendants had not contested the plaintiffs claims, they would have been responsible for the immediate payment of the plaintiffs medical expenses. General Statutes § 31-294. When the defendants contested the plaintiffs compensation claim, however, the plaintiffs group medical insurance provider, pursuant to General Statutes § 38-174n, was obligated to pay his medical expenses. The plaintiff’s private health carrier paid $175,521.43 on his behalf.

Prior to the effective date of General Statutes § 38-174U, October 1,1981, the private health carrier had no right to file a lien on workers’ compensation awards for reimbursement for benefits or services furnished and our Supreme Court, in Grogan v. New Britain, 175 Conn. 174, 181-82, 397 A.2d 97 (1978), has concluded that, absent a statute, an employer is not entitled to a deduction or a setoff. Thereafter, however, that statute was amended to provide that any insurer that furnished benefits or services to a person suffering an injury or illness covered by workers’ compensation could place a lien on the proceeds of any compensation award to the extent of benefits paid for the effects of the injury or illness arising out of and in the course of employment as a result of a controverted claim.

It is undisputed that the plaintiff’s private insurance carrier has not, from October 1,1981, until the present ever filed a lien. The plaintiff makes three arguments why the defendant has no right to withhold the payment of the $175,521.43. First, the injury took place on June 7,1979, and the law giving the private health insurer carrier a lien was not effective until October 1, 1981, and operated prospectively, not retrospectively. Second, the defendants’ obligation to pay the plaintiff’s medical bills did not change in the absence of a lien. The lien is for the benefit of the private health insurance carrier and not the employer or his workers’ compensation insurance carrier. Third, since no appeal was effectuated on the issue of compensability from the September 11,1986 finding and award, and since the issue was not reopened at the February 1,1988 hearing, the judgment of the commissioner is final and the plaintiff is entitled to have his medical bills paid by the defendants.

The defendants, on the other hand, argue that if they pay the plaintiff the costs of his medical expenses, the plaintiff would obtain a double recovery. We address these claims seriatim.

The plaintiff’s first argument is correct with respect to all expenses paid prior to October 1,1981. The health carrier’s lien arises at the time such benefits are paid or such services are rendered. General Statutes § 38-174n (c). Since there was no right of lien prior to October 1,1981, all the services paid and benefits rendered up to October 1, 1981, were not subject to lien by the private health insurance carrier. General Statutes § 31-294, on the other hand, was in effect at the time of the plaintiff’s injury, and provides in pertinent part: “The employer, as soon as he has knowledge of any such injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish such medical and surgical aid or hospital or nursing service ... as such physician or surgeon deems reasonable or necessary.” Section. 31-294 clearly places the responsibility on the employer to furnish all necessary medical and rehabilitative services, and § 31-299a precludes the employer from interposing the health insurance carrier’s payments as a defense against its own liability for those expenses. The defendants are liable to the plaintiff for the payment of all of his medical and rehabilitation bills and services prior to October 1, 1981.

Second, since no lien has been filed prior to either the 1986 or 1988 findings and awards, the plaintiff is entitled to the payment of the entire $175,521.43. There is nothing in the statutes that allows the defendants to withhold payments to the plaintiff of his medical expenses except § 38-174n, the goal of which was not to benefit an employer who denied liability, but to benefit the private health insurer who assumes the responsibilities for the payment of the medical bills while the workers’ compensation claim is litigated before the commissioner. The compensation review division held that the employer is mandated by the statute to pay the medical and hospital expenses even if those expenses have been paid by a carrier other than the workers’ compensation carrier. It went on, however, to say that “[l]ogic supports claimant’s contention that the employer should not benefit from the private carrier’s payment, but neither should the claimant enjoy unjust enrichment. Section 38-174n governs the situation. Under that statute the private insurance carrier paying the hospital expenses has a lien against the workers’ compensation employer and carrier when those respondents are ultimately found to be liable for the compensable injury. If any order were to be entered against the compensation carrier for the payment of medical expenses that order would enure to the benefit of the paying private carrier. . . . The law cannot permit this claimant to enjoy a windfall, i.e., to be paid twice for his medical expenses.”

This reading of §§ 31-294 and 38-174n is simply incorrect. Even if § 38-174n had been in effect at the time of the plaintiff’s injury, absent a lien imposed by the health insurance carrier, the employer is still bound to pay the employee his medical expenses, regardless of any payments made by the health insurance carrier. The legislature could have provided for direct payments to the private health insurance carrier but instead provided for the mechanism of a lien as set forth in § 38-174n. The burden is on the health insurance carrier to pursue its reimbursement. The statute clearly provides that a lien is effective for the private health insurer for any award made after the notice is given. Section 31-299a (a) provides: “Where an employer contests the compensability of an employee’s claim for compensation benefits, proof of payment made under a group health, medical or hospitalization plan or policy shall not be a defense to a claim for benefits under this chapter.”

Since no lien was filed, the defendant is liable to the plaintiff for the medical expenses as provided by § 31-294. The commissioner does not have the power to award a credit. General Statutes § 31-278; Love v. J. P. Stevens & Co., 21 Conn. App. 9, 18, 570 A.2d 1136 (1990). Since the issue of compensability and the amounts of the plaintiffs medical and hospital expenses were not appealed, the judgment of the commission is final as to those issues. General Statutes § 31-300.

Finally, the argument advanced by the defendants, of unjust enrichment, applies as much to the defendants as to the plaintiff. The plaintiff had a contractual relationship with his private health insurance carrier. Section 38-174n provided a method for the private health insurer to be reimbursed under the workers’ compensation statutes. The private insurance carrier of the plaintiff did not take advantage of the statute. Our Supreme Court, in Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 490, 528 A.2d 826 (1987), discussed the double recovery argument in interpreting a different section of the Workers’ Compensation Act. The Skitromo court said, “ ‘[although one of the purposes of § 31-293 is to avoid double recovery, it does not protect those who are less than vigilant in safeguarding their own legal rights.’ ” This line of reasoning was followed in Love v. J. P. Stevens & Co., supra, and we follow it in the present case.

Since the private insurance carrier did not file a lien prior to the 1986 or 1988 findings and awards, the plaintiff must be paid in full for all of his hospital, medical and other related expenses, as set forth in § 31-294. The interpretation by the compensation review division clearly is contrary to law and to the longstanding rule that the Workers’ Compensation Act be construed liberally in favor of the claimant. Adzima v. UAC/Norden Division, 177 Conn. 107, 411 A.2d 924 (1979).

The decision of the compensation review division is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion Foti, J., concurred.

O’Connell, J.

dissenting. I disagree in several respects with the majority’s decision on the second issue.

I

The majority misconstrues the Workers’ Compensation Act as requiring an employer to pay an employee’s medical expenses when, in fact, the act only requires that the employer furnish medical and surgical care. General Statutes § 31-294 provides in pertinent part that “[t]he employer, as soon as he has knowledge of any . . . injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary.” (Emphasis added.) The plaintiff, therefore, has a statutory right to such surgical care for his injuries. He does not have a statutory right to be “reimbursed” for bills that he never paid nor will ever be required to pay.

The majority appears to accept the plaintiff’s argument that he is entitled to double recovery under the collateral source rule of tort law. The rule provides that in personal injury cases, where an injured person sues a tortfeasor, his damages may not be reduced because his own insurance carrier has paid his medical expenses. Roth v. Chatlos, 97 Conn. 282, 288, 116 A. 332 (1922). The rationale behind this rule is that a tortfeasor should not benefit by having the damages he must pay reduced by the plaintiff’s prudence in carrying insurance. Gorham v. Farmington Motor Ins., Inc., 159 Conn. 576, 579-80, 271 A.2d 94 (1970); Todd v. Malafronte, 3 Conn. App. 16, 23, 484 A.2d 468 (1984).

Importing the collateral source rule into workers’ compensation law runs counter to the theory underlying workers’ compensation. The rules of tort law and those of workers’ compensation law are not interchangeable. “ ‘Workers’] compensation legislation established almost a complete substitute for the common law of torts, as it affected the liability of industrial employers to their employees. . . .’ 1 Harper & James, Torts (1956), pp. xlii-xliii.” Mingachos v. CBS, Inc., 196 Conn. 91, 98 n.10, 491 A.2d 368 (1985). The Workers’ Compensation Act compromises an employee’s right to a tort action for work related injuries in exchange for relatively quick and certain compensation. “Almost every major error that can be observed in the development of compensation law, whether judicial or legislative, can be traced to the importation of tort ideas . . . .” 1 A. Larson, Workmen’s Compensation Law (1990), § 1.20, pp. 2-3. Furthermore, it is ironic that the majority now brings into workers’ compensation law a doctrine that has been largely abandoned in Connecticut tort law by means of legislation popularly referred to as Tort Reform I and Tort Reform II. General Statutes §§ 52-225a, 52-225b, 52-225c.

II

The majority also misinterprets the purpose of General Statutes § 38-174n. This statute grants to any provider of medical benefits or services a lien on benefits paid under the workers’ compensation act; it does not affect the relationship between the employer and employee. Whether the health insurance carrier here has taken the necessary steps to protect its interest is not before us, and, accordingly, § 38-174n is irrelevant to this case.

Ill

While the majority is correct in saying that General Statutes § 31-299a “precludes the employer from interposing the health insurance carrier’s payments as a defense against its own liability for those expenses,” it fails to recognize that the defendants have not presented such an argument. Instead, the defendants have acknowledged their liability for the full $175,521.43 but contend that the money is owed to the plaintiff’s health insurer under § 38-174n and not to the plaintiff.

IV

The majority improperly relies on Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 490, 528 A.2d 826 (1987), and Love v. J. P. Stevens & Co., 21 Conn. App. 9, 570 A.2d 1136 (1990). Both cases are concerned with actions against third party tortfeasors and are irrelevant to the present case.

V

In conclusion, although I recognize the firmly established principle that workers’ compensation issues are to be liberally construed in favor of the employee; English v. Manchester, 175 Conn. 392, 397-98, 399 A.2d 1266 (1978); I do not find that this policy has given rise to a judicial trend favoring double recovery by the employee. Indeed, the trend seems to be in the opposite direction. See, e.g., McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615, 546 A.2d 893 (1988). In McGowan, the claimant was denied recovery under the Workers’ Compensation Act when he had already been compensated for the same injuries under the Federal Long Shoremen’s and Harbor Workers’ Compensation Act. Id., 619; see also Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 725 n.8, 100 S. Ct. 2432, 65 L. Ed. 2d 458 (1980).

I would hold that a claimant is entitled to reimbursement for medical expenses only if he has actually paid them, or if a third party has paid them and the claimant is under a legal obligation to repay the third party. In the present case, I would allow reimbursement to the plaintiff only for those expenses incurred after his employer terminated his health insurance coverage.

Accordingly, I respectfully dissent.

       General Statutes § 38-174n (c) provides: “The lien shall arise at the time such benefits are paid or such services are rendered. The person or entity furnishing such benefits- or services shall serve written notice upon the employee, the insurance company providing workers’ compensation benefits or the employer, if self-insured, and the workers’ compensation commissioner for the district in which the claim for workers’ compensation has been filed, setting forth the nature and extent of the lien allowable under subsection (b). The lien shall be effective against any workers’ compensar tion award after the notice is received. ” (Emphasis added.)